State v. Harris

[Cite as State v. Harris, 2011-Ohio-1626.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 10-CA-49
JASON HARRIS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas Case No. 2006-CR-651H
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 29, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JAMES J. MAYER, JR. RANDALL E. FRY 0011432
38 South Park Street 10 West Newlon Place
Mansfield, Ohio 44902 Mansfield, Ohio 44902
KIRSTIN PSCHOLKA-GARTNER
0077792
Assistant Prosecuting Attorney
(Counsel of Record)
[Cite as State v. Harris, 2011-Ohio-1626.]
Delaney, J.
{¶1} Defendant-Appellant Jason Harris appeals the March 26, 2010
resentencing entry of the Richland County Court of Common Pleas, convicting him of
felonious assault with a three-year firearm specification, one count of domestic violence,
and one count of having a weapon while under a disability. The trial court resentenced
Appellant pursuant to State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, due to the
omission of the manner of conviction in Appellant’s original 2007 sentencing entry.
{¶2} The facts underlying Appellant’s present appeal were elicited in his direct
appeal in State v. Harris, 5th Dist. No. 2007-CA-0059, 2008-Ohio-2681. We adopt
those facts for purposes of this appeal.
{¶3} Appellant filed a direct appeal of his 2007 conviction to the Fifth District
Court of Appeals in case number 2007-CA-0059. In that proceeding, he raised five
assignments of error, including claims of ineffective assistance of counsel and denial of
his statutory right to a speedy trial. In an opinion dated June 2, 2008, this Court
affirmed the Appellant’s convictions, finding all five assignments of error to be without
merit.
{¶4} Appellant then appealed to the Supreme Court of Ohio, who declined to
accept jurisdiction of his case on October 29, 2008.
{¶5} Following the denial of his direct appeal, Appellant filed a post-conviction
Motion for Reconsideration of Sentence in the trial court on August 10, 2009. That
motion was overruled on August 20, 2009. Thereafter, Appellant filed an appeal with
this Court in case number 09-CA-115. The appeal was dismissed on Appellant’s own
motion on November 25, 2009. Appellant then filed a motion for resentencing in the trial
Richland County, Case No. 10-CA-49 3
court, claiming that his entry was not a final appealable order because it did not comply
with the requirements of State v. Baker (2008), 119 Ohio St.3d 197, 893 N.E.2d 163.
Pursuant to that motion, Appellant was resentenced on March 26, 2010.
{¶6} Appellant now appeals to this court for the third time from his original
convictions; however, he has not limited his claims to his resentencing. He argues that
since his original sentencing entry was not a “final appealable order” his first direct
appeal was invalid. Accordingly, he now argues that he is entitled to appeal all errors
which arose from his trial.
{¶7} Appellant raises nine Assignments of Error:
{¶8} “I. THE TRIAL COUNSEL FOR THE DEFENDANT-APPELLANT
COMMITTED INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT OBJECTING TO
THE RE-SENTENCING HEARING.
{¶9} “II. THE TRIAL COURT ERRED PREJUDICIALLY BY FAILING TO
DISCHARGE THE DEFENDANT-APPELLANT PURSUANT TO O.R.C. 2945.73 AFTER
NOT BRINGING THE DEFENDANT-APPELLANT TO PRELIMINARY HEARING
WITHIN TEN DAYS AFTER HIS ARREST.
{¶10} “III. THE DEFENDANT-APPELLANT’S TRIAL COUNSEL COMMITTED
INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO FILE FOR A
DISCHARGE PURSUINT [SIC] TO O.R.C. 2945.73 AND FOR THE COURT
VIOLATING O.R.C. 2921.52(A)(4)(C), AND VIOLATING O.R.C.2921.45.
{¶11} “IV. THE TRIAL COURT ERRED BY GRANTING ATTORNEY BERNARD
DAVIS’ MOTION OF CONTINUANCE FILED ON SEPTEMBER 28, 2006.
Richland County, Case No. 10-CA-49 4
{¶12} “V. THE TRIAL COUNSEL COMMITTED INEFFECTIVE ASSISTANCE
OF COUNSEL FOR FILING THE MOTION OF CONTINUANCE OF SEPTEMBER 28,
2006.
