[Cite as State v. Sealey, 2017-Ohio-338.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2016-L-034 - vs - :
ELLIS L. SEALEY, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 01 CR 000616.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Ellis L. Sealey, pro se, PID: A431-327, Mansfield Correctional Institution, P.O. Box 788, 1150 North Main Street, Mansfield, OH 44901 (Defendant-Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Appellant, Ellis L. Sealey, appeals from the March 17, 2016 judgment of
the Lake County Court of Common Pleas, denying his pro se motion for “‘Sentencing’”
and for “‘Vacation of Non-Cognizable Offenses,’” in addition to various other motions. In
the appealed judgment, in addition to denying appellant’s various pro se motions, the
court also held that the June 10, 2002 sentencing entry improperly noted the terms of appellant’s post-release control. The March 17, 2016 entry stated, “the defendant must
be resentenced to serve a mandatory term of five years of post release control upon his
release from prison, not three years.” As a result, the court conducted a hearing via
video conference to correct appellant’s sentencing entry to reflect that he is to serve a
mandatory term of five years of post-release control upon his release from prison.1 For
the reasons stated, we affirm.
{¶2} On December 28, 2001, appellant was indicted by the Lake County Grand
Jury on five counts of attempted murder, felonies of the first degree, in violation of R.C.
2923.02 and R.C. 2903.02 with firearm specifications in violation of R.C. 2941.145 and
R.C. 2941.146; and five counts of felonious assault, felonies of the second degree, in
violation of R.C. 2903.11(A)(2) with firearm specifications in violation of R.C. 2941.145
and R.C. 2941.146. Appellant filed a waiver of his right to be present at the arraignment
and the trial court entered a not guilty plea on his behalf.
1. The hearing to correct post-release control was held on April 26, 2016. On May 3, 2016, the trial court issued a judgment correcting post-release control, detailing, inter alia, “that post release control is mandatory in this case for a period of five years, as well as the consequences for violating conditions of post release control imposed by the Parole Board under Revised Code section 2967.28.” As a result of the March 17, 2016 order, appellant’s notice of appeal of April 8, 2016 will be considered by this court as a premature appeal as of May 3, 2016 pursuant to App.R. 4(C). We further note that “R.C. 2929.191(C) permits trial courts to conduct re-sentencing hearings by video conference. However, Crim.R. 43(A) requires a waiver of a defendant’s right to be physically present in felony proceedings before a court can permit his participation by video conference. In the event of a conflict between a statute and a criminal rule involving a procedural matter, the rule prevails. State ex rel. Silcott v. Spahr, 50 Ohio St.3d 110 * * * (1990). As a result, some Ohio Appellate Districts have held that, pursuant to Crim.R. 43(A), it is error to hold a re-sentencing via video conference without a waiver. See, e.g., State v. Morton, 10th Dist. No. 10AP-562, 2011-Ohio-1488, ¶13-14, 18; State v. Steimle, 8th Dist. No. 95076, 2011-Ohio-1071, ¶16-17. However, these courts have also held that such error is harmless without a showing of prejudice. Morton, supra; Steimle, supra.” (Parallel citations omitted.) State v. Dudas, 11th Dist. Lake No. 2011-L-094, 2012-Ohio-2122, ¶25. In this case, appellant has not specifically raised on appeal any argument regarding the hearing via video conference and/or that the outcome of the resentencing would have been different if he had been physically present. Accordingly, any error by the trial court in holding the resentencing via video conference without a waiver was harmless. Dudas at ¶26.
2 {¶3} A jury trial commenced on June 3, 2002. Two days later, the jury returned
guilty verdicts on all counts.
{¶4} On June 10, 2002, the trial court sentenced appellant to ten years each on
counts one, three, five, seven, and nine (attempted murder). Counts three, five, seven,
and nine were ordered to be served concurrently with each other and consecutively to
count one. Counts two, four, six, eight, and ten (felonious assault) merged into counts
one, three, five, seven, and nine, respectively. Appellant was also required to serve an
additional three years as a mandatory prison term for the first firearm specification on
count one and five years as a mandatory prison term for the second firearm
specification on count one, which were to be served consecutive to each other and prior
to and consecutive to the foregoing prison term. Thus, appellant was sentenced to a
total period of incarceration of 28 years. In addition, the trial court imposed mandatory
post-release control for “up to a maximum of 5 years.”2
{¶5} Appellant timely appealed, Case No. 2002-L-100, raising issues involving
the calling of his brother as a court’s witness, sufficiency of the evidence, manifest
weight of the evidence, sentencing, and ineffective assistance of counsel. On
December 5, 2003, this court affirmed appellant’s conviction and sentence. State v.
