State v. Lozada

[Cite as State v. Lozada, 2012-Ohio-4599.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98083
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EDWIN LOZADA
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-523795
BEFORE: Stewart, P.J., S. Gallagher, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: October 4, 2012
ATTORNEY FOR APPELLANT
Ruth Fischbein-Cohen
3552 Severn Road, Suite 613
Cleveland Heights, OH 44118
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Scott Zarzycki
Mary Court Weston
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} This appeal by defendant-appellant Edwin Lozada is from a resentencing on a
firearm specification following a limited remand by this court. Lozada complains that
the court failed to advise him during resentencing that he would be subject to mandatory
postrelease control. We reject this contention, finding that the limited nature of the
remand for resentencing did not require the court to resentence on those counts for which
sentence had previously and properly been imposed.
{¶2} A jury found Lozada guilty of two counts of aggravated murder, each with
one-year, three-year, and five-year firearm specifications; felonious assault, with
one-year, three-year, and five-year firearm specifications; and tampering with evidence.
We affirmed his conviction in State v. Lozada, 8th Dist. No. 94902, 2011-Ohio-823.
{¶3} Lozada then sought to reopen his appeal claiming, among other things, that
appellate counsel was ineffective for failing to raise as error his sentence to two, five-year
terms on firearm specifications — he claimed that those offenses were committed in
connection with two felonies as part of the same act or transaction. We granted the
application to reopen the appeal and, as relevant to this appeal, vacated Lozada’s sentence
in part with respect to the five-year firearm specification for the first murder count and
the five-year firearm specification for the felonious assault count, and remanded the case
for resentencing with instructions for the court to merge the five-year firearm
specifications. State v. Lozada, 8th Dist. No. 94902, 2011-Ohio-823, reopening granted,
2012-Ohio-8, ¶ 12.
{¶4} On remand for resentencing on the firearm specifications, the court merged
the five-year firearm specifications for the murder and felonious assault counts and
reimposed the same sentences on the counts left undisturbed by the remand.
{¶5} Lozada argues that the court erred because it did not re-advise him of
postrelease control. An appellate court’s vacation of some offenses does not “affect the
validity of either the conviction or sentence ordered on those offenses that remained
undisturbed in the first appeal.” State v. Thomas, 8th Dist. No. 97185, 2012-Ohio-2626,
¶ 2. We addressed a similar issue to the one raised here by Lozada in State v. Norris, 8th
Dist. No. 95485, 2011-Ohio-1795. Norris was resentenced after the state conceded that
two of her offenses were allied offenses of similar import. Norris claimed on appeal
from resentencing that the court erred by failing to again advise her that she would be
subject to postrelease control. We stated:
We agree with the State’s assertion that the trial court was not required to
reimpose postrelease control at the resentencing hearing. As the Ohio
Supreme Court made clear in State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, “a sentencing hearing on remand is
limited to the issue found to be in error on the appeal.” State v. Fischer,
128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶16, citing Saxon.
This court remanded solely for merger of the allied offenses and correction
of the conviction entry regarding that issue. Therefore, the three years
mandatory postrelease control period imposed at Norris’s original
sentencing and set forth in the trial court’s original conviction entry was
still valid upon remand, and the trial court had no obligation to orally
reimpose postrelease control. Id. at ¶ 19.
{¶6} The court properly imposed postrelease control during Lozada’s first
sentencing, so that put the issue to an end. The remand ordered in Lozada’s previous
appeal was for the sole purpose of merging firearm specifications, a mandate that the
court carried out at resentencing. The court had no duty to re-advise Lozada that he
would be subject to postrelease control. The assigned error is overruled.
{¶7} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution. A certified
copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR