State v. Hammock

2018 Ohio 3914

• Court: Ohio Court of Appeals
• Decided: September 26, 2018
• Docket: 18CA27
• Status: Published

Opinion

[Cite as State v. Hammock, 2018-Ohio-3914.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 18CA27 : BRUCE HAMMOCK : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 15-CR- 0858D

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESENTENCING

DATE OF JUDGMENT ENTRY: September 26, 2018

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

GARY BISHOP BRUCE A. HAMMOCK, PRO SE RICHLAND CO. PROSECUTOR Inmate No. 682-596 JOSEPH C. SNYDER Trumbull Correctional Institution 38 South Park St. P.O. Box 901 Mansfield, OH 44902 Leavittsburg, OH 44430 Richland County, Case No. 18CA27 2

Delaney, J.

{¶1} Appellant Bruce Hammock appeals from the March 15, 2018 judgment

entry of the Richland County Court of Common Pleas overruling his motion for

resentencing. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} A statement of the facts underlying appellant’s criminal convictions is not

necessary to our resolution of this appeal. In 2015, appellant was charged by indictment

with cocaine possession with a firearm specification, having weapons while under

disability with a forfeiture specification, fleeing and eluding with a firearm specification,

two counts of improper handling of a firearm in a motor vehicle, carrying a concealed

weapon, and OVI.

{¶3} On February 8, 2016, appellant entered pleas of guilty. On April 11, 2016,

the trial court sentenced appellant to an aggregate prison term of 4 years in addition to a

term of community control. Appellant was advised he was subject to 5 years of mandatory

post-release control.

{¶4} On July 8, 2016, we denied appellant’s motion for delayed appeal in Case

No. 16-CA-37. Appellant’s motion for reconsideration was overruled and his appeal to

the Ohio Supreme Court was declined. State v. Hammock, 147 Ohio St.3d 1438, 2016-

Ohio-7677, 63 N.E.3d 157.

{¶5} On December 4, 2017, appellant filed a “Motion for Resentencing” in the

trial court and made the following arguments: 1) the sentencing entry was not a final

appealable order because the trial court failed to impose a separate sentence on each

individual offense; 2) the trial court erred in ordering the community-control sanction to be Richland County, Case No. 18CA27 3

served consecutively to the prison term; and 3) post-release control was not properly

imposed.

{¶6} The trial court overruled the motion on March 15, 2018, finding the motion

was an untimely petition for post-conviction relief.

{¶7} Appellant now appeals from the trial court’s judgment entry overruling his

motion for resentencing.

{¶8} Appellant raises four assignments of error:

ASSIGNMENTS OF ERROR

{¶9} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY SENTENCING

HAMMOCK TO COMMUNITY CONTROL ON A MATTER THAT THE GENERAL

ASSEMBLY HAS CLEARLY DECLARED TO BE A NONPROBATIONABLE OFFENSE.”

{¶10} “II. THE TRIAL COURT ERRED BY FAILING TO IMPOSE A [SEPARATE]

SENTENCE ON EACH INDIVIDUAL OFFENSE, THERE HAS BEEN A JUDGMENT

WHICH IS NOT A FINAL APPEALABLE ORDER FROM WHICH HAMMOCK COULD

NOT FILE A DIRECT APPEAL (SIC THROUGHOUT).”

{¶11} “III. THE TRIAL COURT ERRED BY ORDERING HAMMOCK’S

COMMUNITY CONTROL SANCTION TO BE SERVED CONSECUTIVE TO HIS

PRISON TERM.”

{¶12} “IV. THE TRIAL COURT ERRED BY NOT PROPERLY NOTIFYING

HAMMOCK OF POST-RELEASE CONTROL, AND THE DETAILS OF POST-RELEASE

CONTROL AND THE CONSEQUENCES OF VIOLATING POST-RELEASE CONTROL.” Richland County, Case No. 18CA27 4

ANALYSIS

{¶13} We will address appellant’s assignments of error out of order.

IV.

{¶14} We begin with appellant’s fourth assignment of error: he argues the trial

court failed to properly advise him of the consequences of violating post-release control.

We agree.

{¶15} The caption of a pro se pleading does not define the nature of the pleading.

State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997). Thus, if the pleading

meets the definition of a petition for post-conviction relief, it must be treated as such,

regardless of the manner in which appellant actually presents the motion to the court.

