[Cite as State v. Gregley, 2012-Ohio-3450.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97469
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DUANE GREGLEY DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-358368
BEFORE: E. Gallagher, J., Boyle, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: August 2, 2012 ATTORNEY FOR APPELLANT
Gregory Scott Robey Robey & Robey 14402 Granger Road Maple Heights, Ohio 44137
ALSO LISTED
Duane Gregley Inmate No. 358-808 Richland Correctional Institution 1001 Olivesburg Road Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor BY: Mary H. McGrath Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:
{¶1} Duane Gregley appeals from the trial court’s imposition of postrelease
control. Gregley argues the trial court erred in imposing postrelease control, in failing
to advise him of his appellate rights, in failing to conduct a de novo sentencing hearing,
that his counsel rendered ineffective assistance and that his conviction is not valid. For
the following reasons, we reverse the decision of the trial court.
{¶2} In the underlying case, in June 1998, a jury convicted Gregley of two
counts of aggravated murder with mass-murder specifications and a three-year firearm
specification, one count of attempted aggravated murder with a three-year firearm
specification, and one count of carrying a concealed weapon. The court found Gregley
guilty of having a weapon while under disability. When the jury deadlocked on the
sentencing recommendation the judge sentenced Gregley to concurrent terms of three
years on the firearm specifications, life imprisonment without parole for each of the
aggravated murder counts, nine years for the attempted murder charge and one year for
each of the weapons charges. The judge further ordered that the sentences for the
aggravated murder charges and the attempted murder charge were to be served
consecutively. The judge further added, “Sentence includes any extensions provided
by law.”
{¶3} Gregley appealed and this court affirmed his convictions. State v. Gregley, 8th Dist. No. 75032, 1999 WL 1204872 (Dec. 16, 1999); motion for delayed
appeal denied, State v. Gregley, 88 Ohio St.3d 1514, 728 N.E.2d 402. Gregley also
filed an application to reopen this court’s judgment in State v. Gregley, 8th Dist. No.
75032, supra, pursuant to App.R. 26(B), which this court denied; State v. Gregley, 8th
Dist. No. 75032, 2000 WL 1610106 (Oct. 18, 2000).
{¶4} On December 18, 2009, Gregley filed a motion for sentencing and final
appealable order based on the trial court’s alleged failure to properly impose postrelease
control. Ten days later, the trial court denied this motion as follows: “Defendant’s
motion (pro se) for sentencing etc. is overruled. Defendant was sentenced to two
consecutive life terms without parole, and thus P.R.C. does not apply.” Gregley did not
appeal the ruling; instead, he commenced a procedendo action. In denying the writ, this
court determined that:
Gregley had notice of postrelease control issues when the trial judge added the language that “Sentence includes any extensions provided by law.” Additionally, Gregley explicitly raised the issue of postrelease control in his motion for resentencing, but chose not to appeal the denial of that motion. Furthermore, the issues of statutory interpretation, mootness, and futility as they relate to postrelease control are better resolved on appeal with a complete record, than through an extraordinary writ.
State ex rel. Duane Gregley v. Stuart Friedman, Judge, 8th Dist. No. 96255,
2011-Ohio-2293.
{¶5} Gregley appealed this court’s decision to the Ohio Supreme Court, which
dismissed Gregley’s action. State ex rel. Gregley v. Friedman, 130 Ohio St.3d 1473,
2011-Ohio-6124, 957 N.E.2d 1166. {¶6} On September 22, 2011, the trial court appointed Gregley counsel, ordered
him returned from the institution and scheduled a hearing to impose postrelease control.
On October 7, 2011, the trial court conducted a hearing and imposed five years of
mandatory postrelease control for attempted aggravated murder and three years
postrelease control for having a weapon while under disability. Gregley objected to the
proceedings and appealed, raising the six assignments of error contained in the appendix
to this opinion.
