State v. Bolling

2019 Ohio 227

• Court: Ohio Court of Appeals
• Decided: January 25, 2019
• Docket: 27923
• Status: Published

Opinion

[Cite as State v. Bolling, 2019-Ohio-227.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27923 : v. : Trial Court Case No. 2003-CR-73 : ANTHONY K. BOLLING : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 25th day of January, 2019.

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, 5th Floor, Ohio 45422 Attorney for Plaintiff-Appellee

DANIEL E. BRINKMAN, Atty. Reg. No. 0025365, P.O. Box 302, Bellbrook, Ohio 45305 Attorney for Defendant-Appellant

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DONOVAN, J.

{¶ 1} After a jury trial in August 2003, Anthony K. Bolling was convicted of four

counts of rape (of a person under the age of thirteen, by force), and one count of felonious

sexual penetration (of a person under the age of thirteen, by force). On November 13,

2003, Bolling was sentenced to life imprisonment on each count, with the first three counts

to be served concurrently with each other, but consecutively to counts 4 and 5, and with

counts 4 and 5 to be served concurrently with each other, but consecutively to the first

three counts. The trial court did not impose post-release control. The judgment entry

reflected that Bolling had been convicted of each offense, but it did not specify the manner

of his conviction (by jury verdict, in this case). Bolling appealed, and we affirmed his

convictions and sentence. State v. Bolling, 2d Dist. Montgomery No. 20225, 2005-Ohio-

2509 (hereinafter “Bolling I”).

{¶ 2} In January 2011, Bolling moved to dismiss the indictment, contending that

there was a constitutional speedy trial violation, based upon the fact that he had not been

validly sentenced in the seven years since he was brought to trial. The trial court denied

his motion to dismiss. Bolling appealed the trial court’s judgment. We subsequently

affirmed the trial court, finding that Bolling’s 2003 judgment entry of conviction included

the fact that he had been convicted of all charges, the sentence, the judge’s signature,

and the time stamp indicating the clerk’s entry on the journal. Therefore, we held that

pursuant to State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142,

Bolling’s 2003 judgment entry of conviction contained all of the requirements for an

effective judgment entry of conviction. State v. Bolling, 2nd Dist. Montgomery No. 25471,

2011-Ohio-6487 (hereinafter “Bolling II”). -3-

{¶ 3} On July 27, 2017, Bolling filed a motion for resentencing and final appealable

order, requesting a de novo sentencing hearing to properly impose post-release control.

On January 23, 2018, the trial court issued a decision denying Bolling’s motion for a de

novo resentencing. Rather, the trial court held that the resentencing hearing would “be

limited to the proper imposition of post-release control with regard to Bolling’s convictions

for the four counts of Rape.” Thereafter, on February 2, 2018, the trial court conducted

a resentencing hearing strictly for the purpose of imposing post-release control for

Bolling’s rape convictions. On February 5, 2018, the trial court filed a nunc pro tunc and

an amended termination entry.1

{¶ 4} It is from this judgment that Bolling now appeals.

{¶ 5} Bolling’s first assignment of error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE

DEFENDANT A DE NOVO RE-SENTENCING.

{¶ 6} In his first assignment, Bolling contends that the trial court abused its

discretion when it limited the scope of the resentencing hearing to the proper imposition

of post-release control with regard to Bolling’s convictions for the four counts of rape.

Specifically, Bolling argues that the resentencing hearing should not have been limited to

the imposition of post-release control, because in his motion for a de novo sentencing

hearing, he identified additional alleged deficiencies in his original judgment entry of

conviction, specifically his improper designation as a “sexual predator,” and the

termination entry’s failure to include findings supporting the imposition of consecutive

sentences.

1 The amended termination entry states that Bolling was “convicted by a jury.” -4-

{¶ 7} “ ‘If a sentence is void for failure to include proper post-release-control

notification, the trial court—or the reviewing court—has an obligation to recognize the void

sentence, vacate it, and order resentencing.’ * * *.” State v. Hudson, 2d Dist. Clark No.