{¶13} “VI. THE TRIAL COURT ERRED IN NOT DISMISSING THE CASE
AGAINST THE DEFENDANT-APPELLANT FOR VIOLATION OF TIME LIMITS
STATED IN O.R.C. 2945.71.
{¶14} “VII. TRIAL COUNSEL FOR THE DEFENDANT-APPELLANT
COMMITTED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO ARGUE
THAT THE CONTINUANCE FILED ON SEPTEMBER 28, 2006, WAS INSUFFICIENT
TO TOLL THE SPEEDY TRIAL TIME AS DESIGNATED IN O.R.C. 2545.71[SIC] AND
MUST BE CHARGED TO THE PLAINTIFF-APPELLEE.
{¶15} “VIII. THE TRIAL COURT ERRED IN ISSUEING [SIC] A WARRANT FOR
THE DEFENDANT-APPELLANT’S ARREST ON NOVEMBER 28, 2006.
{¶16} “IX. THE TRIAL COURT ERRED IN NOT DISMISSING THE CASE AS
THE DEFENDANT-APPELLANT’S SPEEDY TRIAL RIGHTS WERE VIOLATED AS
ENUMERATED IN O.R.C. 2945.71 AND THEREFORE, PURSUANT TO O.R.C.
2945.73 THE DEFENDANT-APPELLANT SHOULD HAVE BEEN DISCHARGED.”
I - IX
{¶17} Appellant seeks to relitigate multiple claims from his original conviction in
2007. He was given the opportunity of a direct appeal at that time, and also was able to
file a post-conviction petition and litigate additional substantive claims.
{¶18} Subsequent to the Ohio Supreme Court’s decision in State v. Baker
(2008), 119 Ohio St.3d 197, 893 N.E.2d 163, Appellant requested to be resentenced
Richland County, Case No. 10-CA-49 5
because the judgment entry did not contain the manner of conviction, i.e., that Appellant
had been convicted by a jury. Appellant was then resentenced on March 26, 2010, to
include the language that he was convicted by a jury and now appeals from that
resentencing; however, he does not limit his arguments to the resentencing with respect
to the conviction by a jury. Instead he seeks to relitigate prior substantive claims as well
as raise new claims. We do not find this to be the intent of the Supreme Court in Baker.
{¶19} In State v. Griffin, 5th Dist. No. 09-CA-21, 2010-Ohio-3517, Judge
Hoffman, in his dissent, stated as follows:
{¶20} “There is a distinction to be made between the finality of judgments for the
purpose of appeal and the type of finality that is required to preclude further litigation on
the issue between the parties”. Michaels Bldg. Co. v. City of Akron (Nov. 25, 1987),
Summit App. No. 13061.
{¶21} “Because Appellant herein previously invoked appellate review and
nothing in the order as it then existed prohibited or affected her ability to address all
issues relating to her previous conviction, Appellant should be judicially estopped from
now asserting our previous appellate court ruling is not entitled to law of the case status.
To hold otherwise violates the invited error doctrine and allows Appellant the proverbial
“second bite at the apple.””
{¶22} Since the decisions in Baker and in Griffin, the Supreme Court has
decided the case of State v. Fischer (2010), -- N.E.2d --, 2010-Ohio-6238{¶23} In Fischer, in 2002, a judge sentenced Fischer to an aggregate term of 14
years' imprisonment for aggravated robbery, felonious assault, having a weapon while
under disability, and two counts of aggravated burglary, all with firearms specifications.
Richland County, Case No. 10-CA-49 6
A timely direct appeal followed, and his convictions were affirmed by the court of
appeals. State v. Fischer, 9th Dist. No. 20988, 2003-Ohio-95, (rejecting sufficiency-of-
the-evidence claims and Batson challenges).
{¶24} Several years later, Fischer successfully moved pro se for resentencing
after the Supreme Court issued its decision in State v. Bezak, 114 Ohio St.3d 94, 2007-
Ohio-3250, 868 N.E.2d 961 (holding that a sentence that omits a statutorily mandated
postrelease term is void) because he had not been properly advised of his postrelease-
control obligations. Thereafter, the trial court properly notified Fischer of those
obligations and reimposed the remainder of the sentence. Fischer appealed.
