State v. Seals

2012 Ohio 509

Opinion

[Cite as State v. Seals, 2012-Ohio-509.]

IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2010CA117

vs. : T.C. CASE NO. 08CR0828A

JONATHAN SEALS :

Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 10th day of February, 2012.

Andrew Wilson, Pros. Attorney; Andrew R. Picek, Asst. Pros. Attorney, Atty. Reg. No. 0082121, 50 East Columbia Street, 4th Floor, Springfield, OH 45502 Attorneys for Plaintiff-Appellee

Brock A. Schoenlein, Atty. Reg. No. 0084707, 15 West Fourth Street, Suite 100, Dayton, OH 45402 Attorney for Defendant-Appellant

GRADY, P.J.:

{¶ 1} Defendant, Jonathan Seals, was found guilty following

a jury trial of aggravated murder, murder, felony murder, tampering

with evidence, and felonious assault. The trial court sentenced

Defendant to thirty-three years to life in prison, and indicated

that with respect to the tampering with evidence offense, Defendant 2

would be subject to five years of mandatory postrelease control.

{¶ 2} On direct appeal we affirmed Defendant’s convictions

but vacated his sentence due to an error in the imposition of

postrelease control. We remanded the matter for resentencing for

the trial court to properly inform Defendant that with respect

to his conviction for tampering with evidence, a third degree

felony, he is subject to an optional three year term of postrelease

control under R.C. 2967.28(C), not a mandatory five year term as

originally stated by the court. State v. Seals, 2nd Dist Clark

No. 2009CA4, 2010-Ohio-2843.

{¶ 3} On November 22, 2010, on remand from this court, the

trial court conducted a resentencing hearing that was limited to

the proper imposition of postrelease control on the tampering with

evidence charge. Defendant did not object to the limited scope

of the resentencing hearing.

{¶ 4} Defendant timely appealed to this court from his

resentencing hearing. Defendant’s appellate counsel has filed

an Anders brief, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,

19 L.Ed.2d 493 (1967), stating that he could find no meritorious

issues for appellate review. We notified Defendant of his

appellate counsel’s representations and afforded him ample time

to file a pro se brief. None has been received. This case is

now before us for our independent review of the record. Penson 3

v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

{¶ 5} Defendant’s appellate counsel has identified one

possible issue for appeal, which states:

{¶ 6} “THE TRIAL COURT MAY HAVE ERRED IN FAILING TO RESENTENCE

MR. SEALS DE NOVO.”

{¶ 7} Defendant argues that he was entitled to a de novo

resentencing hearing to correct the trial court’s error in failing

to properly impose postrelease control. That claim lacks arguable

merit.

{¶ 8} R.C. 2929.191, effective July 11, 2006, proscribes a

procedure for trial courts to follow to remedy a sentence that

fails to properly impose postrelease control. The hearing

contemplated by R.C. 2929.191(C) and the correction contemplated

by R.C. 2929.191(A) and (B) pertain only to the flawed imposition

of postrelease control and do not address the remainder of an

offender’s sentence. That demonstrates the General Assembly’s

intent to leave undisturbed any other sanctions imposed that are

unaffected by the court’s failure to properly impose postrelease

control at the sentencing hearing. State v. Singleton, 124 Ohio

St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 24. In deciding

whether R.C. 2929.191 would apply retroactively or prospectively

only, the Supreme Court stated in its syllabus in Singleton:

1. For criminal sentences imposed prior to July 4

11, 2006, in which a trial court failed to properly impose

postrelease control, trial courts shall conduct a de

novo sentencing hearing in accordance with decisions

of the Supreme Court of Ohio.

2. For criminal sentences imposed on and after July

postrelease control, trial courts shall apply the

procedures set forth in R.C. 2929.191.

In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942

N.E.2d 332, the Ohio Supreme Court held that in cases where the

sentence omits a statutorily mandated term of postrelease control,

or contains an erroneous provision in that regard, only that part

of the sentence is void and must be corrected, and the remainder

of the sentence remains valid. Therefore, a complete de novo

resentencing is not required. Rather, the resentencing is limited

to correcting the defect in the postrelease control. Id., at ¶

17. This court has held likewise. State v. Jenkins, 2nd Dist.

Montgomery No. 24117, 2011-Ohio-634, ¶ 7-8.

{¶ 9} Defendant was originally sentenced on or about January

9, 2009, after the enactment of R.C. 2929.191. Defendant was

resentenced on November 22, 2010, pursuant to R.C. 2929.191, to

correct a defect in the imposition of postrelease control. The

prevailing law in effect at that time was State v. Singleton, and 5

pursuant to that decision Defendant is clearly not entitled to

a de novo resentencing hearing to correct an error in the trial

court’s imposition of postrelease control. Id., at syllabus and

¶ 24. Accord: State v. Fischer. Rather, the resentencing

hearing was properly limited to correcting the defect in

postrelease control. R.C. 2929,191; Singleton. Accord: Fischer.

This assignment of error lacks arguable merit.

{¶ 10} In addition to reviewing the possible issues for appeal

raised by Defendant’s appellate counsel, we have conducted an

independent review of the trial court’s proceedings and have found

no error having arguable merit. Accordingly, Defendant’s appeal

is without merit and the judgment of the trial court will be

affirmed.

FROELICH, J., And HALL, J., concur.

Copies mailed to:

Andrew R. Picek, Esq. Brock A. Schoenlein, Esq. Jonathan Seals Hon. Richard J. O’Neill