State v. Evans

[Cite as State v. Evans, 2017-Ohio-2767.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160419
TRIAL NO. B-0510014
Plaintiff-Appellee, :
vs. : O P I N I O N.
LEONARD EVANS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 12, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond L. Katz, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Defendant-appellant Leonard Evans appeals the Hamilton County
Common Pleas Court’s judgment imposing postrelease control and correcting a
clerical error.
{¶2} Evans was convicted in 2006 of murder and an accompanying firearm
specification, having a weapon while under a disability, and carrying a concealed
weapon. The trial court imposed an aggregate term of 24 ½ years to life in prison.
In addition, the court notified Evans at sentencing that upon his release from prison
he would be subject to a mandatory five-year period of postrelease control, and
incorporated that notification into the judgment of conviction.
{¶3} Evans unsuccessfully challenged his convictions on direct appeal.
State v. Evans, 1st Dist. Hamilton No. C-060392 (Jan. 23, 2008). In 2014, Evans
appealed the trial court’s judgments overruling three postconviction motions. We
modified the judgments appealed from to reflect dismissals of the motions and
affirmed the judgments as modified. State v. Evans, 1st Dist. Hamilton No. C-
140503, 2015-Ohio-3208, ¶ 13. But because postrelease control could not be
imposed for a special felony like murder, and because only a discretionary three-year
period of postrelease control could be imposed for the weapons offenses, we held
that Evans’s sentences were void to the extent that postrelease control had not been
properly imposed. Id. at ¶ 10-11. We remanded the matter for correction of the
offending portions of the sentences. The sentencing entry also mistakenly stated that
the sentence was 24 ½ years rather than 24 ½ years to life. We remanded the
matter for correction of this clerical error as well. Id. at ¶ 14.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} At the March 2016 hearing, the trial court notified Evans that upon his
release he may be subject to a three-year period of postrelease control for the
weapons offenses and incorporated that notification into the judgment of conviction.
The court also corrected the clerical error in its entry to reflect that the sum of
Evans’s prison sentences was 24 ½ years to life. Evans now appeals.
{¶5} In his first assignment of error, Evans argues that the trial court erred
by imposing a discretionary three-year period of postrelease control for the weapon-
under-disability and concealed-weapon offenses because he had already served the
stated prison terms for those offenses. He claims that the court’s sentencing entry
directed that those sentences were to be served prior to the sentence imposed for the
murder offense. He is mistaken. The sentencing entry does not state that the prison
terms for the weapons charges should be served first. Rather, it states, as required
by law, that the mandatory term for the three-year gun specification be served prior
to the 15 years to life for the murder.
{¶6} A trial court cannot add a term of postrelease control as a sanction for
an offense after the defendant has already served the prison term for that offense,
even if the defendant remains in prison for other offenses. State v. Holdcroft, 137
Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, paragraph three of the syllabus. In
Holdcroft, the trial court ordered that the defendant’s arson sentence be served
consecutively to his sentence for aggravated arson. Id. at ¶ 3. The Supreme Court of
Ohio held that once the defendant completed his prison term for aggravated arson,
the trial court lost the authority to impose a postrelease-control sanction for that
offense, even though the defendant was still serving a prison term for arson. Id. at
¶ 4.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Unlike the sentencing entry in Holdcroft, the entry in this case did not
set forth the sequence in which each of the consecutive sentences was to be served.
Contrary to Evans’s representation, the court did not order the sentences for the
weapon-under-disability and concealed-weapon offenses to be served prior to the
sentence for the murder offense, for a total of 24 ½ years to life.
{¶8} When Evans was sentenced in 2006, the trial court imposed an
indefinite term of 15 years to life for the murder offense. See former R.C. 2929.02(B)
(now R.C. 2929.02(B)(1)). The court imposed a three-year prison term for the
firearm specification, to be served consecutively to and prior to the prison term
imposed for the underlying murder offense. See former R.C. 2929.14(D)(1)(a)(ii)
and (E)(1)(a) (now R.C. 2929.14(B)(1)(a)(ii) and (C)(1)(a)). In addition, the court
imposed a five-year term for the weapon-under-disability offense and an 18-month
term for the concealed-weapon offense. See former R.C. 2929.14(A)(3) and (4) (now
R.C. 2929.14(A)(3)(b) and (4)). The court ordered that the sentences for the murder,
weapon-under-disability, and concealed-weapon offenses be served consecutively to
each other.
