[Cite as State v. Santiago, 2011-Ohio-3059.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95564
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANIBAL SANTIAGO
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-348400
BEFORE: Stewart, J., Kilbane, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: June 23, 2011 ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender
BY: John T. Martin Assistant Public Defender 310 Lakeside Avenue, Suite 400 Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Diane Smilanick Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶ 1} Defendant-appellant, Anibal Santiago, appeals his resentencing
by the Cuyahoga County Court of Common Pleas. Following review of the
record and for the reasons stated below, we affirm.
{¶ 2} In 1997, Santiago was indicted on two counts of aggravated
murder and one count of aggravated burglary. All counts included a
three-year firearm specification. Santiago pleaded not guilty and the case proceeded to trial. After the trial had commenced, Santiago changed his
mind and decided to plead guilty to amended counts of involuntary
manslaughter, felonious assault, and aggravated burglary. In the amended
indictment, only Count 1 included a firearm specification. The trial court
accepted Santiago’s plea and sentenced him to 13 years on Count 1, two years
on Count 2, and ten years on Count 3. The court ordered all terms served
consecutively for a total of 25 years in prison. Santiago did not appeal this
conviction.
{¶ 3} In 1998, Santiago filed a motion to withdraw his guilty plea. He
filed another motion to withdraw his plea in 1999. Both motions were
denied. In 2009, Santiago filed a motion for a new sentencing hearing
claiming that the 13-year sentence on Count 1 was illegal, the court failed to
properly impose postrelease control (PRC), and the court failed to merge
allied offenses. This motion was also denied. Santiago’s appeal of the trial
court’s order denying the motion was dismissed by this court as untimely filed
on February 2, 2010.
{¶ 4} On July 13, 2010, at the request of the Adult Parole Authority,
the trial court conducted a resentencing hearing. The court explained that
the purpose of the hearing was to correct an error in the original sentencing
entry that failed to differentiate between the prison term imposed for the
base charge of involuntary manslaughter and the term imposed for the firearm specification included with that charge. The court offered appellant
the opportunity to withdraw his plea or to go forward with resentencing.
Appellant opted for resentencing and asked the court to impose a lesser
sentence. He informed the court that he was a first time offender, had
agreed to plead guilty, and that his co-defendants had all received a less
severe sentence and been released. The court reiterated that the only
purpose of the hearing was to correct the error in the original sentencing
entry.
{¶ 5} The court proceeded to impose the same 25-year total sentence,
this time specifying that it consisted of ten years on the base charge in Count
1, three years on the firearm specification attached to Count 1, two years on
Count 2, and ten years on Count 3. The court also properly imposed a
mandatory term of five years postrelease control and advised Santiago of the
consequences for a violation of PRC.
{¶ 6} Santiago timely appeals from the July 16, 2010 judgment, raising
four errors for our review. Because the first two assignments of error are
substantially interrelated, we address them together.
{¶ 7} In his first assignment of error, Santiago argues that due to the
unnecessary delay in sentencing, the trial court lacked authority to sentence
him. He contends that because the court failed to impose postrelease control
in 1997, his original sentence is void. When a sentence is void, Santiago contends, it is as if it had never occurred. Therefore, he concludes, there is a
13-year delay between the time he entered his plea and the actual imposition
of sentence. He argues that such a delay in sentencing violates Crim.R.
32(A), which provides that: “[s]entence shall be imposed without
unnecessary delay.”
{¶ 8} In his second assignment of error, Santiago argues that because
his 1997 sentence is void and a nullity, he is entitled to a de novo sentencing
that includes the consideration of a lesser sentence.
{¶ 9} The argument that there was an unnecessary delay in sentencing
is without merit. This court has rejected the same argument in State v.
King, 8th Dist. No. 95233, 2011-Ohio-1079, where we stated, “[t]he
circumstances here do not implicate Crim.R. 32(A) as this is not a case where
the trial court refused to sentence [the defendant]. Where there is a delay
between the sentence and a resentencing occasioned by the failure to include
a required term of postrelease control in the original entry, such matter
involves the correction of a void sentence and not a delay in imposing the
original sentence.” Id. at ¶2 citing to, State v. Jaffal, Cuyahoga App. No.
93142, 2010-Ohio-4999. See, also, State v. Mundy, 9th Dist. No.
10CA0039-M, 2011-Ohio-1157.
{¶ 10} Additionally, the Ohio Supreme Court’s recent holding in State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, governs this case. In Fischer, the court held that “when a judge fails to impose statutorily
mandated postrelease control as part of a defendant’s sentence, that part of
the sentence is void and must be set aside.” Id. at ¶25. “[O]nly the
offending portion of the sentence is subject to review and correction.” Id. at
¶27. “[T]he new sentencing hearing to which an offender is entitled [for
failure to properly include postrelease control] is limited to proper imposition
of postrelease control.” Id. at ¶29.
