[Cite as State v. Falkenstein, 2013-Ohio-5315.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99670
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DONALD FALKENSTEIN DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-434255
BEFORE: McCormack, J., Stewart, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 5, 2013 ATTORNEY FOR APPELLANT
David L. Doughten The Brownhoist Building 4403 St. Clair Avenue Cleveland, OH 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Adam M. Chaloupka Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:
{¶1} This is the third time Donald Falkenstein appeals his conviction of rape of a
child under the age of 13. In this appeal, he claims the trial court erred by resentencing
him without a hearing. Finding no merit to his claim, we affirm the judgment of the trial
court.
{¶2} In 2003, Falkenstein was convicted of 41 counts of rape of a child under the
age of 13. The trial court sentenced him to consecutive life terms in prison, with the
parole eligibility after 20 years. This court affirmed Falkenstein’s conviction, in State v.
Falkenstein, 8th Dist. Cuyahoga No. 83316, 2004-Ohio-2561 (“Falkenstein I”).
{¶3} In October 2010, Falkenstein filed a pro se “motion to set aside/vacate or in
the alternat[ive] resentence him on an otherwise void sentence.” He argued his sentence
was void because the trial court failed to advise him of the mandatory five years of
postrelease control and of the consequences of a postrelease control violation — in the
2003 sentencing entry, the trial court stated postrelease control was part of Falkenstein’s
prison sentence “for the maximum period allowed for the above felony(s) under R.C.
2967.28,” without specifying that it would be a mandatory five-year term. In addition,
the journal entry did not mention the consequences of a postrelease-control violation.
{¶4} The trial court denied Falkenstein’s motion to set aside/vacate, and he
appealed that decision. In his (second) appeal, State v. Falkenstein, 8th Dist. Cuyahoga
No. 96659, 2011-Ohio-5188, (“Falkenstein II”), we noted that Falkenstein did not file a transcript of the sentencing hearing with this court, nor did he request one; in fact, he
stated a transcript was not necessary. Therefore, we determined that we must presume
that Falkenstein was properly advised at his sentencing hearing regarding his postrelease
control.
{¶5} We determined, however, that the sentencing entry was defective because
the trial court did not specifically notify him of the mandatory five-year term of
postrelease control for his first-degree sex offense, nor the consequences of a violation.
The main issue in the second appeal was how the defect in the sentencing entry should be
corrected by the trial court.
{¶6} Falksenstein argued he was entitled to a de novo sentencing hearing. We
rejected that claim, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332. Fischer held that “[t]he new sentencing hearing to which an offender is
entitled * * * is limited to proper imposition of postrelease control,” not a de novo
sentencing hearing. Fischer at paragraph two of the syllabus.
{¶7} Moreover, quoting the Fischer court’s observation that remand for
resentencing “is just one arrow in the quiver,” id. at ¶29, we interpreted Fischer as
permitting a correction of the sentencing entry without a remand for a (limited) hearing,
where a defendant had been notified of postrelease control at the sentencing hearing.
“Correcting the defect without remanding for resentencing can provide an equitable,
economical, and efficient remedy for a void sentence.” Id. at ¶30. {¶8} As a result, exercising our authority under R.C. 2953.08(G)(2), which
allows an appellate court to “increase, reduce or otherwise modify a sentence,” we
modified and corrected Falkenstein’s postrelease control from “the maximum period
allowed * * * under R.C. 2967.28” to “a mandatory term of five years postrelease
control.” Falkenstein II. We instructed the trial court to, upon remand, correct the
sentencing entry to reflect the proper period of mandatory postrelease control, i.e., five
years, and further, to include the consequences for violating the provisions of postrelease
control. Id. at ¶ 16. See also State v. May, 8th Dist. Cuyahoga Nos. 96362 and 96421,
2011-Ohio-6647, ¶ 12 (judgment modified to reflect a mandatory five-year term of
postrelease control and case remanded with instructions to correct the sentencing entry).
{¶9} Falkenstein did not appeal our decision in Falkenstein II to the Supreme
Court of Ohio, and upon remand, the trial court followed our directives — in a December
21, 2011 judgment entry, the court corrected the sentencing entry to reflect a notice of the
mandatory term of five years of postrelease control, and also of the consequences of a
violation.
{¶10} Falkenstein filed a delayed appeal challenging that judgment. This court
granted leave for the delayed appeal.
{¶11} In this (third) appeal, Falkenstein’s sole assignment of error states: “The
trial court erred by re-sentencing the defendant without a hearing in which the defendant
was present and represented by counsel.” {¶12} When a case is remanded, a lower court must “carry the mandate of the
upper court into execution and not consider the questions which the mandate laid at rest.”