{¶7} In his first assignment of error, Gregley argues the trial court erred in
imposing postrelease control on the offenses of attempted aggravated murder, having a
weapon while under disability and carrying a concealed weapon because his sentences
for those crimes had expired. We agree.
{¶8} First, we note that while Gregley claims the court imposed a term of
postrelease control for the charge of carrying a concealed weapon, the transcript and the
court’s journal reveals that it did not. Thus, we will limit our analysis to the court’s
imposition of postrelease control for the charges of attempted aggravated murder and
having a weapon while under disability.
{¶9} With regard to defendant’s sentence, we note that in State v. Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court held that
where postrelease control was erroneously imposed, resentencing is limited to proper
imposition of postrelease control. The defendant is not entitled to be resentenced on the
entire sentence — “only the portion that is void may be vacated and otherwise amended.” Id. However, where the defendant has completed his sentence, the trial
court may not hold a new sentencing hearing to remedy defectively imposed postrelease
control. State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568.
The trial court’s authority to resentence an offender to give the required notice of
postrelease control is limited to situations where the offender’s sentence has not yet
expired. State v. Schmitt, 175 Ohio App.3d 600, 2008-Ohio-1010, 888 N.E.2d 479 (3d
Dist.); State v. Watt, 175 Ohio App.3d 613, 2008-Ohio-1009, 888 N.E.2d 489 (3d Dist.).
{¶10} In State v. Pesci, 8th Dist. No. 94904, 2011-Ohio-1058, this court
explained:
Because Pesci’s sentences had expired by the time he filed his motions to vacate, the trial court was without authority to resentence him. Once an offender has served the prison term ordered by the trial court, he or she cannot be subject to resentencing in order to correct the trial court’s failure to properly impose postrelease control.
{¶11} The Pesci court further held that the portion of the sentence that did not
pertain to postrelease control remained in effect and “only the void part of the sentence is
vacated, not the entire sentence.” See State v. Harris, 8th Dist. No. 95097,
2011-Ohio-1072 (noting that if the defendant’s sentence has expired and he has been
released from custody, postrelease control cannot be imposed); State v. Hayden, 8th Dist.
No. 94955, 2011-Ohio-616 (resentencing to add postrelease control was affirmed where
the trial court held resentencing hearing solely on the issue of postrelease control and
hearing).
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[Cite as State v. Gregley, 2012-Ohio-3450.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97469
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DUANE GREGLEY DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-358368
BEFORE: E. Gallagher, J., Boyle, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: August 2, 2012 ATTORNEY FOR APPELLANT
Gregory Scott Robey Robey & Robey 14402 Granger Road Maple Heights, Ohio 44137
ALSO LISTED
Duane Gregley Inmate No. 358-808 Richland Correctional Institution 1001 Olivesburg Road Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor BY: Mary H. McGrath Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:
{¶1} Duane Gregley appeals from the trial court’s imposition of postrelease
control. Gregley argues the trial court erred in imposing postrelease control, in failing
to advise him of his appellate rights, in failing to conduct a de novo sentencing hearing,
that his counsel rendered ineffective assistance and that his conviction is not valid. For
the following reasons, we reverse the decision of the trial court.
{¶2} In the underlying case, in June 1998, a jury convicted Gregley of two
counts of aggravated murder with mass-murder specifications and a three-year firearm
specification, one count of attempted aggravated murder with a three-year firearm
specification, and one count of carrying a concealed weapon. The court found Gregley
guilty of having a weapon while under disability. When the jury deadlocked on the
sentencing recommendation the judge sentenced Gregley to concurrent terms of three
years on the firearm specifications, life imprisonment without parole for each of the
aggravated murder counts, nine years for the attempted murder charge and one year for
each of the weapons charges. The judge further ordered that the sentences for the
aggravated murder charges and the attempted murder charge were to be served
consecutively. The judge further added, “Sentence includes any extensions provided
by law.”