{¶25} On appeal, Fischer asserted that because his original sentence was void,
his first direct appeal was “not valid” and that this appeal is in fact “his first direct appeal”
in which he may raise any and all issues relating to his conviction. State v. Fischer, 181
Ohio App.3d 758, 2009-Ohio-1491, 910 N.E.2d 1083, ¶ 4 and 5. The court of appeals
rejected his claim, holding that the appeal was precluded by the law-of-the-case
doctrine. Id. at ¶ 7-8.
{¶26} The Ohio Supreme Court granted discretionary review of a single
proposition arising from the appeal: whether a direct appeal from a resentencing
ordered pursuant to State v. Bezak was a first appeal as of right. State v. Fischer, 123
Ohio St.3d 1410, 2009-Ohio-5031, 914 N.E.2d 206. They held that it is not.
{¶27} Similarly, we do not find that Appellant’s resentencing in the present case
allows him the opportunity to reopen his direct appeal for a second bite of the apple.
{¶28} As the Fischer Court noted, “A motion to correct an illegal sentence
‘presupposes a valid conviction and may not, therefore, be used to challenge alleged
Richland County, Case No. 10-CA-49 7
errors in proceedings that occur prior to the imposition of sentence.’ ” Edwards v. State
(1996), 112 Nev. 704, 708, 918 P.2d 321, quoting Allen v. United States (D.C.1985),
495 A.2d 1145, 1149. It is, however, an appropriate vehicle for raising the claim that a
sentence is facially illegal at any time. Id. The scope of relief based on a rule, like
Fed.R.Crim.P. 35, is likewise constrained to the narrow function of correcting only the
illegal sentence. It does not permit reexamination of all perceived errors at trial or in
other proceedings prior to sentencing. See, e.g., Hill v. United States (1962), 368 U.S.
424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417.” Id. at ¶25.
{¶29} Similarly, because a judge failed to indicate the mandated manner of
conviction as part of a defendant's sentence in 2007, that part of the sentence is void
and must be set aside. Neither the Constitution nor common sense commands
anything more.
{¶30} However, we hold that the new sentencing hearing to which an offender is
entitled is limited to including the proper manner of conviction, which legitimately could
be corrected by a nunc pro tunc entry as it could be considered a clerical error.
Appellant, having already had the benefit of one direct appeal, could not raise any and
all claims of error in a second, successive appeal. Fischer, supra, at ¶ 33, citing 181
Ohio App.3d 758, 2009-Ohio-1491, 910 N.E.2d 1083. In Fischer, the Supreme Court
pointed out that the court of appeals based its decision on the law-of-the-case doctrine,
which provides that “the decision of a reviewing court in a case remains the law of that
case on the legal questions involved for all subsequent proceedings in the case at both
the trial and reviewing levels.” Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, 462 N.E.2d
410.
Richland County, Case No. 10-CA-49 8
{¶31} Nothing in Baker, supra, discusses void or voidable sentences. Rather,
the syllabus speaks only to the requirement that the judgment of conviction set forth “the
sentence” in addition to the other necessary aspects of the judgment. The fact that the
sentence was illegal does not deprive the appellate court of jurisdiction to consider and
correct the error. In fact, R.C. 2953.08(G)(2)(b) expressly authorizes a reviewing court
to modify or vacate any sentence that is “contrary to law.” Clearly, no such authority
could exist if an unlawful sentence rendered a judgment nonfinal and unappealable.
{¶32} Accordingly, we decline to address the merits of Appellant’s assignments
of error as they do not raise issues related to the narrow function of including the
manner of conviction.
{¶33} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Delaney, J.
Gwin, P.J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
Richland County, Case No. 10-CA-49 9
Farmer, J., dissents
{¶34} I respectfully dissent from the majority's view that appellant's resentencing
pursuant to Baker does not allow him the opportunity to reopen his direct appeal for a
"second bite of the apple."