Sealey, 11th Dist. Lake No. 2002-L-100, 2003-Ohio-6697.
2. The sentencing entry incorrectly states that post-release control is mandatory for “up to a maximum of 5 years.” Such language has been found to connote that the period is discretionary, not mandatory. See State v. Young, 11th Dist. Trumbull No. 2009-T-0130, 2011-Ohio-4018, ¶89.
3 {¶6} Seven years later, on December 23, 2010, appellant filed a pro se motion
for relief from judgment pursuant to Civ.R. 60(B). The state filed a response opposing
the motion on January 24, 2011. On February 4, 2011, the trial court denied appellant’s
motion.
{¶7} Over four years later, on November 19, 2015, appellant filed a pro se
motion for “‘Sentencing’” and for “‘Vacation of Non-Cognizable Offenses,’” in addition to
various other motions. On March 17, 2016, the trial court denied the motions.
However, the court held that the June 10, 2002 sentencing entry improperly noted the
terms of appellant’s post-release control. As a result, the court conducted a hearing via
video conference to correct appellant’s sentencing entry to reflect that he is to serve a
mandatory term of five years of post-release control upon his release from prison.
Appellant filed the instant pro se appeal and asserts the following three assignments of
error:
{¶8} “[1.] Whether, and pursuant to the clear and unambiguous language of
State v. Singleton, 124 Ohio St.3d 173, at: ¶1; State v. Bezak, 114 Ohio St.3d 94; and,
Hernandez v. Kelly, 108 Ohio St.3d 395, at: ¶23, the trial court was/is prohibited from a
*retroactive application of the *new judicial ruling in: State v. Fischer, 128 Ohio St.3d 92;
and, an ex post facto application of: O.R.C. 2929.191, eff. 7/11/2006, with respect to the
correction of a facially flawed postrelease control notification. see: Duncan v. Missouri
(1894), 152 U.S. 377; and, Rogers v. Tennessee (2001), 532 U.S. 451.
{¶9} “[2.] Whether, and in imposing a term of mandatory postrelease control
where the defendant has fully completed one or more of the underlying offenses, the
discretion as per which of the underlying sentences which has been fully completed lies
4 with the defendant. see: State v. Powell, 2014 Ohio App. LEXIS 3771 (2nd Dist.), at:
(*P28) quoting: State v. Ford, 2014 Ohio App. LEXIS 1820, at: ¶21; State v. Kish, 2014
Ohio App. LEXIS 684 (8th Dist.), at: HN2; State v. Cvijetinovic, Slip Opinion (2013),
2013 WL 6175196 (8th Dist.); and, State v. Holdcroft, 137 Ohio St.3d 526, at: (6); and,
(7) (‘Once a valid sentence has been served, it is not res judicata that acts as a bar to
modification; rather, the court has lost jurisdiction to modify the sentence). id.
{¶10} “[3.] Whether appellant’s conviction for ‘attempted murder,’ pursuant to
O.R.C. 2903.02(B) is ‘contrary to law,’ hence, constituting a fundamental miscarriage of
justice.”
{¶11} In his first assignment of error, appellant argues the trial court erred in not
providing him a de novo sentencing hearing due to the post-release control error.
{¶12} By way of background, this court in State v. Young, 11th Dist. Portage No.
2015-P-0087, 2016-Ohio-5006, ¶9-11, recently stated the following regarding post-
release control in light of the Ohio Supreme Court’s 2010 decision in Fischer, supra:
{¶13} “‘(A) trial court must provide statutorily compliant notification to a
defendant regarding postrelease control at the time of sentencing, including notifying
the defendant of the details of the postrelease control and the consequences of violating
postrelease control.’ State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶18 * * *.
Further, ‘a trial court must incorporate into the sentencing entry the postrelease-control
notice to reflect the notification that was given at the sentencing hearing.’ Id. at ¶19.
When a judge failed to properly impose statutorily mandated post-release control prior
to July 11, 2006, that part of the sentence is void and must be set aside. State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶26 * * *; State v. Shepherd, 11th Dist.
5 Ashtabula No. 2010-A-0052, 2011-Ohio-2451, ¶20. Such a sentence ‘is not precluded
from appellate review by principles of res judicata, and may be reviewed at any time, on
direct appeal or by collateral attack.’ Fischer, supra, at paragraph one of the syllabus;
see also State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, ¶7 * * *.
{¶14} “Pursuant to R.C. 2953.08(G)(2)(b), when a sentence is contrary to law, a
reviewing court, inter alia, ‘may vacate the sentence and remand the matter to the
sentencing court for resentencing.’ When the post-release control portion of a sentence
is vacated, the resentencing to which an offender is entitled is limited to proper
imposition of post-release control. Fischer, supra, at paragraph two of the syllabus,
modifying State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, * * *, syllabus.
