State v. Dwyer

[Cite as State v. Dwyer, 2023-Ohio-24.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2022-CA-30
:
v. : Trial Court Case No. 2020 CR 0831
:
JAMES A. DWYER : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on January 6, 2023
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MEGAN A. HAMMOND, Attorney for Appellee
J. DAVID TURNER, Attorney for Appellant
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TUCKER, P.J.
{¶ 1} Defendant-appellant James A. Dwyer appeals from a judgment of the Greene
County Court of Common Pleas, which sentenced him to an aggregate prison term of 33
to 38 years following our remand in State v. Dwyer, 2d Dist. Greene No. 2021-CA-16,
2022-Ohio-490 (“Dwyer I”). Dwyer claims the sentence is contrary to law because the
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trial court did not provide the sentencing notifications set forth in R.C. 2929.19(B)(2)(c).
Because this argument is beyond the scope of our remand in Dwyer I, it is not subject to
review. Accordingly, we affirm the judgment of the trial court.
I. Facts and Procedural Background
{¶ 2} In 2021, Dwyer was convicted of attempted murder, aggravated robbery, and
felonious assault as well as the three-year firearm specification accompanying each of
the offenses. “The trial court imposed an indefinite minimum prison term of 10 years with
a maximum prison term of 15 years for the attempted murder conviction; a minimum and
maximum prison term of eight years for the aggravated robbery conviction, and a
minimum and maximum prison term of six years for the felonious assault conviction. All
three terms were ordered to run consecutively, for a minimum prison term of 24 years
and a maximum prison term of 29 years. The trial court also imposed three-year prison
sentences for each of the firearm specifications to be run consecutively and prior to the
sentence of 24 to 29 years, for an aggregate prison term of 33 to 38 years.” Dwyer I at
¶ 11.
{¶ 3} Dwyer filed a direct appeal of his convictions, raising six assignments of error.
Relevant hereto, in his fifth assignment of error, Dwyer claimed that the trial court erred
by imposing a prison term for the firearm specification accompanying the felonious
assault conviction. In sustaining the assignment of error, we stated:
Although a trial court ordinarily may impose only one additional three-
year prison term for multiple firearm specifications committed as part of the
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same act or transaction (see R.C. 2929.14(B)(1)(b)), an exception is
created by R.C. 2929.14(B)(1)(g), which provides:
If an offender is convicted of or pleads guilty to two or more
felonies, if one or more of those felonies are aggravated
murder, murder, attempted aggravated murder, attempted
murder, aggravated robbery, felonious assault, or rape, and if
the offender is convicted of or pleads guilty to a specification
of the type described under division (B)(1)(a) of this section in
connection with two or more of the felonies, the sentencing
court shall impose on the offender the prison term specified
under division (B)(1)(a) of this section for each of the two most
serious specifications of which the offender is convicted or to
which the offender pleads guilty and, in its discretion, also may
impose on the offender the prison term specified under that
division for any or all of the remaining specifications.
Here, Dwyer was convicted of attempted murder, aggravated
robbery, and felonious assault and, as to each count, he was also convicted
of a three-year firearm specification of the type described under R.C.
2929.14(B)(1)(a). Therefore, the trial court was required to impose the
three-year prison term specified under R.C. 2929.14(B)(1)(a) “for each of
the two most serious specifications” of which Dwyer was convicted. In short,
R.C. 2929.14(B)(1)(a) obligated the trial court to impose separate prison
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terms for the three-year firearm specifications accompanying the attempted
murder and aggravated robbery convictions. Additionally, the court had the
discretion to impose a prison term for the three-year firearm specification
accompanying the felonious assault conviction.
A review of the sentencing hearing transcript reveals that the trial
court referred to the prison term imposed for the firearm specification
accompanying the felonious assault conviction as “an additional mandatory
term of 3 years mandatory incarceration * * *.” Tr. p. 276. Likewise, the
court's sentencing entry refers to the prison term for the third firearm
specification as “an additional MANDATORY term of 3 years actual
incarceration.”
Under R.C. 2929.14(B)(1)(g), the trial court had discretion to
sentence appellant to a three-year prison term on the third firearm
specification. However, the court could not have been exercising its
discretion if it believed, as it articulated both at the sentencing hearing and
in its judgment entry, that the sentence was “mandatory.” State v.
Bradford, 8th Dist. Cuyahoga No. 105217, 2017-Ohio-8481, ¶ 40.
Because the trial court concluded, contrary to R.C. 2929.14(B)(1)(g),
that imposition of a three-year prison term on the third firearm specification
was mandatory, the trial court erred by failing to exercise its discretion,
thereby rendering that portion of Dwyer's sentence contrary to law.
Dwyer I at ¶ 46-50.