{¶35} In support of its position, the majority analyzes the Supreme Court of
Ohio's decision in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. Fischer
involved the failure to properly sentence on postrelease control. The Fischer court, at
paragraphs three and four of the syllabus, held the scope of an appeal from a
resentencing hearing is limited to issues arising during the resentencing hearing:
{¶36} "Although the doctrine of res judicata does not preclude review of a void
sentence, res judicata still applies to other aspects of the merits of a conviction,
including the determination of guilt and the lawful elements of the ensuing sentence.
{¶37} "The scope of an appeal from a resentencing hearing in which a
mandatory term of postrelease control is imposed is limited to issues arising at the
resentencing hearing."
{¶38} On the issue of res judicata and postrelease control resentences, the
Fischer court explained the following at ¶30-31:
{¶39} "Correcting the defect without remanding for resentencing can provide an
equitable, economical, and efficient remedy for a void sentence. Here, we adopt that
remedy in one narrow area: in cases in which a trial judge does not impose postrelease
control in accordance with statutorily mandated terms. In such a case, the sentence is
void. Principles of res judicata, including the doctrine of the law of the case, do not
Richland County, Case No. 10-CA-49 10
preclude appellate review. The sentence may be reviewed at any time, on direct appeal
or by collateral attack.
{¶40} "Our decision today is limited to a discrete vein of cases: those in which a
court does not properly impose a statutorily mandated period of postrelease control. In
cases involving postrelease control, we will continue to adhere to our narrow, discrete
line of cases addressing the unique problems that have arisen in the application of that
law and the underlying statute. In light of the General Assembly's enactment of R.C.
2929.191, it is likely that our work in this regard is drawing to a close, at least for
purposes of void sentences. Even if that is not the case, however, we would be ill-
served by the approach advocated by the dissent, which is premised on an unpalatable
and unpersuasive foundation."
{¶41} Following the Fischer case, the Supreme Court of Ohio issued a decision
in State ex rel. DeWine v. Burge, ___ Ohio St.3d ___, 2011-Ohio-235. In this case,
Justice Lanzinger, in a concurring opinion at ¶24, discussed whether new appellate
rights emerge from a Baker violation:
{¶42} "I concur in the court's opinion, but write separately to note that our
decision today leaves open the question whether new appellate rights arise from a new
sentencing entry issued in order to comply with Crim.R. 32(C).FN2 We have held that a
sentencing entry that violates Crim.R. 32(C) renders that entry nonappealable. State ex
rel. Culgan v. Medina Cty. Court of Common Pleas, 119 Ohio St.3d 535, 2008-Ohio-
4609, 895 N.E.2d 805, ¶9. In light of the facts of the present case, we eventually will
need to determine what effect an appellate decision has when the appellate court's
Richland County, Case No. 10-CA-49 11
jurisdiction was premised upon a sentencing entry that violated Crim.R. 32(C) and was
thus nonappealable.
{¶43} "FN2. The state has raised this issue in its second proposition of law in
State v. Allen, case No. 2010-1342, 126 Ohio St.3d 1615, 2010-Ohio-5101, 935 N.E.2d
854, and State v. Smith, case No. 2010-1345, 126 Ohio St.3d 1615, 2010-Ohio-5101,
935 N.E.2d 854, both of which we accepted for review and held for our decision in the
case. The issue is also pending in State v. Lester, which we agreed to review on order
of a certified conflict and on a discretionary appeal, case Nos. 2010-1007, 126 Ohio
St.3d 1581, 2010-Ohio-4542, 934 N.E.2d 354 and 2010-1372, 126 Ohio St.3d 1579,
2010-Ohio-4542, 934 N.E.2d 353."1
{¶44} I therefore conclude there has been no guidance provided to the appellate
courts on the applicability of res judicata to a non-final order pursuant to Baker. Based
upon the case law as it stands today, I would find there was no final appealable order
until the March 26, 2010 judgment entry on resentencing, and appellant is entitled to a
review of his assignments of error.
________________________________
HON. SHEILA G. FARMER
1
I note as of March 23, 2011, the Allen and Smith cases are still stayed, and Lester is currently set
for oral argument on April 6, 2011.
[Cite as State v. Harris, 2011-Ohio-1626.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JASON HARRIS :
:
Defendant-Appellant : Case No. 10-CA-49
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed
to Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER