State v. Shearer

2019 Ohio 1352

• Court: Ohio Court of Appeals
• Decided: April 11, 2019
• Docket: 107335
• Status: Published

Opinion

[Cite as State v. Shearer, 2019-Ohio-1352.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 107335

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

LANDRA SHEARER

DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND VACATED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-08-510282-A

BEFORE: S. Gallagher, P.J., Laster Mays, J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: April 11, 2019 ATTORNEYS FOR APPELLANT

Mark A. Stanton Cuyahoga County Public Defender By: John T. Martin Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor By: Katherine Mullin Assistant Prosecuting Attorney Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113

SEAN C. GALLAGHER, P.J.:

{¶1} Landra Shearer has sought to correct his void sentences for almost a decade, which

includes filing at least three appeals and no less than 11 postconviction motions. For the most

part, Shearer attempted this task without the assistance of legal counsel. Instead of exhausting

his appellate rights after his motions or appeals were disposed of, Shearer filed additional

postconviction motions with the trial court, tweaking his argument along the way. Despite this

procedural history, and based on the following rationale, we vacate the sentences imposed on the

attempted murder and felonious assault counts based on State v. Shearer, 8th Dist. Cuyahoga No.

92974, 2010-Ohio-1666, ¶ 31 (“Shearer I”) and State v. Williams, 148 Ohio St.3d 403,

2016-Ohio-7658, 71 N.E.3d 234 (sentences imposed on allied offenses are void and subject to collateral attack at any time), and remand for a de novo resentencing after the state elects upon

which count to proceed.

{¶2} In Shearer I, the panel, sua sponte, concluded that Shearer’s convictions for

attempted murder and two counts of felonious assault were in error because felonious assault is

an allied offense of attempted murder. Id. citing State v. Williams, 124 Ohio St.3d 381,

2010-Ohio-147, 922 N.E.2d 937. The three counts were reversed as being allied offenses of

similar import. Id. (the record indicates that Shearer shot the sole victim twice in quick

succession and was charged with three offenses from that one act). The state did not seek

further review of that determination. Upon remand, the trial court imposed a new aggregate

term of imprisonment of 13 years, but only merged one of the felonious assault offenses into the

attempted murder. A separate sentence was consecutively imposed for the other felonious

assault offense. Thus, the sentences imposed on the attempted murder and felonious assault

offenses that became final upon the remand are still void — the trial court imposed sentences on

the offenses deemed to be allied ones of similar import. Williams, 148 Ohio St.3d 403,

2016-Ohio-7658, 71 N.E.3d 234, at ¶ 22.

{¶3} In Williams, the offender had filed numerous postconviction motions attempting to

vacate a void sentence. The trial court had imposed separate, but concurrent, sentences on

offenses deemed to be allied. Despite the failure to timely exhaust appellate review, the

offender maintained that res judicata did not preclude several attempts to remedy the sentence —

in essence, if an offender’s sentence is void, the matter is never settled and the offender may

continually challenge that sentence until a sentence that is authorized by law is imposed. The

Ohio Supreme Court agreed and vacated the sentence imposed on the count deemed to be an

allied offense. Id. at ¶ 28. {¶4} A trial court has no authority to impose sentences for offenses that are deemed to be

allied under R.C. 2941.25. Id. According to Williams, it is of no consequence that an offender

unsuccessfully attempts to remedy these void sentences on numerous occasions without

exhausting all appellate rights. Id. at ¶ 73 (Kennedy, J., dissenting) (noting the extensive history

of postconviction proceedings that ended unsuccessfully predating the majority’s decision to

vacate the concurrent sentence imposed on the allied offense). A void sentence is subject to

collateral attack “at any time,” and the doctrine of res judicata does not preclude any review.1

Id. at ¶ 22. If offenses are deemed to be allied under R.C. 2941.25, no court has authority to

impose separate sentences on those offenses. Id. The trial court in this case erred when

imposing separate sentences on the attempted murder and felonious assault counts, along with

the firearm specifications attendant to each, deemed to be allied offenses of similar import.

