State v. Cottrill

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[Cite as State v. Cottrill, 2011-Ohio-4599.] COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff - Appellee -vsJAMES L. COTTRILL Defendant - Appellant : : : : : : : : : JUDGES: Hon. Sheila G. Farmer, P.J. Hon. John W. Wise, J. Hon. Julie A. Edwards, J. Case No. 10-CA-128 O P I N IO N CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 03CR521 JUDGMENT: Affirmed DATE OF JUDGMENT: September 12, 2011 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant TRACY F. VAN WINKLE 20 South Second Street 4th Floor Newark, OH 43055 ERIC W. BREHM 604 East Rich Street Suite 2100 Columbus, OH 43215 Licking County, Case No. 10-CA-128 2 Farmer, P.J. {¶1} On April 20, 2004, appellant, James Cottrill, pled guilty to one count of aggravated robbery in violation of R.C. 2911.01 and one count of kidnapping in violation of R.C. 2905.01. Both counts carried firearm specifications. By judgment entry filed same date, the trial court sentenced appellant to an aggregate term of eight years in prison. The sentence was ordered to be served consecutively to a sentence appellant received in Pickaway County, Ohio. {¶2} On August 27, 2010, appellant filed a motion for de novo sentencing as his original sentence did not include a term of postrelease control. A hearing was held on October 18, 2010. Appellant requested a continuance in order to call witnesses. The trial court denied the request. By nunc pro tunc judgment entry filed October 19, 2010, the trial court resentenced appellant to the eight year aggregate term and imposed five years of postrelease control. {¶3} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I {¶4} "THE TRIAL COURT DID ERR BY IMPOSING MULTIPLE PRISON SENTENCES, WHEN THE OFFENSES WERE ALLIED OFFENSES OF SIMILAR IMPORT. II {¶5} "THE TRIAL COURT DID ERR BY REFUSING TO GRANT THE DEFENDANT'S REQUEST FOR A CONTINUANCE." Licking County, Case No. 10-CA-128 3 III {¶6} "THE TRIAL COURT DID ERR BY IMPOSING CONSECUTIVE SENTENCES." IV {¶7} "THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL." I, II, III, IV {¶8} Appellant claims the trial court erred in imposing multiple prison terms, denying his request for a continuance, and imposing consecutive sentences. Appellant also claims ineffective assistance of counsel for counsel's failure to object to the multiple prison terms. We disagree. {¶9} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Supreme Court of Ohio held the following at paragraph one of the syllabus: {¶10} "For criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose postrelease control, trial courts shall conduct a de novo sentencing hearing in accordance with decisions of the Supreme Court of Ohio." {¶11} In this case, appellant was sentenced prior to July 11, 2006 and was not properly informed of postrelease control; therefore, pursuant to Singleton, he was entitled to a de novo hearing. However, in State v. Fischer, 128 Ohio St.3d 92, 2010Ohio-6238, syllabus, the Supreme Court of Ohio limited the nature of the de novo hearing: Licking County, Case No. 10-CA-128 4 {¶12} "1. A sentence that does not include the statutorily mandated term of postrelease control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack. {¶13} "2. The new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control. (State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus, modified.) {¶14} "3. Although the doctrine of res judicata does not preclude review of a void sentence, 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. {¶15} "4. The scope of an appeal from a resentencing hearing in which a mandatory term of postrelease control is imposed is limited to issues arising at the resentencing hearing." {¶16} As stated by the Fischer court in paragraph two of the syllabus, the new sentencing hearing "is limited to proper imposition of postrelease control." Upon review, we find the trial court sub judice properly notified appellant of the mandatory five year postrelease control requirement under R.C. 2967.28(B). T. at 10; Nunc Pro Tunc Judgment Entry filed October 19, 2010. {¶17} Pursuant to Fischer, the issues of multiple prison terms/allied offenses of similar import and consecutive sentences were not reviewable during this hearing. See, State v. Griffis, Muskingum App. No. CT2010-57, 2011-Ohio-2955; State v. Pugh, Stark App. No. 2010CA00173, 2011-Ohio-812. The ineffective assistance of counsel claim related to the allied offenses argument is moot. Licking County, Case No. 10-CA-128 5 {¶18} As for the continuance request, appellant sought to present witnesses on his behalf. Pursuant to Fischer, the hearing was not about gathering additional testimony and/or evidence, but the proper imposition of postrelease control. The trial court did not abuse its discretion in denying appellant's request for a continuance of the hearing. State v. Unger (1981), 423 Ohio St.2d 65. {¶19} Assignments of Error I, II, III, and IV are denied. {¶20} The judgment of the Court of Common Pleas of Licking County, Ohio is hereby affirmed. By Farmer, P.J. Wise, J. and Edwards, J. concur. _s/ Sheila G. Farmer_________________ _s/ John W. Wise__________________ _s/ Julie A. Edwards__________________ JUDGES SGF/sg 822 [Cite as State v. Cottrill, 2011-Ohio-4599.] IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellant -vsJAMES L. COTTRILL Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY CASE NO. 10-CA-128 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to appellant. _s/ Sheila G. Farmer_________________ _s/ John W. Wise__________________ _s/ Julie A. Edwards__________________ JUDGES

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