State v. Carlisle, 8th Dist. Cuyahoga No. 93266, 2010-Ohio-3407, ¶ 16, citing Sprague v.
Ticonic Natl. Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). When the
mandate leaves nothing to decide, the lower court is bound to execute it. Id. citing
Sprague.
{¶13} Here, on remand from Falkenstein II, the trial court followed our
instructions and issued a corrected sentencing entry. In this third appeal, Falkenstein is
essentially challenging our holding in Falkenstein II — that the lack of a proper
postrelease advisement in the judgment entry can be remedied by a corrected judgment
entry reflecting the proper imposition of postrelease control.
{¶14} Filing an appeal from the trial court’s judgment that merely carried out our
mandate is not the proper procedural vehicle for having this court reconsider its prior
decision. To properly challenge our holding in Falkenstein II, Falkenstein should have
appealed our decision in Falkenstein II to the Supreme Court of Ohio. He did not.
{¶15} Furthermore, even if, for argument’s sake, we were to reconsider our
decision in Falkenstein II, we note that after this court issued Falkenstein II, the Supreme
Court of Ohio, in State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718,
specifically approved the use of a nunc pro tunc order to correct a flawed sentencing entry
that had omitted proper postrelease control notification, where the notification had been
given at the sentencing hearing. This case falls into that category, because of a presumption of regularity that arises from a lack of demonstration otherwise by the
appellant, as we noted in Falkenstein II.
{¶16} Since the 2012 Qualls decision, this court has consistently applied Qualls to
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[Cite as State v. Falkenstein, 2013-Ohio-5315.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99670
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DONALD FALKENSTEIN DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-434255
BEFORE: McCormack, J., Stewart, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 5, 2013 ATTORNEY FOR APPELLANT
David L. Doughten The Brownhoist Building 4403 St. Clair Avenue Cleveland, OH 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Adam M. Chaloupka Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:
{¶1} This is the third time Donald Falkenstein appeals his conviction of rape of a
child under the age of 13. In this appeal, he claims the trial court erred by resentencing
him without a hearing. Finding no merit to his claim, we affirm the judgment of the trial
court.
{¶2} In 2003, Falkenstein was convicted of 41 counts of rape of a child under the
age of 13. The trial court sentenced him to consecutive life terms in prison, with the
parole eligibility after 20 years. This court affirmed Falkenstein’s conviction, in State v.
Falkenstein, 8th Dist. Cuyahoga No. 83316, 2004-Ohio-2561 (“Falkenstein I”).
{¶3} In October 2010, Falkenstein filed a pro se “motion to set aside/vacate or in
the alternat[ive] resentence him on an otherwise void sentence.” He argued his sentence
was void because the trial court failed to advise him of the mandatory five years of
postrelease control and of the consequences of a postrelease control violation — in the
2003 sentencing entry, the trial court stated postrelease control was part of Falkenstein’s
prison sentence “for the maximum period allowed for the above felony(s) under R.C.
2967.28,” without specifying that it would be a mandatory five-year term. In addition,
the journal entry did not mention the consequences of a postrelease-control violation.
{¶4} The trial court denied Falkenstein’s motion to set aside/vacate, and he
appealed that decision. In his (second) appeal, State v. Falkenstein, 8th Dist. Cuyahoga
No. 96659, 2011-Ohio-5188, (“Falkenstein II”), we noted that Falkenstein did not file a transcript of the sentencing hearing with this court, nor did he request one; in fact, he
stated a transcript was not necessary. Therefore, we determined that we must presume
that Falkenstein was properly advised at his sentencing hearing regarding his postrelease
control.
{¶5} We determined, however, that the sentencing entry was defective because
the trial court did not specifically notify him of the mandatory five-year term of
postrelease control for his first-degree sex offense, nor the consequences of a violation.
The main issue in the second appeal was how the defect in the sentencing entry should be
corrected by the trial court.
{¶6} Falksenstein argued he was entitled to a de novo sentencing hearing. We
rejected that claim, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332. Fischer held that “[t]he new sentencing hearing to which an offender is
entitled * * * is limited to proper imposition of postrelease control,” not a de novo
sentencing hearing. Fischer at paragraph two of the syllabus.
{¶7} Moreover, quoting the Fischer court’s observation that remand for
resentencing “is just one arrow in the quiver,” id. at ¶29, we interpreted Fischer as
permitting a correction of the sentencing entry without a remand for a (limited) hearing,
where a defendant had been notified of postrelease control at the sentencing hearing.