{¶ 11} Pursuant to Fischer, “the postrelease control component of the
sentence is fully capable of being separated from the rest of the sentence as
an independent component, and the limited resentencing must cover only the
postrelease control. * * * The remainder of the sentence, which the
defendant did not successfully challenge, remains valid under the principles
of res judicata.” Fischer, ¶17 (quoting State v. Bezak, 114 Ohio St.3d 94,
2007-Ohio-3250, 868 N.E.2d 961, ¶22 (O’Connor, J., dissenting, joined by
Lundberg Stratton, J.)).
{¶ 12} Applying the holding in Fischer to the facts of the instant case, we
find that because the 1997 sentencing entry did not include the statutorily
mandated term of postrelease control, that part of the sentence was void and
needed to be corrected. The entire sentence, however, is not a nullity and a
de novo sentencing was not warranted. Instead, the court was required to
conduct a limited resentencing to correct the postrelease control error. The remainder of the 1997 sentence, which Santiago did not appeal, remains
valid. Accordingly, the first and second assignments of error are overruled.
{¶ 13} In his third assignment of error, Santiago challenges his
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[Cite as State v. Santiago, 2011-Ohio-3059.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95564
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANIBAL SANTIAGO
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-348400
BEFORE: Stewart, J., Kilbane, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: June 23, 2011 ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender
BY: John T. Martin Assistant Public Defender 310 Lakeside Avenue, Suite 400 Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Diane Smilanick Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶ 1} Defendant-appellant, Anibal Santiago, appeals his resentencing
by the Cuyahoga County Court of Common Pleas. Following review of the
record and for the reasons stated below, we affirm.
{¶ 2} In 1997, Santiago was indicted on two counts of aggravated
murder and one count of aggravated burglary. All counts included a
three-year firearm specification. Santiago pleaded not guilty and the case proceeded to trial. After the trial had commenced, Santiago changed his
mind and decided to plead guilty to amended counts of involuntary
manslaughter, felonious assault, and aggravated burglary. In the amended
indictment, only Count 1 included a firearm specification. The trial court
accepted Santiago’s plea and sentenced him to 13 years on Count 1, two years
on Count 2, and ten years on Count 3. The court ordered all terms served
consecutively for a total of 25 years in prison. Santiago did not appeal this
conviction.
{¶ 3} In 1998, Santiago filed a motion to withdraw his guilty plea. He
filed another motion to withdraw his plea in 1999. Both motions were
denied. In 2009, Santiago filed a motion for a new sentencing hearing
claiming that the 13-year sentence on Count 1 was illegal, the court failed to
properly impose postrelease control (PRC), and the court failed to merge
allied offenses. This motion was also denied. Santiago’s appeal of the trial
court’s order denying the motion was dismissed by this court as untimely filed
on February 2, 2010.
{¶ 4} On July 13, 2010, at the request of the Adult Parole Authority,
the trial court conducted a resentencing hearing. The court explained that
the purpose of the hearing was to correct an error in the original sentencing
entry that failed to differentiate between the prison term imposed for the
base charge of involuntary manslaughter and the term imposed for the firearm specification included with that charge. The court offered appellant
the opportunity to withdraw his plea or to go forward with resentencing.
Appellant opted for resentencing and asked the court to impose a lesser
sentence. He informed the court that he was a first time offender, had
agreed to plead guilty, and that his co-defendants had all received a less
severe sentence and been released. The court reiterated that the only
purpose of the hearing was to correct the error in the original sentencing
entry.
{¶ 5} The court proceeded to impose the same 25-year total sentence,
this time specifying that it consisted of ten years on the base charge in Count
1, three years on the firearm specification attached to Count 1, two years on
Count 2, and ten years on Count 3. The court also properly imposed a
mandatory term of five years postrelease control and advised Santiago of the
consequences for a violation of PRC.
{¶ 6} Santiago timely appeals from the July 16, 2010 judgment, raising
four errors for our review. Because the first two assignments of error are
substantially interrelated, we address them together.
{¶ 7} In his first assignment of error, Santiago argues that due to the
unnecessary delay in sentencing, the trial court lacked authority to sentence
him. He contends that because the court failed to impose postrelease control
in 1997, his original sentence is void. When a sentence is void, Santiago contends, it is as if it had never occurred. Therefore, he concludes, there is a
13-year delay between the time he entered his plea and the actual imposition
of sentence. He argues that such a delay in sentencing violates Crim.R.
32(A), which provides that: “[s]entence shall be imposed without
unnecessary delay.”
{¶ 8} In his second assignment of error, Santiago argues that because
his 1997 sentence is void and a nullity, he is entitled to a de novo sentencing
that includes the consideration of a lesser sentence.
