State v. Hines

[Cite as State v. Hines, 193 Ohio App.3d 660, 2011-Ohio-3125.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
THE STATE OF OHIO,
APPELLEE, CASE NO. 1-10-92
v.
HINES, OPINION
APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2004 0016
Judgment Affirmed
Date of Decision: June 27, 2011
APPEARANCES:
Christina L. Steffan, for appellee.
Michael J. Short, for appellant.
SHAW, Judge.
Case No. 1-10-92
{¶1} Appellant, Dennis Hines, appeals the December 21, 2010 judgment of
the Allen County Court of Common Pleas correcting his judgment entry of
sentence and conviction to properly impose postrelease control and overruling his
motion for sentence to lesser degree of offense.
{¶2} On April 29, 2004, a jury convicted Hines on one count of trafficking
in crack cocaine, a felony of the third degree; one count of trafficking in crack
cocaine, a felony of the second degree; one count of trafficking in powder cocaine,
a felony of the fourth degree; one count of possession of power cocaine, a felony
of the fifth degree; and one count of having weapons under disability, a felony of
the fifth degree.
{¶3} On June 1, 2004, the trial court sentenced Hines to serve a total
sentence of 15 years and five months in prison. On June 30, 2004, Hines filed his
notice of appeal with this court. In that appeal, Hines argued that the jury never
returned a specific verdict finding of the amounts of the drugs related to his
trafficking charges because the jury verdict forms failed to specify the amounts or
the degree of felony of the offenses. As a result, Hines argued, the trial court
could, as a matter of law, convict and sentence him only for the lesser degree of
the offense pursuant to R.C. 2945.75(A)(2). Hines also assigned as error the trial
court’s imposition of consecutive maximum sentences.
-2-
Case No. 1-10-92
{¶4} On December 27, 2005, this court issued its decision in Hines’s
appeal, overruling his assignments of error. Specifically, this court held that the
trial court had substantially complied with R.C. 2945.75(A)(2), and we found no
reversible error.
{¶5} On May 24, 2006, the Supreme Court of Ohio reversed the decision of
this court regarding Hines’s sentence and ordered the trial court to resentence him
pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
{¶6} On September 25, 2006, the trial court held a resentencing hearing and
on September 26, 2006, the trial court issued its judgment entry of resentencing in
compliance with the directives of Foster.
{¶7} On September 29, 2006, Hines filed his notice of appeal from the
judgment entry of resentencing with this court. Hines presented only one
assignment of error, specifically taking issue with his resentencing pursuant to
Foster.
{¶8} On February 7, 2007, while Hines’s second appeal was still pending,
the Supreme Court issued State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256,
860 N.E.2d 735, which held that pursuant to R.C. 2945.75(A)(2) a verdict form
signed by a jury must include either the degree of the offense of which the
defendant is convicted or a statement that an aggravating element has been found
to justify convicting a defendant of a greater degree of a criminal offense. Id. at ¶
-3-
Case No. 1-10-92
14. Notably, Hines failed to supplement his pending appeal with this new decision
or to otherwise raise the issue regarding jury-verdict forms in his second appeal.
{¶9} On June 25, 2007, this court issued its decision in Hines’s second
appeal, overruling his assignment of error concerning his resentencing pursuant to
Foster.
{¶10} Over three years later, on November 17, 2010, Hines filed a motion
to vacate a void sentence and resentence because he was not properly informed of
postrelease control at sentencing. The trial court scheduled a hearing on the matter
for December 20, 2010.
{¶11} On December 10, 2010, Hines filed a motion for sentence to a lesser
degree of the offense, now arguing that the jury-verdict forms in his case were
deficient pursuant to State v. Pelfrey, 112 Ohio St.3d 422, because they did not
include the degree of offense or the aggravating element of the offenses for which
he was found guilty. Hines maintained that based on the deficiency in the jury-
verdict forms, the trial court was without authority to convict and sentence him to
anything higher than the lowest degree of the offense.
