State v. Kozic

[Cite as State v. Kozic, 2018-Ohio-816.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 17 MA 0100
V. )
) OPINION
ZOLTAN KOZIC )
AKA JOEY KOZIC, )
)
DEFENDANT, APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 2010 CR 506
JUDGMENT: Reversed and Remanded.
APPEARANCES:
Attorney Paul Gains
Mahoning County Prosecutor
For Plaintiff-Appellee Attorney Ralph Rivera
Assistant Prosecutor
Mahoning County Prosecutor’s Office
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503-1426
For Defendant-Appellant Attorney Cynthia Henry
P.O. Box 4332
Youngstown, Ohio 44515
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: February 27, 2018
[Cite as State v. Kozic, 2018-Ohio-816.]
DONOFRIO, J.
{¶1} Defendant-appellant, Zoltan Kozic, appeals from a Mahoning County
Common Pleas Court judgment resentencing him pursuant to a remand from this
Court.
{¶2} On May 20, 2010, a Mahoning County Grand Jury issued a 22-count
indictment alleging a criminal enterprise among appellant, Jamie Kozic, and Jennifer
Kozic. Of those 22 counts, appellant was indicted on nine counts: six counts of
burglary, second-degree felonies in violation of R.C. 2911.12(A)(2)(C); two counts of
drug trafficking, third-degree felonies in violation of R.C. 2925.03(A)(1)(C)(1)(c); and
one count of engaging in a pattern of corrupt activity, a first-degree felony in violation
of R.C. 2923.32(A)(1)(B).
{¶3} The matter proceeded to a jury trial. The trial court dismissed one
count of burglary. The jury convicted appellant of the remaining counts: five counts
of burglary (counts 3, 5, 6, 7, and 8); two counts of drug trafficking (counts 14 and
15); and one count of engaging in a pattern of corrupt activity (count 22). The trial
court sentenced appellant to an aggregate term of 18 years in prison.
{¶4} Appellant appealed his conviction and sentence. State v. Kozic, 7th
Dist. No. 11 MA 160, 2014-Ohio-3788. This Court affirmed in part and reversed in
part. We reversed appellant’s convictions on count 14 (third-degree felony drug
trafficking) and count 15 (third-degree felony drug trafficking) and remanded for the
trial court to enter convictions on the lesser-included offense of fourth-degree felony
drug trafficking on both counts and to resentence appellant accordingly. Id. at ¶ 95.
We affirmed the remainder of appellant’s convictions and sentences. Id.
{¶5} On remand, the trial court entered convictions on the lesser included
offenses of fourth-degree felony drug trafficking on counts 14 and 15. Once again
the trial court imposed an 18-year prison term. And once again, appellant appealed.
State v. Kozic, 7th Dist. No. 15 MA 0215, 2016-Ohio-8556, appeal not allowed, 149
Ohio St. 3d 1433, 2017-Ohio-4396, 76 N.E.3d 1209.
{¶6} This time on appeal, this Court found that the trial court erred by failing
to advise appellant at his resentencing hearing that the parole board can impose a
-2-
prison term of up to one half of his original sentence for violating postrelease control.
Id. at ¶ 18. Therefore, we reversed appellant’s sentence in part and remanded the
matter to the trial court for a limited resentencing hearing for the proper advisement
and imposition of postrelease control. Id.
{¶7} On March 9, 2017, pursuant to this Court's remand, the trial court held
another resentencing hearing. The trial court once again imposed a total sentence of
18 years.
{¶8} Appellant filed a timey notice of appeal on June 7, 2017. He now raises
two assignments of error.
{¶9} Appellant’s first assignment of error states:
THE TRIAL COURT VIOLATED THE APPELLANT’S RIGHT TO DUE
PROCESS UNDER THE FOURTEENTH AMENDMENT OF THE UNITED
STATES CONSTITUTION AND ARTICLE I SECTION 16 OF THE OHIO
CONSTITUTION AND IS CONTRARY TO LAW.