2014 CA 53, 2014-Ohio-5363, ¶ 19. “ ‘Post-release control’ involves a period of

supervision by the Adult Parole Authority after an offender’s release from prison that

includes one or more post-release control sanctions imposed under R.C. 2967.28. R.C.

2967.01(N). Post-release control is mandatory for some offenses and is imposed at the

discretion of the Parole Board for others. R.C. 2967.28(B); * * *.” Id. at ¶ 20. As this Court

further noted in Hudson:

The Supreme Court of Ohio has held that when a judge fails to

impose the required post-release control as part of a defendant’s sentence,

“that part of the sentence is void and must be set aside.” (Emphasis in

original.) State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d

332, ¶ 26; State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d

382. The improper post-release control sanction “may be reviewed at any

time, on direct appeal or by collateral attack,” Fischer at ¶ 27, but “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.

Id. at ¶ 21.

{¶ 8} Initially, we note that Bolling argues that the improper imposition of post-

release control rendered his entire sentence void. Bolling relies on a pre-Fischer case,

State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, in which the -5-

Ohio Supreme Court reiterated its prior rulings that a sentence that failed to properly

impose post-release control was contrary to law and thus void. In relevant part,

Singleton was reversed by Fischer. State v. Johnston, 2d Dist. Montgomery No. 26620,

2015-Ohio-4716, ¶ 13. Accordingly, only the post-release control portion of Bolling’s

sentence was void, not the entirety of his sentence. Id. Bolling, therefore, was not

entitled to a full de novo sentencing hearing, and the trial court correctly limited the

resentencing hearing to the proper imposition of post-release control sanctions. Id.

{¶ 9} In further support of his argument that he was entitled to a de novo

sentencing hearing, Bolling cites Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788,

177 L.Ed.2d 592 (2010) and King v. Morgan, 807 F.3d 154 (6th Cir.2015). In Magwood,

the U.S. Supreme Court held that a “single habeas corpus application” is based upon a

particular “judgment” of a state court. The Supreme Court further held that if a petitioner

who has already filed one federal habeas petition is resentenced in a state court, the

defendant’s subsequent federal habeas petition after resentencing does not qualify as a

“successive” petition requiring leave from a court of appeals. Id. at 331. This is the

procedure because a resentencing operates as a new “judgment.” Id.

{¶ 10} In King, the Sixth Circuit extended Magwood to challenges to a conviction.

After his conviction, King unsuccessfully sought federal habeas relief. Id. at 156. The

trial court subsequently vacated King’s sentence, but when he received a higher minimum

prison term after resentencing, he filed a second habeas petition. Id. Like the defendant

in Magwood, King had obtained an intervening judgment between his two habeas

petitions. Unlike Magwood, however, King’s second-in-time petition raised challenges to

his sentence and his conviction, even though he had received only a new sentence (rather -6-

than a new trial) in the interim. Id. at 157. King’s petition was not second or successive

under Magwood’s “judgment-based” approach, prohibiting the Sixth Circuit from dividing

King’s “application” into distinct “claims” and thus from assessing whether each one

challenged his conviction or his sentence. Id.; see also Magwood at 331; Askew v.

Bradshaw, 636 Fed.Appx. 342, 346-50 (6th Cir.2016). Instead, the Sixth Circuit treated

King’s application—his entire application—as the first one to challenge his new judgment,

which meant he did not have to meet the second or successive petition requirements.

{¶ 11} Recently, in In re Stansell, 828 F.3d 412 (6th Cir.2016), the petitioner filed

an initial habeas petition that was dismissed by the federal district court. Id. at 414. The

petitioner was thereafter granted a new sentencing hearing in state court under State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, for the proper imposition

of post-release control. Id. The petitioner also filed a motion for leave to file a successive

habeas application in federal court. Id. Upon review, the Sixth Circuit held that a

resentencing in Ohio state court to properly impose post-release control operates as a

new “judgment” under the federal habeas statute. Id. at 416-420. Therefore, the court

held that the “second or successive” habeas petition rules did not apply in this situation.

