State v. Brenson

[Cite as State v. Brenson, 2023-Ohio-1259.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 22 CAA 07 0054
JAMES A. BRENSON, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 08 CR I 04 0207 A
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 18, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA SCHIFFEL TODD WORKMAN
PROECUTING ATTORNEY WORKMAN LAW FIRM
ELIZABETH A. MATUNE 35 North Sandusky Street
ASSISTANT PROSECUTOR Delaware, Ohio 43015
149 North Union Street
Delaware, Ohio 43015
Delaware County, Case No. 22 CAA 07 0054 2
Wise, J.
{¶1} Defendant-appellant, James A. Brenson, Jr., appeals his re-sentencing
following remand, which took place on June 14, 2022, in the Delaware County Court of
Common Pleas.
{¶2} Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} For purposes of this appeal, the relevant facts and procedural history are as
follows:
{¶4} Appellant James A. Brenson, Jr. was originally indicted for the June 11, 2000,
murder of Norman “Duck” Herrell in the Delaware County Common Pleas Case Number
00-CR-I-07-0195 on July 28, 2000. That case was dismissed without prejudice on
January 16, 2001, at the request of the prosecution for further investigation.
{¶5} Seven years later, on April 16, 2008, a second indictment was issued, wherein
both Brenson and co-defendant William Allen were indicted on two counts of Aggravated
Murder, unclassified felonies, in violation of R.C. §2903.01(A) and R.C. §2903.01(B),
respectively, one count of Murder, an unclassified felony, in violation of R.C. §2903.02(B),
one count of Kidnapping, a felony of the first degree, in violation of R.C. §2905.01(A)(2),
one count of Kidnapping, a felony of the first degree, in violation of R.C. §2905.01(A)(3),
one count of Aggravated Robbery, a felony of the first degree, in violation of R.C.
§2911.01(A)(3), and one count of Aggravated Robbery, a felony of the first degree, in
violation of R.C. §2911.01(A)(1).
{¶6} On July 8, 2008, the matter proceeded to a trial by jury. Following the
presentation of evidence, the jury found Appellant guilty on all counts.
Delaware County, Case No. 22 CAA 07 0054 3
{¶7} On July 31, 2008, the trial court sentenced Appellant as follows: Count One,
Aggravated Murder, in violation of R.C. §2903.01(A): life with the possibility of parole after
twenty years; Count Two, Aggravated Murder, in violation of R.C. §2903.01(B): life with
the possibility of parole after twenty years; Count Three, Murder, in violation of R.C.
§2903.02(B): an indefinite term of fifteen years to life; Count Four, Kidnapping, in violation
of R.C. §2905.01(A)(2): ten years; Count Five, Kidnapping, in violation of R.C.
§2905.01(A)(3): ten years; Count Six, Aggravated Robbery, in violation of R.C.
§2911.01(A)(3): ten years; Count Seven, Aggravated Robbery, in violation of R.C.
§2911.01(A)(1): ten years.
{¶8} The trial court ordered that all of the sentences be served concurrently to one
another except for count seven, which was ordered to be served consecutively to all of
the other charges, for an aggregate sentence of thirty (30) years to life in prison.
{¶9} Appellant Brenson filed a direct appeal to this Court, raising fourteen (14)
assignments of error. By Opinion and Entry filed September 28, 2010, this Court affirmed
Appellant’s convictions but remanded the matter back to the trial court having found
“appellant’s conviction for aggravated robbery, R.C. 2911.01(A) (1), and for kidnapping
R.C. 2905.01(A)(2) should have been merged for sentencing purposes.” See State v.
Brenson, 5th Dist. Delaware No. 09-CA-18, 2010-Ohio-4645.
{¶10} On June 14, 2022, the trial court held a re-sentencing hearing wherein the
trial court merged the Aggravated Murder charges and the Murder charges in Counts
One, Two, and Three, and the State elected to proceed on Count One, Aggravated
Murder, in violation of R.C. §2903.01(A); the two charges of Kidnapping and the two
charges of Aggravated Robbery in Counts Four, Five, Six, and Seven were all merged,
Delaware County, Case No. 22 CAA 07 0054 4
and the State elected to proceed on Count Seven, Aggravated Robbery, in violation of
R.C. §2911.01(A)(1).