“Correcting the defect without remanding for resentencing can provide an equitable,
economical, and efficient remedy for a void sentence.” Id. at ¶30. {¶8} As a result, exercising our authority under R.C. 2953.08(G)(2), which
allows an appellate court to “increase, reduce or otherwise modify a sentence,” we
modified and corrected Falkenstein’s postrelease control from “the maximum period
allowed * * * under R.C. 2967.28” to “a mandatory term of five years postrelease
control.” Falkenstein II. We instructed the trial court to, upon remand, correct the
sentencing entry to reflect the proper period of mandatory postrelease control, i.e., five
years, and further, to include the consequences for violating the provisions of postrelease
control. Id. at ¶ 16. See also State v. May, 8th Dist. Cuyahoga Nos. 96362 and 96421,
2011-Ohio-6647, ¶ 12 (judgment modified to reflect a mandatory five-year term of
postrelease control and case remanded with instructions to correct the sentencing entry).
{¶9} Falkenstein did not appeal our decision in Falkenstein II to the Supreme
Court of Ohio, and upon remand, the trial court followed our directives — in a December
21, 2011 judgment entry, the court corrected the sentencing entry to reflect a notice of the
mandatory term of five years of postrelease control, and also of the consequences of a
violation.
{¶10} Falkenstein filed a delayed appeal challenging that judgment. This court
granted leave for the delayed appeal.
{¶11} In this (third) appeal, Falkenstein’s sole assignment of error states: “The
trial court erred by re-sentencing the defendant without a hearing in which the defendant
was present and represented by counsel.” {¶12} When a case is remanded, a lower court must “carry the mandate of the
upper court into execution and not consider the questions which the mandate laid at rest.”
State v. Carlisle, 8th Dist. Cuyahoga No. 93266, 2010-Ohio-3407, ¶ 16, citing Sprague v.
Ticonic Natl. Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). When the
mandate leaves nothing to decide, the lower court is bound to execute it. Id. citing
Sprague.
{¶13} Here, on remand from Falkenstein II, the trial court followed our
instructions and issued a corrected sentencing entry. In this third appeal, Falkenstein is
essentially challenging our holding in Falkenstein II — that the lack of a proper
postrelease advisement in the judgment entry can be remedied by a corrected judgment
entry reflecting the proper imposition of postrelease control.
{¶14} Filing an appeal from the trial court’s judgment that merely carried out our
mandate is not the proper procedural vehicle for having this court reconsider its prior
decision. To properly challenge our holding in Falkenstein II, Falkenstein should have
appealed our decision in Falkenstein II to the Supreme Court of Ohio. He did not.
{¶15} Furthermore, even if, for argument’s sake, we were to reconsider our
decision in Falkenstein II, we note that after this court issued Falkenstein II, the Supreme
Court of Ohio, in State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718,
specifically approved the use of a nunc pro tunc order to correct a flawed sentencing entry
that had omitted proper postrelease control notification, where the notification had been
given at the sentencing hearing. This case falls into that category, because of a presumption of regularity that arises from a lack of demonstration otherwise by the
appellant, as we noted in Falkenstein II.
{¶16} Since the 2012 Qualls decision, this court has consistently applied Qualls to
allow the use of a nunc pro tunc entry to correct a defective sentencing entry. See, e.g.,
State v. Cvijetinovic, 8th Dist. Cuyahoga No. 99316, 2013-Ohio-3251 (the trial court
properly advised a defendant of postrelease control at the sentencing hearing, but failed to
include it in the sentencing journal entry, and the omission can be corrected nunc pro
tunc); State v. Robinson, 8th Dist. Cuyahoga No. 97951, 2012-Ohio-5506 (the sentencing
entry did not mention postrelease control, and this court remanded the matter for a nunc
pro tunc entry to reflect the proper imposition of postrelease control); State v. Williamson,
8th Dist. Cuyahoga No. 99473, 2013-Ohio-3733, ¶ 17 (where a defendant failed to
demonstrate a deficient postrelease control notification at the sentencing hearing but the
judgment entry omitted a full notification, the defendant was not entitled to a new
sentencing hearing and a nunc pro tunc entry may be used to correct any omission).
{¶17} In Falkenstein II, we modified appellant’s sentence and remanded the case
for the trial court to correct the sentencing entry. Although we did not specifically use
the term “nunc pro tunc,” our instructions regarding the trial court’s duty on remand is
consistent with Qualls.
{¶18} Falkenstein’s assignment of error lacks merit. The judgment of the trial
court is affirmed.
It is ordered that appellee recover of appellant 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 common
pleas court to carry this judgment into execution. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________ TIM McCORMACK, JUDGE
MELODY J. STEWART, A.J., and PATRICIA ANN BLACKMON, J., CONCUR