{¶15} “‘(W)hen a defendant is notified about postrelease control at the
sentencing hearing, but notification is inadvertently omitted from the sentencing entry,
the omission can be corrected with a nunc pro tunc entry and the defendant is not
entitled to a new sentencing hearing.’ Qualls, supra, at ¶30. On the other hand, when a
defendant is not properly notified about post-release control at the sentencing hearing,
regardless of what is stated in the sentencing entry, the defendant is entitled to a
correction to the sentencing judgment after a limited hearing is held for that purpose.
R.C. 2929.191; see also State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, * * *,
paragraph one of the syllabus. Neither of these options is available, however, after the
defendant has ‘completed the prison term for the offense for which postrelease control
was to be imposed’; in that circumstance, post-release control can no longer be
imposed. Qualls, supra, at ¶16, ¶24.” (Emphasis sic.) (Parallel citations omitted.)
6 {¶16} As stated, appellant was sentenced in 2002 to a total of 28 years in prison
on five counts of attempted murder and five counts of felonious assault with firearm
specifications. As part of that sentence, post-release control is mandatory for a period
of five years. However, the trial court imposed post-release control for up to a
maximum of five years. Appellant did not raise any issue regarding post-release control
in his direct appeal. Rather, appellant filed various pro se motions in 2015 raising, inter
alia, the trial court’s error in imposing the correct post-release control.
{¶17} On March 17, 2016, the trial court held that the June 10, 2002 sentencing
entry improperly noted the terms of appellant’s post-release control. As a result, the
court conducted a hearing via video conference on April 26, 2016. At the hearing,
appellant was not afforded a de novo sentencing. Rather, the court held the hearing to
specifically correct appellant’s sentencing entry to reflect that he is to serve a mandatory
term of five years of post-release control upon his release from prison. On May 3, 2016,
the trial court issued a judgment correcting post-release control, detailing “that post
release control is mandatory in this case for a period of five years, as well as the
consequences for violating conditions of post release control imposed by the Parole
Board under Revised Code section 2967.28.”
{¶18} Appellant now argues he was entitled to a de novo sentencing hearing
due to the post-release control error. Appellant bases his argument on cases that
preceded Fischer on the issue of post-release control notification and maintains that
Fischer should not apply retroactively to his case. Appellant’s assertions, however, are
not well-taken.
7 {¶19} This court was faced with a similar matter in State v. Sanders, 11th Dist.
Portage No. 2011-P-0088, 2012-Ohio-5025. In that case, Mr. Sanders was indicted in
2004. Id. at ¶2. The trial court sentenced him to 15 years in prison and imposed post-
release control. Id. at ¶2, 7. Mr. Sanders filed a direct appeal which we affirmed. State
v. Sanders, 11th Dist. Portage No. 2004-P-0094, 2005-Ohio-4778. Thereafter, Mr.
Sanders filed various pro se motions with the trial court, including a petition for
postconviction relief, which was dismissed. Sanders, 2012-Ohio-5025, ¶4. Mr. Sanders
filed a second appeal alleging an issue with his post-release control and requesting this
court to remand the matter to the trial court for a “‘new’” de novo sentencing hearing. Id.
at ¶7. This court agreed that the trial court made a mistake regarding post-release
control. Id. However, this court held that Mr. Sanders was not entitled to a de novo
sentencing hearing, but rather to a hearing limited strictly to proper imposition of post-
release control. Id. This court further stated that Mr. Sanders’ request for a de novo
sentencing hearing was misplaced pursuant to Fischer. Id. at ¶11.
{¶20} Like Sanders, appellant’s argument in the case at bar is also misplaced as
Fischer abrogates an offender’s entitlement to a de novo sentencing hearing. Sanders,
2012-Ohio-5025, ¶15. The Fischer 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.” (Emphasis sic.) Id. at ¶26. In that
case, the proper remedy is to resentence the defendant. Id. at ¶10. However, “the new
sentencing hearing to which an offender is entitled * * * is limited to proper imposition of
postrelease control.” Id. at ¶29.
8 {¶21} Therefore, the only part of the sentence that is void and subject to
resentencing is the portion that fails to comply with the requirements of the post-release
control statutes. Sanders, 2012-Ohio-5025, ¶12. Thus, appellant was not entitled to a
de novo sentencing hearing. The trial court committed no error at appellant’s April 26,
2016 resentencing.
{¶22} Appellant’s first assignment of error is without merit.