{¶5} The consecutive sentences imposed on the attempted murder and felonious assault

counts are in violation of R.C. 2941.25 as declared in Shearer I. Id. The state claims that the

Shearer I decision only addressed the felonious assault counts, and therefore, the resulting

sentence is not void under Williams at ¶ 24, but merely voidable. In Shearer I, the panel

concluded that felonious assault is an allied offense of attempted murder. Shearer I at ¶ 31-32.

The state’s interpretation — that only one of the felonious counts merged with the attempted

murder — is incorrect. Had Shearer I intended to reverse only one felonious assault count as

being allied with the attempted murder count, it would have done so and affirmed the conviction

1 In State v. Shearer, 8th Dist. Cuyahoga No. 103848, 2016-Ohio-7302, ¶ 7 (“Shearer II”), Shearer’s sentences on the firearm specifications were affirmed based on the doctrine of res judicata. In that case, Shearer filed a pro se appeal of a motion to vacate a void sentence, but the panel erroneously concluded that “the trial court complied with the ruling” in Shearer I based on the limited arguments presented in the pro se appeal. In further review of the procedural history, the trial court did not comply with the mandate of Shearer I. Regardless, under Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, we cannot rely on the Shearer II decision as a basis to affirm in this case. A void sentence is always void and is subject to correction at any time. for the felonious assault conviction unaffected by the merger decision. State v. Wilson, 129

Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 15, citing State v. Whitfield, 124 Ohio St.3d

319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 26-27. Instead, the panel reversed both felonious assault

convictions along with the attempted murder expressly holding that felonious assault is an allied

offense of attempted murder. There is no ambiguity; Shearer I concluded that both the felonious

assault convictions and the attempted murder convictions were allied offenses with each other.

The remand was ordered to permit the state the opportunity to elect which one of the three

offenses deemed to be allied would be pursued at sentencing. Id.

{¶6} As a result, the sentences imposed on the attempted murder and felonious assault

counts are void and must be vacated — the trial court was not authorized to impose separate

sentences on both counts. We remand this matter for a de novo sentencing hearing at which

time the state may elect to proceed on either the attempted murder or the felonious assault and

any attendant specification, but not both. Wilson at ¶ 16. We note, however, that the two-year,

concurrent sentence for the having a weapon while under disability offense, which at this point

has already been served, remains as originally imposed and cannot be altered. The question then

turns to the scope of the new sentencing hearing within this mandate.

{¶7} At that sentencing hearing, the trial court must consider the principles and purposes

of sentencing and the felony sentencing factors anew. Nothing in our decision or in the law of

this district should be interpreted as a limitation on the trial court’s sentencing discretion. The

trial court enjoys the same discretion to impose any sentence authorized by law, in addition to

any mandatory sentence on the firearm specification attendant to the base offense, as it would

have had at the original sentencing. State v. Jackson, 8th Dist. Cuyahoga No. 92365,

2009-Ohio-4995, ¶ 10; State v. Collins, 8th Dist. Cuyahoga Nos. 98575 and 98595, 2013-Ohio-938, ¶ 12, fn. 4; State v. Gibson, 8th Dist. Cuyahoga No. 102391, 2015-Ohio-3479, ¶

11. We recognize that the 13-year aggregate term of imprisonment imposed for both offenses is

within the permissible range of sentences on the attempted murder count alone. This possibility

does not alter, nor limit the de novo resentencing in any way.

{¶8} We note that at least one panel in this district has concluded that imposing a

sentence on an individual felony offense consistent with the original aggregate term of

imprisonment for offenses reversed under R.C. 2941.25 impermissibly implicates the sentencing

package doctrine, which is not recognized in Ohio under State v. Saxon, 109 Ohio St.3d 176,

2006-Ohio-1245, 846 N.E.2d 824, ¶ 10. State v. Quinones, 8th Dist. Cuyahoga No. 97054,

2012-Ohio-1939. In Quinones, a five-year aggregate term of imprisonment imposed on multiple

counts was vacated in the direct appeal as being imposed on allied offenses. The sentences on

all counts were vacated, and the matter was remanded for a de novo resentencing subject to the

state’s election. The trial court imposed a five-year sentence on the sole remaining count, which

was within the permissible range for the degree of felony at issue. Quinones reversed, claiming

the within-range sentence was void because it violated the prohibition against the sentencing

package doctrine.