{¶9} Where, as here, a sentencing entry fails to explicitly set forth the
sequence in which consecutive sentences are to be served, courts have found Ohio
Adm.Code 5120-2-03.1(M) instructive in determining the sequence of sentences. See
State v. Ford, 2d Dist. Montgomery No. 25796, 2014-Ohio-1859, ¶ 19; State v. Peace,
3d Dist. Hancock No. 5-13-32, 2014-Ohio-2126. Ohio Adm.Code 5120-2-03.1(M)
sets forth the sequence that sentences are to be served when an offender is serving
stated prison terms consecutively to life terms or to certain firearm specifications:
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OHIO FIRST DISTRICT COURT OF APPEALS
When an offender is serving any stated prison terms consecutively to
any life terms of imprisonment and/or to any one, three, five and/or
six-year mandatory prison terms imposed pursuant to division
(B)(1)(a)(i) of section 2929.14 [of] the Revised Code, for using a
firearm in the commission of an offense, and/or division (B)(1)(a)(ii)
of section 2929.14 of the Revised Code, for committing a felony by
discharging a firearm from a motor vehicle, the aggregate of all such
one, three, five and/or six-year mandatory prison terms shall be served
first, then the aggregate of all other mandatory prison terms shall be
served, and then the aggregate of the non-mandatory portion of the
stated prison terms shall be served, and then the aggregate of the non-
mandatory portion of the life terms of imprisonment shall be served.
{¶10} R.C. 2929.01(FF) defines “stated prison term” as “the prison term,
mandatory prison term, or combination of all prison terms imposed by the
sentencing court pursuant to section 2929.14, 2929.142, or 2971.03 of the Revised
Code or under section 2919.25 of the Revised Code.” In this case, the “stated prison
term” included the terms imposed pursuant to R.C. 2929.14 for the weapon-under-
disability and concealed-weapon offenses, and for the firearm specification, and did
not include the sentence imposed pursuant to R.C. 2929.02 for murder.
{¶11} A “mandatory prison term” is defined in R.C. 2929.01(X) to include
the term in prison that must be imposed for the offenses set forth in R.C.
2929.13(F)(1) to (8) or (F)(12) to (18) and 2929.14(B). Pursuant to R.C.
2929.13(F)(1), murder is an offense for which the court must impose a prison term
under R.C. 2929.02. Under R.C. 2929.02, a person convicted of murder must be
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OHIO FIRST DISTRICT COURT OF APPEALS
imprisoned for an indefinite term of 15 years to life. And, under R.C.
2929.14(B)(1)(a)(ii), a court must impose a three-year prison term where, as here, a
person is convicted of a firearm specification that charges the offender with
displaying, brandishing, or indicating possession of a firearm, or using a firearm to
facilitate the offense. Therefore, in this case, the prison terms for murder and the
firearm specification were mandatory. See State v. Wolfe, 2d Dist. Montgomery Nos.
26681, 26729 and 26983, 2016-Ohio-4897, ¶ 13. On the other hand, the prison
terms imposed for the weapon-under-disability and concealed-weapon offenses are
nonmandatory terms.
{¶12} Pursuant to Ohio Adm.Code 5120-2-03.1(M), Evans’s consecutive
sentences are to be served in the following sequence:
(1) the mandatory prison term for using a firearm in the commission of an
offense (3 years);
(2) the mandatory prison term for murder (15 years);
(3) the aggregate of the nonmandatory stated terms for the weapon-under-
disability and concealed-weapon offenses (6 ½ years);
(4) the aggregate of the nonmandatory portion of the life term (what is
commonly referred to as the “life tail”).
{¶13} The Ohio Administrative Code makes it clear by using the language
“stated terms” only with respect to nonmandatory terms, that it intends the
mandatory terms (whether part of a stated term or an indefinite term) to be served
prior to the nonmandatory stated terms. This is further bolstered by the
requirement that the aggregate of the nonmandatory portion of a life term be served
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OHIO FIRST DISTRICT COURT OF APPEALS
last. There would be no reason to include this language if the entire murder sentence
of 15 years to life was to be served last.
{¶14} Therefore, after Evans completed the three-year term for the firearm
specification in 2009, he began serving the mandatory 15-year portion of his life
term. Consequently, Evans had not completed either of the terms for the weapon-
under-disability or concealed-weapon offenses at the time of the March 2016
hearing, so the trial court properly imposed postrelease control for those offenses.
And while Ohio Adm.Code 5120-2-03.1(M) does not provide an order within
categories (i.e., whether the five years for the weapon-under-disability or 18 months
for the concealed-weapon offenses is to be served first), we need not address this
issue since Evans has not completed his 15-year mandatory term. We overrule the
first assignment of error.
{¶15} In his second assignment of error, Evans argues that the trial court
erred by failing to ensure that he was effectively represented at the March 2016
hearing. He contends that counsel prevented him from arguing that, under
Holdcroft, the trial court the lacked authority to impose postrelease control for the
sentences he had completed.
{¶16} To prevail on an ineffective-assistance claim, an appellant must
demonstrate that his counsel’s performance was deficient, and that, in the absence of
counsel’s errors, there is a reasonable probability that the result of the trial would
have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373(1989).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Because the trial court correctly imposed postrelease control, counsel’s
performance was not deficient. Moreover, the record reflects that Evans was not
prevented from making his Holdcroft argument. He argued to the court that,
pursuant to Holdcroft, it could not impose postrelease control because he had
completed the prison sentences for the weapon-under-disability and concealed-
weapon offenses. Evans has not demonstrated that his counsel’s representation fell
below an objective standard of reasonableness or that, but for counsel’s
unprofessional errors, the results of the proceeding would have been otherwise.