{¶23} In his second assignment of error, appellant contends he has already
completed the sentences imposed for felonious assault and the relating firearm
specifications and, therefore, mandatory post-release control should not have been
ordered on those charges at the resentencing.
{¶24} R.C. 2929.14(C)(1)(a) states:
{¶25} “Subject to division (C)(1)(b) of this section, if a mandatory prison term is
imposed upon an offender pursuant to division (B)(1)(a) of this section for having a
firearm on or about the offender’s person or under the offender’s control while
committing a felony, if a mandatory prison term is imposed upon an offender pursuant to
division (B)(1)(c) of this section for committing a felony specified in that division by
discharging a firearm from a motor vehicle, or if both types of mandatory prison terms
are imposed, the offender shall serve any mandatory prison term imposed under either
division consecutively to any other mandatory prison term imposed under either division
or under division (B)(1)(d) of this section, consecutively to and prior to any prison term
imposed for the underlying felony pursuant to division (A), (B)(2), or (B)(3) of this
section or any other section of the Revised Code, and consecutively to any other prison
term or mandatory prison term previously or subsequently imposed upon the offender.”
9 {¶26} In support of his position, appellant relies on, inter alia, a decision from our
sister court in State v. Kish, 8th Dist. Cuyahoga No. 99895, 2014-Ohio-699, for the
proposition that this case must be remanded for further fact finding because it is unclear
which prison term he is serving. Appellant’s reliance on Kish is misplaced. Unlike the
appellant in this case, Mr. Kish was found guilty in two separate cases. Id. at ¶2. It was
unclear as to which of the two sentences in the two different cases were already served.
Id. at ¶3. Thus, the Eighth District remanded the matter back to the trial court to
conduct a hearing to determine the sequence of Mr. Kish’s sentences and then impose
post-release control on his remaining unserved sentence. Id. at ¶13. The sequence of
appellant’s sentences in the case sub judice, however, is clear.
{¶27} Again, on June 10, 2002, the trial court sentenced appellant to ten years
each on counts one, three, five, seven, and nine (attempted murder). Counts three,
five, seven, and nine were ordered to be served concurrently with each other and
consecutively to count one. Counts two, four, six, eight, and ten (felonious assault)
merged into counts one, three, five, seven, and nine, respectively. Appellant was also
required to serve an additional three years as a mandatory prison term for the first
firearm specification on count one and five years as a mandatory prison term for the
second firearm specification on count one, which were to be served consecutive to each
other and prior to and consecutive to the foregoing prison term. Thus, appellant was
sentenced to a total period of incarceration of 28 years which included eight years of
mandatory firearm specifications.
10 {¶28} Because firearm specifications are a mandatory prison sentence that must
be served prior to and consecutive to other prison terms, pursuant to R.C.
2929.14(C)(1)(a), appellant served the eight-year firearm specifications portion of his
sentence from 2002 to 2010. Since appellant’s felonious assault counts merged with
first-degree attempted murder, he has been serving the remainder of his sentence for
attempted murder which requires five years of mandatory post-release control. See
R.C. 2967.28(B)(1) (a period of post-release control for a felony of the first degree shall
be five years).
{¶29} Accordingly, the trial court properly imposed a mandatory five-year term of
post-release control at the resentencing as appellant is currently serving a sentence for
first-degree attempted murder.
{¶30} Appellant’s second assignment of error is without merit.
{¶31} In his third assignment of error, appellant alleges that his conviction for
attempted murder should be vacated because it is void.
{¶32} [Removed 2 paragraphs]
{¶33} “A void sentence ‘is not precluded from appellate review by principles of
res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.’”
State v. Britta, 11th Dist. Lake No. 2011-L-041, 2011-Ohio-6096, ¶14, quoting State v.
Fischer, supra at paragraph one of the syllabus.
{¶34} Appellant cites to State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800 for
the proposition that his conviction for attempted murder is void and must be vacated.
Appellant’s reliance on Nolan is misplaced. In Nolan, the Ohio Supreme Court held that
attempted felony murder in violation of R.C. 2903.02(B) is not a cognizable crime in
11 Ohio. Id. at ¶10. As a result, a conviction of attempted felony murder is void. State v.
Bozek, 11th Dist. Portage No. 2015-P-0018, 2016-Ohio-1305, ¶21. However, in this
case, appellant was not convicted of attempted felony murder. Rather, appellant was
convicted of attempted murder in violation of R.C. 2923.02(E)(1).
{¶35} Appellant’s third assignment of error is without merit.
{¶36} For the foregoing reasons, appellant’s assignments of error are not well-
taken. The judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, P.J.,
TIMOTHY P. CANNON, J.,
concur.