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{¶ 4} We reversed that “portion of the judgment imposing [a] prison term on the
firearm specification accompanying the felonious assault conviction” and remanded the
matter to the trial court “for the sole purpose of resentencing Dwyer regarding the firearm
specification attached to the felonious assault count.” Id. at ¶ 59. The judgment of the
trial court was otherwise affirmed.
{¶ 5} The trial court conducted a resentencing hearing on May 4, 2022. At that
time, the trial court imposed the exact same sentence it had previously imposed, except
it noted that it had and was exercising the discretion to impose a three-year prison
sentence on the third firearm specification.
{¶ 6} Dwyer appeals.
II. Sentencing
{¶ 7} The sole assignment of error asserted by Dwyer states:
DWYER’S SENTENCE IS CONTRARY TO LAW WHEN THE TRIAL
COURT FAILED TO COMPLY WITH THE REQUIRED NOTICES
CONTAINED IN R.C. 2929.19(B)(2)(c).
{¶ 8} A sentence is contrary to law if the trial court sentences an offender to an
indefinite prison term under the Reagan Tokes Law and fails to advise the offender during
the sentencing hearing of all the notifications set forth in R.C. 2929.19(B)(2)(c). State v.
Massie, 2d Dist. Clark No. 2020-CA-50, 2021-Ohio-3376, ¶ 18, 23. These notifications
are:
(i) That it is rebuttably presumed that the offender will be released from
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service of the sentence on the expiration of the minimum prison term
imposed as part of the sentence or on the offender's presumptive earned
early release date, as defined in section 2967.271 of the Revised Code,
whichever is earlier;
(ii) That the department of rehabilitation and correction may rebut the
presumption described in division (B)(2)(c)(i) of this section if, at a hearing
held under section 2967.271 of the Revised Code, the department makes
specified determinations regarding the offender's conduct while confined,
the offender's rehabilitation, the offender's threat to society, the offender's
restrictive housing, if any, while confined, and the offender's security
classification;
(iii) That if, as described in division (B)(2)(c)(ii) of this section, the
department at the hearing makes the specified determinations and rebuts
the presumption, the department may maintain the offender's incarceration
after the expiration of that minimum term or after that presumptive earned
early release date for the length of time the department determines to be
reasonable, subject to the limitation specified in section 2967.271 of the
Revised Code;
(iv) That the department may make the specified determinations and
maintain the offender's incarceration under the provisions described in
divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to
the limitation specified in section 2967.271 of the Revised Code;
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(v) That if the offender has not been released prior to the expiration of the
offender's maximum prison term imposed as part of the sentence, the
offender must be released upon the expiration of that term.
R.C. 2929.19(B)(2)(c)(i)-(v).
{¶ 9} The State concedes the trial court failed to give these necessary notices
during the initial sentencing. However, as noted by the State, this error occurred at the
original sentencing and was not raised in Dwyer I.
{¶ 10} “The scope of an appeal from a new sentencing hearing is limited to issues
that arise at the new sentencing hearing.” State v. Wilson, 129 Ohio St.3d 214, 2011-
Ohio-2669, 951 N.E.2d 381, ¶ 30. In Wilson, the Supreme Court of Ohio analyzed the
scope of a trial court's resentencing hearing following an error and an appeal from that
resentencing decision. Wilson stated, “[a] remand for a new sentencing hearing
generally anticipates a de novo sentencing hearing. R.C. 2929.19(A). However, a
number of discretionary and mandatory limitations may apply to narrow the scope of a
particular resentencing hearing. * * * [O]nly the sentences for the offenses that were
affected by the appealed error are reviewed de novo; the sentences for any offenses that
were not affected by the appealed error are not vacated and are not subject to review.”
(Citations omitted.) Id. at ¶ 15.
{¶ 11} “The law of the case doctrine requires lower courts to follow the mandates
of reviewing courts when ‘confronted [on remand] with substantially the same facts and
issues as were involved in the prior appeal.’ Thus, litigants are not permitted to make
new arguments to the trial court on remand that were raised or could have been raised
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on the first appeal. ‘[A]ll questions which existed on the record, and could have been
considered on the first petition in error, must ever afterward be treated as settled by the
first adjudication of the reviewing court.’” State v. Hultz, 9th Dist. Wayne No. 07CA43,
2008-Ohio-4153, ¶ 5, quoting Neiswinter v. Nationwide Mut. Ins. Co., 9th Dist. Summit
No. 23648, 2008-Ohio-37, ¶ 10.
{¶ 12} Dwyer could have raised the error in sentencing of which he now complains
during his initial appeal. Because he failed to do so, we are barred by the doctrine of res
judicata from addressing the error.
{¶ 13} The sole assignment of error is overruled.
III. Conclusion
{¶ 14} The judgment of the trial court is affirmed.
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WELBAUM, J. and LEWIS, J., concur.