Id. Thus, the court denied Stansell’s petition for leave as unnecessary and transferred

his case to federal court to be reviewed on the merits. Id. at 420.

{¶ 12} Upon review, we conclude that Magwood, King, and Stansell do not apply

in the instant case. See State v. Henley, 2d Dist. Montgomery No. 27326, 2017-Ohio-

5828, ¶ 20. In fact, the only relevance these cases have to Bolling’s case is that, if he

wanted to file a successive habeas petition in federal court, he would not have to first

seek leave from the Sixth Circuit in order to do so. These cases have no effect, however, -7-

on Bolling’s appeal presently before this Court. “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.” Fischer at paragraph three of the syllabus. Contrary to Bolling’s

argument, a resentencing in order to properly impose post-release control does not permit

a defendant to raise new challenges to his underlying convictions that could have been

raised in his original appeal. Accordingly, the trial court did not err when it overruled his

motion for a full de novo sentencing hearing and limited the scope of the resentencing

hearing to the proper imposition of post-release control with regard to Bolling’s convictions

for the four counts of rape.

{¶ 13} Bolling’s first assignment of error is overruled.

{¶ 14} Because they are interrelated, the remainder of Bolling’s assignments of

error will be discussed together as follows:

THE DEFENDANT’S RIGHTS TO CONFRONTATION AND CROSS-

EXAMINATION WERE VIOLATED WHEN THE TRIAL COURT

RESTRICTED HIS ABILITY TO CROSS-EXAMINE HIS ACCUSER AND

THE LEAD DETECTIVE IN VIOLATION OF THE FIFTH AND SIXTH

AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION

10 OF THE OHIO CONSTITUTION.

THE STATE COMMITTED PROSECUTORIAL MISCONDUCT WHEN IT

MISLED THE JURY TO BELIEVE THAT JOSH HODSON WAS AN

EXPERT WITNESS WHEN HE WAS NEVER CERTIFIED AS AN EXPERT

BY THE TRIAL COURT.” -8-

THE APPELLANT’S RIGHT TO DUE PROCESS AND A FAIR TRIAL

WERE VIOLATED BECAUSE THE INDICTMENT WAS INSUFFICIENT TO

PUT THE DEFENDANT ON FAIR NOTICE OF THE CHARGES AGAINST

HIM.

THE DEFENDANT WAS DENIED THE RIGHT TO DUE PROCESS OF

LAW AND A FAIR TRIAL WHEN HE WAS PROHIBITED FROM ASKING

THE ACCUSER ANY QUESTIONS ABOUT ANOTHER RELATIONSHIP

AS EVIDENCE OF BIAS, BUT THE PROSECUTION WAS ALLOWED TO

EXAMINE THE WITNESS ABOUT THE RELATIONSHIP ON REBUTTAL.

{¶ 15} Upon review, we find res judicata applicable to these arguments. The

doctrine bars re-litigation of matters that either were raised in a prior appeal or could have

been raised in a prior appeal. State v. McCoy, 2d Dist. Greene No. 04CA112, 2005-Ohio-

6837, ¶ 15. Even if Bolling’s remaining four assignments of error addressed new

arguments that he did not raise previously, he could have raised them in his direct appeal

in Bolling I. Therefore, any issues regarding the original indictment and the admission

and/or exclusion of evidence by the trial court are barred by res judicata. Furthermore,

res judicata applies to all of the other aspects of the merits of Bolling’s convictions,

including the determination of guilt and the lawful elements of the ensuing sentence. See

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph three of the

syllabus.

{¶ 16} The second, third, fourth, and fifth assignments of error are overruled.

{¶ 17} All of Bolling’s assignments of error having been overruled, the judgment of

the trial court is affirmed. -9-

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HALL, J. and TUCKER, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Sarah E. Hutnik Daniel E. Brinkman Hon. Dennis J. Langer