State v. Black

2011 Ohio 3127

• Court: Ohio Court of Appeals
• Decided: June 27, 2011
• Docket: 6-10-15
• Status: Published

Opinion

[Cite as State v. Black, 2011-Ohio-3127.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 6-10-15

v.

SHAWN MARK STEVEN BLACK, OPINION

DEFENDANT-APPELLANT.

Appeal from Hardin County Common Pleas Court Trial Court No. 20052025 CRI

Judgment Affirmed

Date of Decision: June 27, 2011

APPEARANCES:

Nicole M. Winget for Appellant

Bradford W. Bailey for Appellee Case No. 6-10-15

WILLAMOWSKI, J.

{¶1} Defendant-Appellant, Shawn Mark Steven Black (“Black” or

“Defendant”), appeals the judgment of the Hardin County Court of Common Pleas

after he was granted a new sentencing hearing to correct an error in the imposition

of postrelease control (“PRC”) for his 2006 convictions for rape and gross sexual

imposition. In this appeal, Black contends that the trial court erred when it failed

to provide the reasoning behind its decision to impose consecutive sentences. For

the reasons set forth below, the judgment is affirmed.

{¶2} In May of 2006, a jury found Black guilty of one count of rape of a

child under age 10, in violation of R.C. 2907.02(A)(1)(b), a felony of the first

degree, and six counts of gross sexual imposition in violation of R.C.

2907.05(A)(4), felonies of the third degree. On August 1, 2006, the trial court

classified Black as a sexual predator and sentenced him to a mandatory life prison

term for his rape conviction and to a two-year prison term for each of his gross-

sexual-imposition convictions, all to be served consecutively for a total sentence

of life plus twelve years. On June 25, 2007, this Court affirmed Black’s

conviction on appeal. See State v. Black, 172 Ohio App.3d 716, 2007-Ohio-3133,

876 N.E.2d 1255.

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{¶3} In August of 2010, the State requested a resentencing hearing “solely

to impose the five year mandatory postrelease control.”1 A resentencing hearing

was held for the “limited purpose” to “re-sentence Mr. Black, to state on the

record that he basically is going to receive five years of post release control ***.”

(Oct. 25, 2010 Sentencing Tr., p. 2.) On November 1, 2010, the trial court filed

the corrected Entry of Sentence, imposing the same sentence as in his original

sentence for each of the seven counts, but also adding the notification that PRC is

mandatory for five years.

{¶4} Black now appeals from this new sentencing entry, raising the

following assignment of error for our review.

Assignment of Error

The trial court erred as a matter of law, and in prejudice of [Black], when it failed to give reasons in support of its findings when it imposed consecutive sentences.

{¶5} Black argues that the trial court erred by failing to make findings,

pursuant to R.C. 2929.14(E)(4), prior to imposing consecutive sentences. We find

that his argument is without merit for several reasons.

1 The original August 1, 2006 Entry of Sentencing notified Defendant about his parole eligibility after ten years on count one, pursuant to R.C. 2967.13. The judgment then stated that if Defendant was ever paroled and then found to have violated any term of his parole, the Adult Parole Authority could impose a more restrictive sanction and he could face being returned to prison until his death. The judgment entry further stated that, “Defendant is Ordered to serve as part of this sentence any term of post release control imposed by the Parole Board, and any prison term for violation of that parole.” However, the trial court did not specify a definitive mandatory term of five years of postrelease control. See State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110; R.C. 2967.28(B).

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{¶6} As a preliminary matter, Black’s resentencing was only for the narrow

purpose of imposing the correct PRC. Black’s limited sentencing hearing to

correct the portion of his sentence pertaining to PRC “cannot be used as a vehicle

to reopen all other aspects of his case.” See State v. Griffin, 3d Dist. No. 1-10-27,

2011-Ohio-1462, ¶9.

{¶7} R.C. 2929.191, enacted as part of H.B. 137, establishes a procedure to

remedy sentences that fail to properly impose a term of PRC for defendants, like

Black, who were sentenced on or after its July 11, 2006 effective date. See State

v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph

two of the syllabus.

The hearing contemplated by R.C. 2929.191(C) and the correction contemplated by R.C. 2929.191(A) and (B) pertain only to the flawed imposition of postrelease control. R.C. 2929.191 does not address the remainder of an offender's sentence. Thus, the General Assembly appears to have intended to leave undisturbed the sanctions imposed upon the offender which are unaffected by the court's failure to properly impose postrelease control at the original sentencing.

(Emphasis added.) Singleton at ¶24.

{¶8} The Ohio Supreme Court recently affirmed that it is only the PRC

aspect of a sentence that must be rectified, and the remainder of the sentence

remains valid under the principles of res judicata. State v. Fischer, 128 Ohio St.3d

92, 2010-Ohio-6238, 942 N.E.2d 332, ¶17. Although the issue in Fischer

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pertained to the imposition of PRC in a case where the defendant was sentenced

before the effective date of R.C. 2929.191, its reasoning is equally applicable to

the facts in any case where a court has not properly imposed PRC. See id. at ¶31

(stating that “[o]ur decision today is limited to a discrete vein of cases; those in

which a court does not properly impose a statutorily mandated period of

postrelease control.”) “[R]es 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 paragraph three of the syllabus.

{¶9} And, even if other portions of Black’s sentence would have been

subject to review, Black’s argument has no basis in the current law. In State v.

Foster, the Ohio Supreme Court declared unconstitutional those portions of the

felony sentencing statutes that required judicial fact-finding before the trial court

could impose a prison sentence, specifically including R.C. 2929.14(E)(4). 109

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶97. The Ohio Supreme Court

held that, “[t]rial courts have full discretion to impose a prison sentence within the

statutory range and are no longer required to make findings or give their reasons

for imposing maximum, consecutive, or more than the minimum sentences.”

(Emphasis added.) Id. at paragraph seven of the syllabus. This reasoning was

recently reaffirmed in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941

N.E.2d 768, at paragraphs two and three of the syllabus.

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{¶10} Based on the above, Black’s assignment of error is overruled.

Having found no error prejudicial to the Appellant herein in the particulars

assigned and argued, we affirm the judgment of the trial court.

ROGERS, P.J. and SHAW, J., concur.

/jlr

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