{¶12} The matter of the improper imposition of postrelease control was
heard by the trial court on December 20 and 21, 2010. The trial court noted that it
had properly notified Hines on the record at the September 25, 2006 resentencing
hearing that he is subject to a mandatory three years of postrelease control, but that
-4-
Case No. 1-10-92
the September 26, 2006 judgment entry of resentencing contained the words “up
to” instead of specifying that Hines’s three years of postrelease control supervision
were mandatory. The trial court also addressed Hines’s motion for sentence to a
lesser degree of the offense, noting that this court had had an opportunity to
consider the issue of the jury-verdict forms in Hines’s first appeal and that Hines
had failed to raise the issue of the jury-verdict forms on his second appeal after
Pelfrey had been released. Because this court had had two opportunities to review
the issue, the trial court concluded that Hines’s motion for sentence to a lesser
degree of the offense was barred by res judicata.
{¶13} The trial court further noted that because Hines was resentenced after
the effective date specified in R.C. 2929.191, a de novo hearing was not required.
Therefore, the trial court determined that the only issue properly before it was
whether the September 26, 2006 judgment entry of resentencing should be
corrected to reflect the proper term of postrelease control. Accordingly, on
December 21, 2010, the trial court resentenced Hines and issued a nunc pro tunc
entry, as authorized by R.C. 2929.191, to correct the September 26, 2006
judgment entry of resentencing.
{¶14} Hines now appeals this judgment, asserting the following assignment
of error.
ASSIGNMENT OF ERROR
-5-
Case No. 1-10-92
The trial court erred in ruling the defendant’s motion
pursuant to State v. Pelfrey was barred by res judicata, and
not resentencing the defendant on the least degree of the
offense to which he was convicted.
{¶15} In his sole assignment of error, Hines argues that the trial court erred
when it determined that his motion for sentence to a lesser degree was barred by
res judicata. In support of his argument, Hines asserts that the September 26, 2006
judgment entry of resentencing is “void, not only for the postrelease control issue,
but also because the verdict forms did not comply with the terms of [R.C.
2945.75].” Hines further contends that void sentences are not precluded by res
judicata and can be reviewed at any time.
{¶16} Initially, we note that in our review of Pelfrey, we find no indication
that a failure to strictly comply with R.C. 2945.75 renders a judgment void.
Moreover, Hines cites no case law that so holds, nor have we found any such
authority. Moreover, the Supreme Court of Ohio made it clear that its decision in
Pelfrey did not make “new” law, but simply applied R.C. 2945.75 as the Ohio
General Assembly had expressly written it. Accordingly, any failure of the jury
verdicts to comply with the statute, or any reduction of sentence pursuant to
Pelfrey, should have been raised on Hines’s direct appeal from his September 26,
2006 resentencing. Hines had over four months between the release of Pelfrey and
the issuance of this court’s decision on his second appeal to raise this issue.
-6-
Case No. 1-10-92
However, Hines chose not to do so. Consequently, the issue is now barred by res
judicata. See, e.g,. State v. Martin, 9th Dist. No. 25534, 2011-Ohio-1781, at ¶ 7;
State v. Sowards, 4th Dist. No. 09CA8, 2011-Ohio-1660, at ¶ 10; State v. Baldwin,
5th Dist. No. 2010-CA-00223, 2011-Ohio-495 (all reaching similar conclusions on
the matter).
{¶17} Furthermore, the Supreme Court of Ohio in State v. Fischer clarified
the meaning of “void” as it relates to the improper imposition of postrelease
control by stating that “when a judge fails to impose statutorily mandated
postrelease control as part of a defendant’s sentence, that part of the sentence is
void and must be set aside. Neither the Constitution nor common sense
commands anything more.” (Emphasis omitted.) State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, 942 N.E.2d 332, 2010-Ohio-6238, at ¶ 26. Accordingly, “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.” Id. at
¶40. Thus, the only part of Hines’s sentence considered to be void is the error in
the judgment entry of resentencing concerning postrelease control.
{¶18} Fischer further holds that “the new sentencing hearing to which an
offender is entitled under Bezak is limited to proper imposition of postrelease
control.” Fischer at ¶ 29. Therefore, we concur with the reasoning of the trial
court that the only matter properly before it was the correction of Hines’s
-7-
Case No. 1-10-92
judgment entry of resentencing pursuant to R.C. 2929.191 and that all other
matters relating to his conviction and sentence were barred by res judicata.
{¶19} Based on the foregoing, Hines’s assignment of error is overruled, and
the judgment of the Allen County Court of Common Pleas is affirmed.
Judgment affirmed.
PRESTON and WILLAMOWSKI, JJ., concur.
-8-