{¶11} The trial court then sentenced Appellant as follows: Count One, Aggravated
Murder, in violation of R.C. §2903.01(A): life with the possibility of parole after twenty (20)
years; Count Seven, Aggravated Robbery, in violation of R.C. §2911.01(A)(1): ten years,
to be served consecutively to the sentence imposed on Count One, for an aggregate
sentence of thirty (30) years to life in prison.
{¶12} Appellant now appeals, raising the follow error for review:
ASSIGNMENT OF ERROR
{¶13} “I. THE TRIAL COURT ERRED WHEN IT CAUSED A 12-YEAR DELAY
BETWEEN REMAND AND RE-SENTENCING; A VIOLATION OF HIS SIXTH
AMENDMENT RIGHT TO A SPEEDY TRIAL AND A VIOLATION OF DUE PROCESS.”
I.
{¶14} In his sole assignment of error, Appellant argues that his right to a speedy
trial was violated by the delay in re-sentencing. We disagree.
{¶15} As noted by the Supreme Court of Ohio:
The Sixth and Fourteenth Amendments to the United States
Constitution guarantee a criminal defendant the right to a speedy trial by the
state. Klopfer v. North Carolina (1967), 386 U.S. 213, 222-223, 87 S.Ct.
988, 18 L.Ed.2d 1. Section 10, Article I of the Ohio Constitution also
provides an accused “a speedy public trial.” State v. Ladd (1978), 56 Ohio
St.2d 197, 200, * * * 383 N.E.2d 579. Provisions setting forth time limits for
bringing an accused to trial are found in R.C. 2945.71 and 2945.73.
Delaware County, Case No. 22 CAA 07 0054 5
Speedy trial provisions are mandatory, and pursuant to R.C.
2945.73(B), a person not brought to trial within the relevant time constraints
“shall be discharged,” and further criminal proceedings based on the same
conduct are barred. R.C. 2945.72(D). A person charged with a felony shall
be brought to trial within 270 days of the date of arrest. R.C. 2945.71(C)(2).
If that person is held in jail in lieu of bail, then each day of custody is to be
counted as three days. R.C. 2945.71(E). * * *
* * * Upon review of a speedy-trial issue, a court is required to count
the days of delay chargeable to either side and determine whether the case
was tried within applicable time limits. The rationale supporting speedy-trial
legislation is to prevent inexcusable delays caused by indolence within the
judicial system. * * *
State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 6-8.
{¶16} While the Ohio Supreme Court has not addressed the issue as whether the
Sixth Amendment right to Due Process is implicated by a delay in re-resentencing
following a remand, bot the Second and Fourth District Courts of Appeal have addressed
the issue.
{¶17} In State v. Simons, 2d Dist. Champaign No. 2003-CA-29, 2004-Ohio-6061,
¶ 41, this Second District stated the following:
* * * Simons claims the trial court violated his right to a speedy re-
sentencing under the Sixth Amendment to the U.S. Constitution. In support,
he relies on Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33
L.Ed.2d 101. There the U.S. Supreme Court identified four factors to
Delaware County, Case No. 22 CAA 07 0054 6
consider to determine whether a defendant's constitutional right to a speedy
trial has been violated: (1) the length of the delay; (2) the reason for the
delay; (3) the defendant's assertion of his right; and (4) whether the delay
prejudiced the defendant. Although Barker involved a speedy trial issue,
most courts have presumed the existence of an analogous constitutional
right to a speedy re-sentencing and have applied the foregoing factors when
reviewing alleged violations of that right. See, e.g. State v. Corrigan,
Cuyahoga App. No. 83088, 2004-Ohio-4346; United States v. Thomas (6th
Cir. 1999), 167 F.3d 299, 303-305.
{¶18} In State v. Creech, 4th Dist. Scioto No. 16CA3730, 2017-Ohio-6951, the 4th
District found no prejudice in a five-year delay in resentencing, stating:
Appellate courts have generally held that when the defendant has
been incarcerated during the length of the delay, and would not have been
eligible for release during that time, no prejudice exists. In State v. Huber,
8th Dist. Cuyahoga No. 85082, 2005-Ohio-2625, the court held that
because Huber was incarcerated for a sentence longer than the delay
between remand and resentencing, no prejudice existed when a nearly one-
year delay occurred between remand and resentencing. Huber at ¶ 10.