Therefore, he has failed to meet his burden to show ineffective assistance of counsel.
See Strickland at 687-689; Bradley at 143. We overrule the second assignment of
error.
{¶18} In his third assignment of error, Evans argues that the trial court erred
by resentencing him to the same aggregate term because it failed to consider the
appropriate statutory factors. However, this court determined that Evans’s
sentences were only void to the extent that they were not imposed in conformity with
the statutory mandates concerning postrelease control. Evans, 1st Dist. Hamilton
No. C-140503, 2015-Ohio-3208, at ¶ 14. As a result, the trial court’s authority was
limited to informing Evans about postrelease control for the weapon-under-disability
and concealed-weapon offenses. See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-
6238, 942 N.E.2d 332, paragraph two of the syllabus. Consequently, we overrule the
third assignment of error.
{¶19} In his fourth assignment of error, Evans argues that the trial court
erred “when it did not limit its decision to the proper imposition of postrelease
control.” He claims that the court had no authority to correct the sentencing entry to
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OHIO FIRST DISTRICT COURT OF APPEALS
state that his aggregate sentence was 24 ½ years “to life,” rather than 24 ½ years as
reflected in the 2006 sentencing entry.
{¶20} This argument is without merit. This court determined that the
original judgment’s misstatement of the sum of Evans’s prison sentences constituted
a clerical error subject to correction under Crim.R. 36. Evans at ¶ 12. Accordingly,
we ordered the trial court to correct the error. Id. at ¶ 14. The trial court did just
that. The trial court did not exceed its authority, and we overrule the fourth
assignment of error. We affirm the trial court’s judgment.
Judgment affirmed.
CUNNINGHAM, P.J., concurs.
MILLER, J., concurs separately.
MILLER, J., concurring separately.
{¶21} I concur in the disposition of this appeal. I write separately to
highlight a separation of powers issue that arises between the judicial and executive
branches should a reviewing court look to an administrative code provision to
determine the order of service of consecutive terms of confinement imposed in a
single entry. The issue is avoided here, as the administrative code provision and the
sentencing entry align.
{¶22} As set forth in the opinion of the court, the Department of
Rehabilitation and Correction (“DRC”) has promulgated Ohio Adm.Code 5120-2-
03.1, a regulation regarding how it measures and attributes the time an inmate
serves for the purposes of determining whether that inmate can qualify for earned
credit for productive program participation under Ohio Adm.Code 5120-02-06. The
regulations are stated to amplify R.C. 5120.15, which authorizes DRC to “regulate the
admission and discharge of inmates” committed to it.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} There appears to be no statute authorizing DRC to control the order in
which a court imposes sentences. Nevertheless, the two appellate districts cited by
this court, the Second in State v. Ford and the Third in State v. Peace, have
purported to follow the DRC regulation. See Ford, 2d Dist. Montgomery No. 25796,
2014-Ohio-1859; Peace, 3d Dist. Hancock No. 5-13-32, 2014-Ohio-2126. I say
purportedly because the Peace court reached a different result than we do. It found
that no portion of the mandatory sentence with the life tail began to run until after
the nonmandatory stated terms were served. Peace held that because the defendant
had served sufficient time to complete the nonmandatory terms, postrelease control
could not be imposed upon him. Peace at ¶ 11. This conflicts with our reading of the
regulation that the mandatory portion of the life sentence is counted first.
{¶24} Our reading of the regulation, however, is arguably unnecessary
according to the Eighth and Eleventh Districts, which both reject the regulation in
favor of the order the sentences are stated by the trial court in the sentencing entry.
See State v Kish, 8th Dist. Cuyahoga No. 99895, 2014-Ohio-699, ¶ 12 (“No revised or
administrative code dictates how multiple case sentences are to be served. Rather, it
is the court’s sentencing journal entry [that] dictates how a sentence is to be
served.”); State v. Sealey, 11th Dist. Lake No. 2016-L-034, 2017-Ohio-338 (finding
“the sequence of appellant’s sentence [to be] clear” based on the sentencing entry).
{¶25} Here, Evans was sentenced first on the conviction for murder, with the
firearm specification, then on the concealed-weapon count, and finally on the
weapons-under-disability count. The entry further stated that, “The sentences in
counts #1, #3, and #4 are to be served consecutively to each other.” The plain
meaning of this language is that the sentences are to be served in the stated order,
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OHIO FIRST DISTRICT COURT OF APPEALS
count 1 (murder), followed by count 3 (concealed weapon), and finally count 4
(weapons under disability).
{¶26} For the purposes of this appeal, the order of the sentences imposed by
the trial court aligns with the order set forth in Ohio Adm.Code 5120-02-03.1.
Accordingly, there is no occasion to determine which controls. In either event, the
postrelease-control sanction was timely imposed under R.C. 2929.191(C).
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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