State v. Green, 5th Dist. Knox No. 15–CA–13, 2015–Ohio–4441, ¶ 13. A motion meets

the definition of a motion for post-conviction relief set forth in R.C. 2953.21(A)(1), despite

the caption or manner in which a defendant presents a motion to the court, if it is (1) filed

subsequent to direct appeal; (2) claims a denial of constitutional rights; (3) seeks to render

the judgment void; and (4) asks for vacation of the judgment and sentence. Reynolds,

supra, 79 Ohio St.3d at 160.

{¶16} We find the trial court erred in treating appellant’s motion for resentencing

as a petition for post-conviction relief as to this claim. A claim that an appellant was not

properly informed of post-release control is based solely on state statutory requirements

and is not a constitutional claim. State v. Smith, 5th Dist. Fairfield No. 14-CA-18, 2014-

Ohio-4657, ¶ 17. Further, the Ohio Supreme Court has held that where a trial court did

not properly impose post-release control, the sentence is void, and principles of res

judicata do not preclude appellate review. State v. Fischer, 128 Ohio St.3d 92, 2010– Richland County, Case No. 18CA27 5

Ohio–6238, 942 N.E.2d 332, ¶ 30. The sentence may be reviewed at any time, on direct

appeal or by collateral attack. Id. The trial court therefore erred in converting this portion

of appellant's motion to vacate a void sentence into a petition for post-conviction relief.

Smith, supra, 2014-Ohio-4657 at ¶ 17.

{¶17} Although the sentencing entry recites that appellant was informed of post-

release control, the transcript of the sentencing hearing reflects that the trial court failed

to inform appellant of the consequences of violating post-release control. A trial court may

correct its omission to inform a defendant about post-release control sanctions by

complying with R.C. 2929.191 and issuing a corrected sentence. State v. Alexander, 5th

Dist. Stark No. 13–CA–151, 2014–Ohio–2351, ¶ 21.

{¶18} However, in cases where no corrected entry is necessary, only a hearing is

required. Id. Because the trial court did not verbally inform appellant of mandatory post-

release control sanctions at sentencing, his fourth assignment of error is sustained, and

appellant is entitled to a new limited sentencing hearing during which the court will explain

the mandatory period of post-release control included in his sentence, including the

consequences of violating post-release control. Smith, supra, 2014-Ohio-4657, ¶ 25.

{¶19} This matter is remanded to the trial court for the limited purpose of holding

a sentencing hearing to address appellant in regard to his post-release control sanction.

Smith, supra, 2014-Ohio-4657 at ¶ 26.

III.

{¶20} In his third assignment of error, appellant argues the trial court erred in

sentencing him to a term of community control to be served consecutive to his prison Richland County, Case No. 18CA27 6

term. We disagree because appellant’s community-control sanction does not include a

term in a CBCF.

{¶21} We recently noted in State v. Weber, 5th Dist. Fairfield No. 17-CA-36, 2018-

Ohio-3174, our authority on this issue is at odds with decisions from other Courts of

Appeal, specifically the Eighth and Twelfth Districts.1 We certified a conflict to the Ohio

Supreme Court in State v. Hitchcock, 5th Dist. Fairfield No. 16-CA-41, 2017-Ohio-8255,

motion to certify allowed, 152 Ohio St.3d 1405, 2018-Ohio-723, 92 N.E.3d 877, and the

Court stayed briefing pending a decision in State v. Paige, ––– Ohio St.3d ––––, 2018-

Ohio-813.2 The Paige decision has now been announced although Hitchcock remains

pending. The split in authority will be further discussed infra.

{¶22} In Weber, we found this issue is not res judicata because it presents a split

of authority among the Courts of Appeal and is presently pending before the Ohio

Supreme Court. State v. Weber, 5th Dist. Fairfield No. 17-CA-36, 2018-Ohio-3174, ¶ 19.

Because this appeal raises the issue of the trial court's statutory authority to sentence

appellant in a certain way, we find the sentence is not res judicata. Id. We further found

1 State v. Anderson, 2016-Ohio-7044, 62 N.E.3d 229, ¶ 12 (8th Dist.) [“Because there is no statutory authority for the imposition of community control sanctions to be served consecutive to, or following the completion of, a prison or jail term or other sentence of imprisonment, the trial court was without authority to impose the same.”]; State v. Ervin, 12th Dist. No. CA2016-04-079, 2017-Ohio-1491, 89 N.E.3d 1, ¶ 23 [“Moreover, because there is no statutory authority for the imposition of community control sanctions to be served consecutive to, or following the completion of, a prison or jail term or other sentence of imprisonment, the trial court was without authority to impose the same. The community control sanctions are therefore void and must be vacated.”] 2The following issue of law was certified for review and final resolution: “Whether a trial court may impose a term of residential or nonresidential community control sanctions on one felony count, to be served consecutively to a term of imprisonment imposed on another count.” Richland County, Case No. 18CA27 7

that in accord with Paige, supra the trial court did not have statutory authority to order, as

part of the original sentence, appellant's placement into a CBCF as part of her community-

control sanction after her completion of the separate prison term. Id. at ¶ 28.

