State v. Cottrell

2013 Ohio 2912

• Court: Ohio Court of Appeals
• Decided: July 3, 2013
• Docket: 99142
• Status: Published

Opinion

[Cite as State v. Cottrell, 2013-Ohio-2912.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99142

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

STEVE COTTRELL DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-409361

BEFORE: Stewart, A.J., S. Gallagher, J., and Keough, J.

RELEASED AND JOURNALIZED: July 3, 2013 ATTORNEY FOR APPELLANT

Paul Mancino, Jr. 75 Public Square, Suite 1016 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Matthew E. Meyer Adam Chaloupka Assistant County Prosecutors The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113 MELODY J. STEWART, A.J.:

{¶1} In 2002, a jury found defendant-appellant Steve Cottrell guilty of various

counts of aggravated murder and attempted murder, with firearm and gang specifications.

We affirmed those convictions on direct appeal, see State v. Cottrell, 8th Dist. No.

81356, 2003-Ohio-5806, but in 2012 found that the trial court erred at the time of

sentencing by not imposing a mandatory term of postrelease control. See State v.

Cottrell, 8th Dist. No. 97629, 2012-Ohio-2634, ¶ 9. We thus ordered a resentencing

“limited to the proper imposition of postrelease control.” Id. at ¶ 10. At resentencing,

Cottrell argued that despite our remand order limiting resentencing only to the issue of

postrelease control, he was entitled to a de novo resentencing on all counts and that the

provisions of R.C. 2929.191 setting forth the procedure to be followed to correct a

judgment of conviction concerning postrelease control were adopted after his original

sentencing and could not be applied retroactively to him. The court denied Cottrell’s

request for a de novo resentencing because it believed it was bound by the express terms

of the remand.

{¶2} The court properly refused to conduct a de novo resentencing on all counts

for two reasons. First, our opinion contained a mandate that Cottrell be resentenced

solely for the purpose of imposing postrelease control. That mandate was required by the

second paragraph of the syllabus to State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, which states: “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.)”

The court had no discretion to violate our mandate absent some intervening change in the

law. See R.C. 2949.05; State v. Carlisle, 8th Dist. No. 93266, 2010-Ohio-3407, ¶ 16-21,

aff’d on other grounds, 131 Ohio St.3d 127, 2011-Ohio-6553, 961 N.E.2d 671. In fact,

the court acknowledged the limited nature of the remand and in doing so properly limited

the proceedings to imposing postrelease control.

{¶3} Second, Cottrell’s argument that the statutory procedures for imposing

postrelease control under R.C. 2929.191, adopted after he had been sentenced in 2002,

cannot be applied retroactively to him ignores the Supreme Court’s holding in Fischer.

It is true that case decisions issued prior to Fischer — notably State v. Singleton, 124

Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958 — held that R.C. 2929.191 could not

be applied retroactively to offenders who were originally sentenced prior to July 11, 2006

(the effective date of R.C. 2929.191). Fischer, however, overruled Singleton, sub

silentio, and expressly authorized the type of limited resentencing ordered by this court

and carried into execution by the trial court. See State v. Sanders, 11th Dist.

No. 2011-P-0088, 2012-Ohio-5025, ¶ 15 (collecting cases). We thus find no error in the

manner in which the court imposed postrelease control.1

Cottrell also cites State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, 1

for the proposition that a court, on resentencing, cannot just impose postrelease control but must conduct a de novo resentencing. The state correctly notes that Bloomer does not stand for that {¶4} Judgment affirmed.

It is ordered that appellee recover of appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution. A certified

copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of

Appellate Procedure.

MELODY J. STEWART, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., and KATHLEEN ANN KEOUGH, J., CONCUR

proposition, and the legal proposition that Cottrell cites is from Singleton. We therefore find that Bloomer has no application to this appeal.