State v. Wrenn , 2011 Ohio 5640 ( 2011 )

[Cite as State v. Wrenn, 2011-Ohio-5640.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25616
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARSHALL L. WRENN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 08 12 4016
DECISION AND JOURNAL ENTRY
Dated: November 2, 2011
WHITMORE, Judge.
{¶1} Defendant-Appellant, Marshall Wrenn, appeals from the judgment of the Summit
County Court of Common Pleas. This Court affirms in part and vacates in part.
I
{¶2} On February 19, 2009, Wrenn was found guilty by a jury of obstructing official
business, assault, and resisting arrest and ultimately pleaded guilty to robbery as well. On March
6, 2009, the trial court sentenced him to a total term of four years and eleven months in prison.
On December 28, 2009, Wrenn filed a motion to terminate his sentence on the grounds that he
was improperly notified of post-release control. On January 27, 2010, the trial court held a
resentencing hearing to advise Wrenn of post-release control. On February 23, 2010, the trial
court issued a nunc pro tunc journal entry to correct the language in the March 6, 2009
sentencing entry regarding post-release control.
2
{¶3} On May 5, 2010, Wrenn moved the court for a final sentencing order, arguing that
the March 6, 2009 sentencing entry was void due to additional defects in the post-release control
notification. The State conceded there was an error, and the court scheduled the matter for a
hearing. On July 12, 2010, following a new hearing, the trial court issued a sentencing entry that
corrected the defects in the post-release control language, but also reduced the total length of
Wrenn’s sentence.
{¶4} Wrenn now appeals from the trial court’s July 12, 2010 sentencing entry and
raises two assignments of error for our review. We consolidate the assignments of error because
we find State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, to be dispositive.
II
Assignment of Error Number One
“DEFENSE COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO
CHALLENGE THE APPELLANT’S SPEEDY TRIAL RIGHTS PURSUANT
TO O.R.C. § 2945.71 AND/OR THE DUE PROCESS CLAUSE IN THE
FOURTEENTH AMENDMENT WITH THE SIXTEEN MONTH DELAY
AFTER A HUNG JURY.”
Assignment of Error Number Two
“THE TRIAL COURT LACKED JURISDICTION TO SENTENCE
APPELLANT PURSUANT TO CRIMINAL RULE 32(C)[.]”
{¶5} In his assignments of error, Wrenn argues that his sentence should be vacated
because: (1) defense counsel was ineffective when he failed to challenge Wrenn’s speedy trial
rights prior to the sentence imposed in July 2010; and (2) the court lost jurisdiction to sentence
him when it allowed his convictions to lie dormant for more than sixteen months after his trial.
We disagree.
“Fischer dictates that an invalid post-release control notification does not taint the
entirety of an offender’s sentence. Instead, ‘when a judge fails to impose
statutorily mandated post[-]release control as part of a defendant’s sentence,
3
[only] that part of the sentence is void and must be set aside.’ Fischer at ¶26. A
resentencing must be limited to the imposition of post-release control. Id. at ¶27-
28. *** [T]his Court has recognized that a trial court exceeds its sentencing
authority when it conducts a de novo sentencing to correct a post-release control
error. State v. Cool, 9th Dist. Nos. 25135 & 25214, 2011-Ohio-1560, at ¶4-6.
Because resentencing is limited to the imposition of post-release control, any
additional action taken by the trial court with respect to the sentence is a nullity.
Id.” State v. Stiggers, 9th Dist. No. 25486, 2011-Ohio-4225, at ¶6.
The new sentencing hearing that a defendant is entitled to “is limited to proper imposition of
post-release control.” Fischer at ¶29. “[O]nly the offending portion[s] of the sentence is subject
to review and correction.” Id. at ¶27. The Court also held that res judicata “applies to other
aspects of the merits of a conviction, including the determination of guilt and the lawful elements
of the ensuing sentence.” Id. at paragraph three of the syllabus. Thus, in post-Fischer cases
where a trial court has erroneously conducted a de novo resentencing to remedy a post-release
control error, this Court has excised the proper post-release control notification portion of the
new sentencing entry and vacated the remainder of the entry. Cool at ¶5.
{¶6} In the instant case, the trial court conducted a de novo sentencing hearing to
correct Wrenn’s post-release control error as well as modify a portion of the sentence. Pursuant
to Fischer, it lacked the authority to do so. Fischer at ¶26-28. Yet, the post-release control
portion of the court’s July 12, 2010 sentencing entry is correct, and Wrenn does not contest the
accuracy of his mandatory post-release control notification. Therefore, “[t]he remainder of the
trial court’s action in resentencing [Wrenn] exceeded the trial court’s jurisdiction and is a nullity.
Accordingly, this Court vacates the remainder of the trial court’s [July 12, 2010] judgment.”
Cool at ¶5. Accord State v. Stallworth, 9th Dist. No. 25461, 2011-Ohio-4492, at ¶35-36.
{¶7} Pursuant to Fischer, Wrenn is barred from raising any issues other than defects in
post-release control. Because his first assignment of error addresses issues beyond the scope of
his resentencing, it is not properly before us and is overruled. With regard to his second
4
assignment of error, Wrenn argues that the unreasonable delay between his initial conviction and
resentencing deprived the court of jurisdiction such that he could not be resentenced. He cites
Crim.R. 32(C) in support of his argument.
{¶8} As a threshold matter, we note that Wrenn errs in his reliance upon Crim.R. 32(C)
as the basis for his argument. Crim.R. 32(A) addresses unnecessary delay in the imposition of a
sentence. Crim.R. 32(A) (requiring sentences to be “imposed without unnecessary delay”).
Accordingly, Wrenn’s argument actually pertains to Crim.R. 32(A), not Crim.R. 32(C). Further,
this Court has held that Crim.R. 32(A) does not apply in cases where an offender must be
resentenced. State v. Spears, 9th Dist. No. 24953, 2010-Ohio-1965, at ¶19, citing State v. Huber,
8th Dist. No. 85082, 2005-Ohio-2625, at ¶8. Wrenn was promptly sentenced after he was found
guilty. Pursuant to R.C. 2929.191(A)(1), a trial court retains jurisdiction to conduct a
resentencing in order to correct defects in post-release control. Accordingly, Wrenn’s argument
that the court lacked jurisdiction to resentence him lacks merit. His second assignment of error
is overruled.
III
{¶9} Wrenn’s assignments of error are overruled. The trial court’s July 12, 2010
sentencing entry is vacated with the exception of the post-release control portion of the entry.
Wrenn’s original sentencing entry remains valid. The judgment of the Summit County Court of
Common Pleas affirmed in part and vacated in part, consistent with the foregoing opinion.
Judgment affirmed in part,
and vacated in part.
There were reasonable grounds for this appeal.
5
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J.
MOORE, J.
CONCUR
APPEARANCES:
MARSHALL L. WRENN, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.