State v. Ellis

[Cite as State v. Ellis, 2013-Ohio-4399.]
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2012 CA 45
v. : T.C. NO. 06CR527
CHARLES ELLIS : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 30th day of September , 2013.
..........
NATHANIEL R. LUKEN, Atty. Reg. No. 0067191, Assistant Prosecutor, 61 Greene Street,
Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
ANDREW D. LUCIA, Atty. Reg. No. 0067191, P. O. Box 122, Troy, Ohio 45373
Attorney for Defendant-Appellant
..........
FROELICH, J.
{¶ 1} Charles Ellis appeals from a judgment of the Greene County Court of
Common Pleas, which resentenced him, on the State’s motion, due to the improper
2
imposition of postrelease control in the original sentencing proceedings. For the following
reasons, the judgment of the trial court will be affirmed.
{¶ 2} In 2007, pursuant to a plea agreement, Ellis pled guilty to one count of
vandalism, five counts of assault, one count of intimidation of a witness, and four counts of
harassment by an inmate; he also pled no contest to one count of retaliation. Two other
counts were dismissed. Ellis was found guilty of all the offenses and was sentenced to eight
and one-half years in prison. The court stated that post-release control was “[o]ptional, to a
maximum period of three years.”
{¶ 3} In 2012, the State filed a Motion to Correct Post Release Control. Ellis was
in prison and appeared at the postrelease control hearing by video, represented by counsel.
Following the hearing, the court imposed mandatory three-year terms of postrelease control
on one count of intimidation and one count of retaliation.1 The court did not impose a
term of postrelease control on the other counts of which Ellis was convicted, noting that his
sentences on the other counts had been served.2
1
Although the trial court set forth multiple terms of postrelease control, only one may be served. See, e.g., State v. Jones,
2d Dist. Greene No. 2012 CA 8, 2012-Ohio-4446, ¶ 9, citing State v. Simpson, 8th Dist. Cuyahoga No. 88301, 2007-Ohio-4301, ¶
109.
2
We note that whether a trial court has jurisdiction to resentence a defendant for the
purpose of imposing mandatory postrelease control regarding a particular
conviction, when the defendant has served the stated prison term regarding that
conviction, but has yet to serve the entirety of his aggregate prison sentence,
when all of the convictions which led to the aggregate sentence resulted from a
single indictment, is a question currently under consideration by the supreme
court. State v. Holdcroft, S.Ct. No. 2012-1441, 2012-Ohio-4650, 975 N.E.2d
1028 (Table). Under our prior holdings, such resentencing would have been
permissible. See State v. Reid, 2d Dist. Montgomery No. 24841,
2012-Ohio-2666, ¶ 13.
3
{¶ 4} Ellis appeals from the trial court’s resentencing on postrelease control,
raising two assignments of error, which we will address together.
{¶ 5} The assignments of error state:
THE TRIAL COURT’S ORIGINAL SENTENCE CANNOT BE
CONSIDERED VOIDABLE OR VOID, BECAUSE THE TRIAL COURT
DID NOT PROTECT THE APPELLANT’S RIGHTS UNDER CRIM.R. 11
AND 22, VIOLATING THE APPELLANT’S RIGHT TO DUE PROCESS
OF LAW.
THE COURT OF APPEALS SHOULD MODIFY THE SENTENCE
IMPOSED AT THE RESENTENCING HEARING, PURSUANT TO R.C.
2953.08(G)(2).
{¶ 6} Ellis asserts that his original plea agreement included an agreement with the
State that postrelease control would be “optional,” not mandatory; thus, he claims that his
resentencing to a mandatory term of postrelease control violated his plea agreement. He
acknowledges that he cannot substantiate the alleged agreement because the “change of plea
hearing” (the hearing at which he entered his plea) was not recorded, but he asserts that the
trial court’s failure to record the plea hearing violated his due process rights. Ellis claims
that he is unable to avail himself of the alternate procedure for creating a statement of the
evidence or proceedings, set forth in App.R. 9(C), “due to the passage of time, and the
fading of memories.” Based on his contention that his “new sentence” of postrelease
control is “contrary to law,” Ellis urges us to modify his sentence without remanding the
matter to the trial court.
[Cite as State v. Ellis, 2013-Ohio-4399.]
{¶ 7} Ellis did not raise the alleged plea agreement for non-mandatory postrelease
control in the trial court’s resentencing proceedings. Instead, he told the court he believed
and was told by his original attorney that he “would not be getting any post-release control”
because he was “doing 100 percent of [his] time.”
{¶ 8} There are several problems with Ellis’s argument.
{¶ 9} First, as the appellant, Ellis bore the burden of showing error by reference
to the record. State v. Puckett, 143 Ohio App.3d 132, 135, 757 N.E.2d 802 (4th Dist.2001);
State v. Burkholder, 2d Dist. Darke No. 1750, 2009-Ohio-5526, ¶ 5; App.R. 9(B). App.R. 9
provides the mechanisms for providing such a record, including the preparation of a
statement of the evidence or proceedings when no recording was made. App.R. 9(C).
Although we recognize the challenges inherent in preparing a statement of the record many
years after the fact, Ellis’s assertion that he could not prepare such a statement due to “the
passage of time” and “fading of memories” does not compel us to presume a due process
violation where the recording of the proceedings is unavailable. The record before us does
not substantiate his claim that his plea agreement provided for a non-mandatory term of
postrelease control.
{¶ 10} Second, during the original sentencing hearing, the trial court expressed
some confusion about whether postrelease control was “optional” or mandatory in Ellis’s
case. Neither party mentioned any alleged agreement in response to the court’s comments.
If, in fact, one of the terms of the plea agreement had been that postrelease control were
optional (even then, at the option of the parole board), one would expect the parties to have
reminded the court of this agreement as the court attempted to determine whether to impose
a mandatory or discretionary term.
[Cite as State v. Ellis, 2013-Ohio-4399.]
{¶ 11} Third, Ellis’s statement at the 2012 postrelease control hearing that he
believed he would not get any postrelease control is inconsistent with his assertion on appeal
that he bargained for non-mandatory postrelease control. Likewise, the statement on his
plea form that “[b]oth sides are free to argue their recommendation for sentencing at the
final disposition” undercuts Ellis’s claim in this appeal that there had been an agreement as
to sentencing.
{¶ 12} Because the record before us does not substantiate Ellis’s claim that he was
promised a non-mandatory term of postrelease control, the assignments of error are
overruled.
{¶ 13} The judgment of the trial court will be affirmed.
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HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Nathaniel R. Luken
Andrew D. Lucia
Hon. Stephen A. Wolaver