State v. Oweis

2012 Ohio 443

• Court: Ohio Court of Appeals
• Decided: February 6, 2012
• Docket: 11 CAA 06 0050
• Status: Published

Opinion

[Cite as State v. Oweis, 2012-Ohio-443.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellant

-vs-

OSAMA J. OWEIS

Defendant-Appellee

JUDGES: Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

Case No. 11 CAA 06 0050

OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 06 CR I 11 513

JUDGMENT: Affirmed in Part; Reversed in Part and Remanded

DATE OF JUDGMENT ENTRY: February 6, 2012

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

CAROL HAMILTON O'BRIEN BRIAN G. JONES PROSECUTING ATTORNEY THE LAW OFFICE OF BRIAN JONES BRIAN J. WALTER 2211 U.S. Highway 23 North ASSISTANT PROSECUTOR Delaware, Ohio 43015 140 North Sandusky Street Delaware, Ohio 43015 Wise, J.

{¶1} Appellant/Cross-Appellee State of Ohio appeals the decision of the Court

of Common Pleas, Delaware County, following a re-sentencing of Defendant-

Appellee/Cross-Appellant Osama J. Oweis. The relevant facts leading to this appeal are

as follows.

{¶2} On August 10, 2007, appellee was convicted by a jury on one count of

aggravated robbery, in violation of R.C. 2911.01(A)(1), a felony of the first degree; one

count of grand theft, in violation of R.C. 2913.02(A)(1), a felony of the fifth degree; and

two counts of kidnapping, in violation of R.C. 2905.01(A)(2), both felonies of the second

degree.

{¶3} The trial court originally sentenced appellee on October 1, 2007. Based on

sentencing memoranda submitted by the parties, the trial court did not sentence

appellee on the aggravated robbery conviction. However, the trial court sentenced

appellee to a total of seventeen years in prison on the kidnapping and grand theft

convictions. The trial court informed appellee at the sentencing hearing and journalized

in the sentencing entry that as part of his sentence, postrelease control in this case was

discretionary for up to three years.

{¶4} On July 15, 2010, the trial court filed a Nunc Pro Tunc Judgment Entry on

Sentence pursuant to State v. Baker, 119 Ohio St.3d 197, 2008–Ohio–3330. The

judgment entry corrected the October 1, 2007 sentencing entry as to the term of

appellee’s postrelease control (“PRC”). The nunc pro tunc sentencing entry stated that

appellee was subject to a mandatory term of postrelease control of three years. See R.C. 2967.28(B)(2). The trial court did not conduct a resentencing hearing before

issuing the judgment entry.

{¶5} Appellee thereupon appealed to this Court. On March 30, 2011, we

reversed and remanded for a resentencing hearing regarding the trial court’s nunc pro

tunc entry of July 15, 2010.

{¶6} On May 4, 2011, the trial court conducted a resentencing hearing pursuant

to our remand. On May 12, 2011, the trial court issued an entry sentencing appellee to

eight years in prison on each of the two kidnapping counts, to be served consecutively

to each other. As to the theft count, the trial the court sentenced appellee to serve

twelve (12) months in prison, to be served concurrent to the kidnapping counts. Thus,

appellee’s original sentence from October 1, 2007 was reduced by one year to a total of

sixteen years.

{¶7} On June 2, 2011, Appellant State of Ohio filed a notice of appeal. It herein

raises the following sole Assignment of Error:

{¶8} “I. THE TRIAL COURT ERRED IN RECONSIDERING THE

DEFENDANT’S ORIGINAL SENTENCE DURING A RESENTENCING HEARING

LIMITED SOLELY TO THE ISSUE OF THE PROPER IMPOSITION OF POST-

RELEASE CONTROL.”

{¶9} Appellee has raised the following sole Assignment of Error in his cross-

appeal:

{¶10} “APPELLEE WAS DENIED DUE PROCESS OF LAW UNDER THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I SECTION 16 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT

IMPOSED CONSECUTIVE SENTENCES FOR BOTH KIDNAPPING CONVICTIONS.”

State’s Appeal

I.

{¶11} In its sole Assignment of Error, Appellant State of Ohio contends the trial

court erred in reconsidering the terms of appellee’s original sentence when it conducted

a PRC resentencing hearing. We agree.

{¶12} The Ohio Supreme Court has held that if a defendant is under a sentence

in which post-release control was not properly rendered, only the offending portion of

the sentence dealing with post-release control is subject to review and correction. See

State v. Fischer, 128 Ohio St.3d 92, 942 N.E.2d 332, 2010–Ohio–6238. The new

sentencing hearing to which the offender is entitled is limited to the issue of post-release

control. Id.

{¶13} Most recently, in a State’s appeal raising a similar issue of sentence

alteration in the context of a PRC resentencing, we applied Fischer and held that the

trial court was not authorized to reduce a defendant-appellee's original sentence in such

a situation. See State v. Ewers, Delaware App.No. 2011–CAA–05–0040, 2011-Ohio-

6540. Similarly, we have rejected the argument that a PRC resentencing requires a de

novo hearing. See State v. McPherson, Licking 10–CA–99, 2011-Ohio-1020.

Regardless of whether common law or R.C. 2929.191 applies, the mere lack of PRC

notice never entitles a defendant to a full de novo sentencing hearing. See State vs.

Davis, Washington App.No. 10 CA 9, 2011-Ohio-6776, ¶ 8. {¶14} In accordance with the foregoing case law precedent, the State’s sole

Assignment of Error is sustained.

Cross-Appeal

{¶15} In his sole Assignment of Error on cross-appeal, appellee contends the

trial court erred and denied him due process of law by ordering consecutive sentences

for both of the kidnapping convictions, which he maintains involved no separate animus.

{¶16} In State v. Franklin, Cuyahoga App.No. 95991, 2011-Ohio-4953, the

Eighth District Court of Appeals, in light of Fischer, supra, reiterated that the issue of

merger of allied offenses was barred by res judicata on a defendant's appeal from

resentencing to impose postrelease control because the issue did not arise from the

resentencing hearing. Id. at ¶ 11-12. See, also, State v. Hunter, Cuyahoga App. Nos.

95111, 95112, and 95113, 2011–Ohio–1682.

{¶17} We find the rationale of Franklin comports with the holding of Fischer by

properly restricting the confines of PRC resentencing. We therefore apply the holding in

Franklin to the circumstances of the case sub judice, and find appellee’s challenges to

his kidnapping convictions and sentences are presently barred. {¶18} Cross-Appellant's sole Assignment of Error is overruled.

{¶19} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Delaware County, Ohio, is hereby affirmed in part, reversed in part,

and remanded for correction of appellee’s sentence to seventeen years.

By: Wise, J.

Gwin, P. J., and Delaney, J., concur.

___________________________________

JUDGES IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : OSAMA J. OWEIS : : Defendant-Appellee : Case No. 11 CAA 06 0050

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed in part

and reversed in part.

Costs to be assessed to appellee.

JUDGES