{¶3} Gregley appealed and this court affirmed his convictions. State v. Gregley, 8th Dist. No. 75032, 1999 WL 1204872 (Dec. 16, 1999); motion for delayed
appeal denied, State v. Gregley, 88 Ohio St.3d 1514, 728 N.E.2d 402. Gregley also
filed an application to reopen this court’s judgment in State v. Gregley, 8th Dist. No.
75032, supra, pursuant to App.R. 26(B), which this court denied; State v. Gregley, 8th
Dist. No. 75032, 2000 WL 1610106 (Oct. 18, 2000).
{¶4} On December 18, 2009, Gregley filed a motion for sentencing and final
appealable order based on the trial court’s alleged failure to properly impose postrelease
control. Ten days later, the trial court denied this motion as follows: “Defendant’s
motion (pro se) for sentencing etc. is overruled. Defendant was sentenced to two
consecutive life terms without parole, and thus P.R.C. does not apply.” Gregley did not
appeal the ruling; instead, he commenced a procedendo action. In denying the writ, this
court determined that:
Gregley had notice of postrelease control issues when the trial judge added the language that “Sentence includes any extensions provided by law.” Additionally, Gregley explicitly raised the issue of postrelease control in his motion for resentencing, but chose not to appeal the denial of that motion. Furthermore, the issues of statutory interpretation, mootness, and futility as they relate to postrelease control are better resolved on appeal with a complete record, than through an extraordinary writ.
State ex rel. Duane Gregley v. Stuart Friedman, Judge, 8th Dist. No. 96255,
2011-Ohio-2293.
{¶5} Gregley appealed this court’s decision to the Ohio Supreme Court, which
dismissed Gregley’s action. State ex rel. Gregley v. Friedman, 130 Ohio St.3d 1473,
2011-Ohio-6124, 957 N.E.2d 1166. {¶6} On September 22, 2011, the trial court appointed Gregley counsel, ordered
him returned from the institution and scheduled a hearing to impose postrelease control.
On October 7, 2011, the trial court conducted a hearing and imposed five years of
mandatory postrelease control for attempted aggravated murder and three years
postrelease control for having a weapon while under disability. Gregley objected to the
proceedings and appealed, raising the six assignments of error contained in the appendix
to this opinion.
{¶7} In his first assignment of error, Gregley argues the trial court erred in
imposing postrelease control on the offenses of attempted aggravated murder, having a
weapon while under disability and carrying a concealed weapon because his sentences
for those crimes had expired. We agree.
{¶8} First, we note that while Gregley claims the court imposed a term of
postrelease control for the charge of carrying a concealed weapon, the transcript and the
court’s journal reveals that it did not. Thus, we will limit our analysis to the court’s
imposition of postrelease control for the charges of attempted aggravated murder and
having a weapon while under disability.
{¶9} With regard to defendant’s sentence, we note that in State v. Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court held that
where postrelease control was erroneously imposed, resentencing is limited to proper
imposition of postrelease control. The defendant is not entitled to be resentenced on the
entire sentence — “only the portion that is void may be vacated and otherwise amended.” Id. However, where the defendant has completed his sentence, the trial
court may not hold a new sentencing hearing to remedy defectively imposed postrelease
control. State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568.
The trial court’s authority to resentence an offender to give the required notice of
postrelease control is limited to situations where the offender’s sentence has not yet
expired. State v. Schmitt, 175 Ohio App.3d 600, 2008-Ohio-1010, 888 N.E.2d 479 (3d
Dist.); State v. Watt, 175 Ohio App.3d 613, 2008-Ohio-1009, 888 N.E.2d 489 (3d Dist.).
{¶10} In State v. Pesci, 8th Dist. No. 94904, 2011-Ohio-1058, this court
explained:
Because Pesci’s sentences had expired by the time he filed his motions to vacate, the trial court was without authority to resentence him. Once an offender has served the prison term ordered by the trial court, he or she cannot be subject to resentencing in order to correct the trial court’s failure to properly impose postrelease control.