{¶10} Appellant argues the trial court erred when it failed to properly advise
him of the longest applicable period of postrelease control at the May 8 2017
resentencing hearing. He contends the trial court erroneously advised him that he
faced a three-year period of postrelease control. Yet he states that because he was
convicted of a first-degree felony, the applicable period of postrelease control is five
years.
{¶11} Plaintiff-appellee, the State of Ohio, concedes error as to this
assignment of error.
{¶12} According to the Ohio Supreme Court, proper postrelease control
notification “includes ‘notifying the defendant of the details of the postrelease control
and the consequences of violating postrelease control,’ * * * including whether
postrelease control is discretionary or mandatory, * * * and the term of supervision[.]”
State v. Grimes, 151 Ohio St. 3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 11 (Internal
citation omitted).
-3-
{¶13} Appellant was convicted of two fourth-degree felonies, five second-
degree felonies, and a first-degree felony. Due to the varying levels of the offenses,
appellant was subject to a discretionary three-year postrelease control period, a
mandatory three-year postrelease control period, and a mandatory five-year
postrelease control period. R.C. 2967.28(B).
{¶14} Pursuant to R.C. 2967.28(F)(4)(c), if an offender is subject to more than
one postrelease control period, the period of postrelease control for all of the
sentences shall be the period that expires last, as determined by the parole board or
court. Moreover, periods of post-release control are to be served concurrently. R.C.
2967.28(F)(4)(c). Therefore, in multiple-offense cases, the trial court need only notify
the defendant of the longest applicable period of postrelease control. State v. Darks,
10th Dist. No. 12AP-578, 2013-Ohio-176, ¶ 11.
{¶15} In this case then, the trial court was only required to advise appellant of
the mandatory five-year postrelease control period. But it did not properly advise
appellant at the resentencing hearing.
{¶16} At the resentencing hearing, the trial court stated, “and advising
defendant that when he’s released from prison he could be subject to - - he would be
subject to a period of post-release control for three years[.]” (March 9, 2017 Tr. 5).
{¶17} The trial court did properly set out the mandatory five-year postrelease
control period in the May 8, 2017 judgment entry of resentencing. But “even if the
postrelease control advisement is given in the judgment entry, a new sentencing
hearing is required when the advisement was not given at the sentencing hearing.”
State v. Hill, 7th Dist. No. 16 JE 0021, 2017-Ohio-4006, ¶ 13. Therefore, this matter
must be remanded yet again so that the trial court may properly advise appellant of
his mandatory five-year period of postrelease control.
{¶18} Accordingly, appellant’s first assignment of error has merit and is
sustained.
{¶19} Appellant’s second assignment of error states:
THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS
-4-
WHEN JUDGE SWEENEY PRESIDED AT THE RESENTENCIGN HEARING,
AS A RESULT THE U.S. CONSTITUTION AND OHIO CONSTITUTION
REQUIRE RESENTENCING.
{¶20} Appellant argues the trial court judge should have been disqualified
from resentencing him. Appellant notes that this Court has remanded this case on
several occasions for resentencing. Each time, the same judge has presided over
the resentencing hearings. Appellant asserts that as a result, he has lost confidence
in the judicial system.
{¶21} In State v. Drummond, 7th Dist. Mahoning No. 05 MA 197, 2006-Ohio-
7078, ¶ 105, this court addressed the issue of disqualification:
R.C. 2701.03 provides the proper procedure for seeking disqualification
of a common pleas court judge. See, also, Section 5(C) of Article IV of
the Ohio Constitution. An appellate court is without authority to pass
upon issues of disqualification or to void a judgment on the basis that a
judge should be disqualified for bias or prejudice.
{¶22} Accordingly, appellant’s second assignment of error is without merit and
is overruled.
{¶23} For the reasons stated above, the trial court’s judgment is reversed
solely on the matter of postrelease control. This matter is remanded for resentencing
only for the court to issue the proper postrelease control advisement.
Waite, J., concurs
Robb, P., J., concurs