{¶23} In the instant case, we have reviewed the “Community Control Sanctions”

portion of the trial court’s Sentencing Entry of April 13, 2016. We note appellant’s

community-control sanction does not require him to complete a term in a CBCF. We

therefore find the trial court had authority to order him to complete a term of community

control after completion of his prison term. See, Weber, supra, 2018-Ohio-3174, ¶ 29.

{¶24} Appellant’s third assignment of error is therefore overruled.

II.

{¶25} Next, appellant argues the trial court erred in imposing a “lump sentence”

upon Counts II through VII. We disagree on the basis of res judicata.

{¶26} This argument could have been raised on direct appeal and is barred by res

judicata. State v. Smith, 5th Dist. Fairfield No. 14-CA-18, 2014-Ohio-4657, ¶ 19, citing

State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967); see also, State v. Houston, 73

Ohio St.3d 346, 347, 652 N.E.2d 1018 (1995), citing Perry, supra. “A defendant who fails

on direct appeal to challenge the sentence imposed on him for an offense is barred by

res judicata from appealing that sentence * * *.” State v. Lindsay, 5th Dist. Richland No.

16CA39, 2017–Ohio–595, ¶ 30.

{¶27} Therefore, the trial court properly denied appellant's motion on the basis of

res judicata. “Otherwise, appeals could be filed indefinitely.” State v. Henley, 2d Dist.

Montgomery No. 26604, 2015–Ohio–4113, ¶ 11; State v. Isa, 2nd Dist. Champaign No.

2015-CA-44, 2016-Ohio-4980, ¶ 9 [res judicata prevents appellant from raising sentence- Richland County, Case No. 18CA27 8

packaging issue now, as it could have been previously litigated and raised in prior appeal];

See also, State v. Selmon, 5th Dist. Richland No. 15 CA 83, 2016–Ohio–723; State v.

Lynch, 5th Dist. Muskingum No. CT2017-0040, 2017-Ohio-8642.

{¶28} The remand for resentencing upon appellant’s fourth assignment of error

does not entitle him to resentencing on all offenses. When a defendant fails to appeal

the sentence for a certain offense, he cannot take advantage of an error in the sentence

for an entirely separate offense to gain a second opportunity to appeal upon resentencing.

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 19. To hold

otherwise would essentially abrogate the doctrine of res judicata for multicount sentences

and precludes finality in sentencing. Id. Accordingly, a defendant who fails on direct

appeal to challenge the sentence imposed on him for an offense is barred by res judicata

from appealing that sentence following a remand for resentencing on other offenses. Id.

I.

{¶29} In his first assignment of error, appellant argues the trial court erred in

sentencing him to a term of community control on a “nonprobationable offense.” We

disagree because appellant raises this argument for the first time on appeal.

{¶30} Appellant failed to present this argument to the trial court and raises it for

the first time on appeal. He has therefore waived review of this issue. State v. Churchill,

5th Dist. Delaware No. 17 CAA 10 0068, 2018-Ohio-1031, ¶ 19, citing State v. Green, 5th

Dist. Stark No. 2011 CA 00127, 2011–Ohio–5611, ¶ 28–29; see also, State v. Lane, 5th

Dist. Licking No. 98 CA 75, 1998 WL 918257, *2, citing State v. Williams, 51 Ohio St.2d

112, 364 N.E.2d 1364 (1977), paragraph one of the syllabus [appellate court need not Richland County, Case No. 18CA27 9

consider error which party could have called to trial court's attention when such error could

have been avoided or corrected by trial court].

{¶31} Appellant’s first assignment of error is therefore overruled.

CONCLUSION

{¶32} Appellant’s fourth assignment of error is sustained and the remaining

assignments of error are overruled. This matter is remanded to the trial court for the

limited purpose of holding a sentencing hearing to address appellant in regard to his post-

release control sanction. State v. Smith, 5th Dist. Fairfield No. 14-CA-18, 2014-Ohio-

4657, ¶ 26.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.