{¶11} The Pesci court further held that the portion of the sentence that did not
pertain to postrelease control remained in effect and “only the void part of the sentence is
vacated, not the entire sentence.” See State v. Harris, 8th Dist. No. 95097,
2011-Ohio-1072 (noting that if the defendant’s sentence has expired and he has been
released from custody, postrelease control cannot be imposed); State v. Hayden, 8th Dist.
No. 94955, 2011-Ohio-616 (resentencing to add postrelease control was affirmed where
the trial court held resentencing hearing solely on the issue of postrelease control and
hearing).
{¶12} In the present case, the State, in its brief to the Ohio Supreme Court in State ex rel. Gregley v. Friedman, supra, conceded that Gregley’s prison terms for the
convictions of attempted aggravated murder and having a weapon while under disability
had expired prior to the court’s hearing on October 7, 2011. Therefore, we conclude
that the trial court was without the authority to impose postrelease control for those
crimes. Gregley has completed his sentences on the charges of attempted aggravated
murder and having a weapon while under disability and is not subject to postrelease
control.
{¶13} Gregley’s first assignment of error is sustained.
{¶14} Our analysis of Gregley’s first assignment of error renders his second,
third, fourth, and fifth assignments of error moot.
{¶15} In his sixth and final assignment of error, Gregley argues that the trial
court’s failure to initially impose postrelease control renders his convictions on all
charges invalid. We disagree.
{¶16} The Ohio Supreme Court in Fischer declared that “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.” Id. at ¶ 40.
{¶17} Throughout the lengthy procedural history of this case, Gregley has
appealed, or had the opportunity to appeal, the validity of his conviction and sentence.
As such, any arguments made during this latest appeal concerning the validity of his convictions are barred by res judicata.
{¶18} Gregley’s final assignment of error is overruled.
{¶19} The judgment of the trial court is reversed and remanded in order to
correct the record as to postrelease control by journal entry.
It is ordered that appellant recover of said appellee 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
lower court 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.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and SEAN C. GALLAGHER, J., CONCUR
Appendix
Assignments of Error:
I. “The trial court erred to the prejudice of Appellant in violation of the due process clause of the Fourteenth Amendment to the U.S. Constitution when it resentenced him for offenses where the sentences for those offenses had already been completed.
II. “The trial court erred to the prejudice of Appellant in violation of the due process clause of the Fourteenth Amendment to the U.S. Constitution when it issued a journal entry separate and apart from the sentencing entry and failed to properly incorporate postrelease control in a re-sentencing entry.
III. “Appellant was denied the right to effective assistance of counsel and due process in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution and Crim.R. 32(A) when counsel failed to ensure he understood his right to allocation in a manner reasonably intelligible to him, which led to the forfeiture of the right itself.
IV. “Appellant is denied counsel and due process in violation of the Sixth and Fourteenth Amendment to the U.S. Constitution when the trial court failed to inform him of his appellate rights pursuant to Crim. R. 32(B) during postrelease control re-sentencing — a critical stage of the criminal proceeding — and counsel is not appointed and re-sentencing transcript at state’s expense is not granted for the purpose of appeal where he is indigent.
V. “Appellant was denied due process and equal protection in violation of the Fourteenth Amendment to the U.S. Constitution and Article I, Sections 10 and 16 of the Ohio Constitution when the trial court failed to afford him a de novo sentencing hearing as required by case law established at the time of his motion for sentencing, but later retroactively applies State v. Fischer (2010), 128 Ohio St.3d 92. VI. “Appellant’s conviction is not valid because Ohio’s doctrine of res judicata presupposed a valid ‘final’ judgment, the doctrine cannot bar challenge to a conviction where the sentence was void, and thus, application thereof is contrary to U.S. Supreme precedent and denial of due process in violation of the Fourteenth Amendment to the U.S. Constitution.”