Further, in State v. Bolton, 8th Dist. Cuyahoga No. 103628, 2016-Ohio-
5706, the court did not find prejudice when a 27-month delay between
remand and resentencing occurred. Moreover, in State v. Nia, 2014-Ohio-
2527, 15 N.E.3d 892 (8th Dist.), the court held that when [there was] no
allegation or finding that the government purposely delayed the defendant's
Delaware County, Case No. 22 CAA 07 0054 7
sentencing or acted in bad faith, and the record did not support a finding
that the defendant delayed the hearing in any[ ]way, the court viewed the
delay as a “serious administrative lapse.” However, the court concluded that
the 68-month delay, despite being lengthy, did not prejudice the defendant
as he could not have been released during the delay. Nia at ¶ 33-34.
Finally, in a case with an even longer lapse between remand and
resentencing than the case sub judice, in State v. Holly, 8th Dist. Cuyahoga
No. 102764, 2015-Ohio-4771, the Eighth District did not find prejudice when
a 15-year delay occurred in resentencing, stating: There is no doubt that the
15-year delay in resentencing was a serious failure by the criminal justice
system. However, Holly had remained lawfully incarcerated during the
delay, due to the length of his sentence * * *. Therefore, although the delay
in resentencing here was extraordinary, we do not find that Holly was
actually prejudiced. Holly at ¶ 9.
Creech at ¶ 17-18.
{¶19} Similarly, in State v. Buckney, 2nd Dist. Clark No. 2019-CA-75, 2020-Ohio-
4927, ¶¶ 7-10 the Second District found that a 13-year delay in re-sentencing during
which time defendant would not have been eligible for release did not result in prejudice
to the defendant because “[d]uring the delay in the case sub judice, appellant remained
lawfully incarcerated, and still has several years remaining on his sentence.”
{¶20} See also State v. Martinez, 3d Dist. Seneca Nos. 13-11-32 and 13-11-21,
2012-Ohio-3750, ¶ 25 (finding a five-year delay between remand and resentencing to be
a “serious administrative lapse” but not prejudicial, since defendant could not have been
Delaware County, Case No. 22 CAA 07 0054 8
released during the five-year delay); State v. Jones, 2d Dist. Clark No. 2018-CA-17, 2019-
Ohio-238, ¶ 27 (finding that a four-year delay between the court's remand and defendant's
resentencing, although a serious administrative lapse, did not prejudice the defendant,
since he could not have been released during the delay; therefore ineffective assistance
of counsel appointed for resentencing was not demonstrated).
{¶21} In the instant case, the delay in resentencing was extremely lengthy, 12
years, and the record provides no explanation for the delay. At the commencement of the
re-sentencing hearing, the trial court stated “…came to the Court’s attention that there
had been a decision by the Court of Appeals that somehow did not get either received by
our Court or docketed by the Clerk some time ago, and we need to address the issues
that were addressed there.” (Re-Sent. T. at 3).
{¶22} Upon review, we find that in this case, as set forth above, in 2008, the trial
court originally sentenced Appellant to a term of life with the possibility of parole after
twenty (20) years, consecutive to a separate ten (10) year prison term, or a minimum
thirty (30) year term of incarceration before he could seek release. At re-sentencing in
2022, the trial court imposed a sentence of life with the possibility of parole after twenty
(20) years, consecutive to a separate ten (10) year prison term, or a minimum thirty (30)
year term of incarceration.
{¶23} During the 12-year lapse in re-sentencing, Appellant was not eligible for
parole and was lawfully incarcerated. While we similarly conclude that the delay in this
case was a “serious administrative lapse” and inexcusable, we further conclude that the
Appellant herein was not prejudiced thereby, since he remained lawfully incarcerated
during the delay due to the length of his sentence.
Delaware County, Case No. 22 CAA 07 0054 9
{¶24} Further, it has also been held that Crim.R. 32(A)'s requirement that a
sentence be imposed without unnecessary delay does not apply to resentencing
hearings. State v. Morgan, 2d Dist. Montgomery No. 27774, 2018-Ohio-3198, ¶ 36.
{¶25} Accordingly, since Appellant remained incarcerated during the 12-year delay
and would not have been eligible for release during that time, no prejudice exists.
{¶26} Appellant’s sole assignment of error is overruled.
{¶27} For the foregoing reasons, the judgment of the Court of Common Pleas of
Delaware County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
JWW/kw 0414