{¶ 9} The argument that there was an unnecessary delay in sentencing
is without merit. This court has rejected the same argument in State v.
King, 8th Dist. No. 95233, 2011-Ohio-1079, where we stated, “[t]he
circumstances here do not implicate Crim.R. 32(A) as this is not a case where
the trial court refused to sentence [the defendant]. Where there is a delay
between the sentence and a resentencing occasioned by the failure to include
a required term of postrelease control in the original entry, such matter
involves the correction of a void sentence and not a delay in imposing the
original sentence.” Id. at ¶2 citing to, State v. Jaffal, Cuyahoga App. No.
93142, 2010-Ohio-4999. See, also, State v. Mundy, 9th Dist. No.
10CA0039-M, 2011-Ohio-1157.
{¶ 10} Additionally, the Ohio Supreme Court’s recent holding in State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, governs this case. In Fischer, the court held that “when a judge fails to impose statutorily
mandated postrelease control as part of a defendant’s sentence, that part of
the sentence is void and must be set aside.” Id. at ¶25. “[O]nly the
offending portion of the sentence is subject to review and correction.” Id. at
¶27. “[T]he new sentencing hearing to which an offender is entitled [for
failure to properly include postrelease control] is limited to proper imposition
of postrelease control.” Id. at ¶29.
{¶ 11} Pursuant to Fischer, “the postrelease control component of the
sentence is fully capable of being separated from the rest of the sentence as
an independent component, and the limited resentencing must cover only the
postrelease control. * * * The remainder of the sentence, which the
defendant did not successfully challenge, remains valid under the principles
of res judicata.” Fischer, ¶17 (quoting State v. Bezak, 114 Ohio St.3d 94,
2007-Ohio-3250, 868 N.E.2d 961, ¶22 (O’Connor, J., dissenting, joined by
Lundberg Stratton, J.)).
{¶ 12} Applying the holding in Fischer to the facts of the instant case, we
find that because the 1997 sentencing entry did not include the statutorily
mandated term of postrelease control, that part of the sentence was void and
needed to be corrected. The entire sentence, however, is not a nullity and a
de novo sentencing was not warranted. Instead, the court was required to
conduct a limited resentencing to correct the postrelease control error. The remainder of the 1997 sentence, which Santiago did not appeal, remains
valid. Accordingly, the first and second assignments of error are overruled.
{¶ 13} In his third assignment of error, Santiago challenges his
convictions and argues that the trial court erred by not considering whether
the counts of conviction were allied offenses of similar import subject to
merger. He contends that because the offenses were potentially allied, the
court should have held a hearing on the issue before imposing sentence.
{¶ 14} This argument is barred by the doctrine of res judicata. Under
the doctrine, “a final judgment of conviction bars the convicted defendant
from raising and litigating in any proceeding, except an appeal from that
judgment, any defense or any claimed lack of due process that was raised or
could have been raised by the defendant at the trial which resulted in that
judgment of conviction or on an appeal from that judgment.” State v. Perry
(1967), 10 Ohio St.2d 175, 180, 226 N.E.2d 104.
{¶ 15} As noted above, Santiago’s 1997 conviction is valid except as to
postrelease control. Santiago could have, but did not, raise the issue of
potentially allied offenses through a direct appeal of his conviction. Having
failed to do so, res judicata now bars him from raising the issue in this
appeal. The third assignment of error is overruled.
{¶ 16} In his fourth assignment of error, Santiago argues that the trial
court erred in imposing consecutive sentences without making the specific judicial findings required by R.C. 2929.14(E)(4). Santiago acknowledges that
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, held that
such findings were no longer required. However, he argues that the Foster
remedy of excising sentencing sections that require findings is no longer
necessary as a result of the United States Supreme Court’s decision in Oregon
v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, which held that
judicial fact-finding with respect to consecutive terms of imprisonment does
not violate the Sixth Amendment. Santiago contends that the judicial
findings mandated by R.C. 2929.14(E) are still operative and absent such
findings his consecutive sentences must be vacated.
{¶ 17} The Ohio Supreme Court has rejected this argument. State v.
Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768. In Hodge, the
court held that, “[a]fter Ice, it is now settled law * * * that the jury-trial
guarantee of the Sixth Amendment to the United States Constitution does
not preclude states from requiring trial court judges to engage in judicial
fact-finding prior to imposing consecutive sentences.” Id. at ¶19. However,
the court went on to hold that the decision in Ice “does not revive Ohio’s
former consecutive-sentencing statutory provisions * * * which were held
unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470.” Hodge at paragraph two of the syllabus. Accordingly,
appellant’s fourth assignment of error is overruled. 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, JUDGE
MARY EILEEN KILBANE, A.J., and MARY J. BOYLE, J., CONCUR