{¶9} In addressing the implications of the sentencing package doctrine in the context of

reversing multiple sentences impermissibly imposed on allied offenses, the Ohio Supreme Court

concluded otherwise. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, at ¶ 16.

According to Wilson, vacating all sentences for offenses that are deemed to be allied and

remanding for a de novo sentencing hearing to impose a sentence upon the offense the state

elects is not violative of Saxon and, more importantly, does not implicate the sentencing package

doctrine. Id. According to Wilson, the federal sentencing package doctrine allows the modification or vacation of all the sentences imposed for multiple offenses in the situation where

there is a reversal of one of the sentences that comprises the aggregate term of imprisonment.

Id., citing Saxon and United States v. Clements, 86 F.3d 599, 600-601 (6th Cir.1996). However,

when multiple sentences are vacated on appeal, especially those deemed to be allied offenses, the

sentencing package doctrine does not preclude the trial court from sentencing on the vacated

convictions anew. Id. In accordance with Wilson, if multiple offenses are reversed in a direct

appeal as being allied ones of similar import, the appellate court must vacate all sentences

imposed on each of the allied offenses and remand for a de novo resentencing upon whatever

count (or counts, if applicable) survives the state’s election. That practice does not violate

Saxon or implicate the sentencing package doctrine.

{¶10} Wilson’s interpretation of Saxon was also recognized in State v. King, 8th Dist.

Cuyahoga No. 95972, 2011-Ohio-3985, ¶ 13, issued the year before Quinones. In King, it was

also concluded that the sentencing package doctrine precludes resentencing on counts not

reversed in the direct appeal, but notwithstanding, the trial court has authority upon remand to

impose sentences anew on the counts vacated by the appeal. The sentencing package doctrine

was inapplicable in Quinones and, therefore, could not serve as the basis for reversing the

individual sentence imposed on remand. Quinones did not address the implications of Wilson or

King and is of limited precedential value in defining the scope of this remand. We must

recognize that Quinones is limited to the narrow facts of the case and cannot be applied in a

broader context in light of Wilson. The Ohio Supreme Court’s decision in Wilson is binding

authority, and we cannot apply Quinones in such a way as to contravene Wilson.

{¶11} As a result, the scope of the de novo resentencing to be conducted upon remand is

controlled by Wilson, which authorizes a de novo sentencing on whichever count survives the state’s merger election. At the new sentencing hearing conducted pursuant to this remand, the

trial court shall sentence Shearer anew. It must be remembered that “while the defendants may

argue for reductions in their sentences, nothing prevents the state from seeking greater penalties”

than originally imposed for the individual offense based on its de novo consideration of all

sentencing factors, not those that have transpired since the original sentencing. Collins, 8th

Dist. Cuyahoga Nos. 98575 and 98595, 2013-Ohio-938, at ¶ 12, fn. 4; State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470; contra Quinones, 8th Dist. Cuyahoga No. 97054,

2012-Ohio-1939, and State v. Houston, 8th Dist. Cuyahoga Nos. 103252 and 103254,

2016-Ohio-3319.2 Although the scope of this remand is limited to two of the offenses in this

case, after consideration of all that is required by law, the trial court has discretion to impose any

sentence that is within the permissible ranges for the offense the state chooses to proceed upon,

in addition to any sentence on the attendant specification. Collins. The two-year, concurrent

sentence for the having a weapon while under disability offense, which at this point has already

been served, shall not be disturbed.

{¶12} The sentences imposed for the attempted murder and felonious assault counts are

vacated, and the matter is remanded for a de novo sentencing on whichever of those two counts,

including any attendant specification, survives the state’s election. Reversed and vacated.

2 Houston’s conclusion that a court must justify an increase in a sentence at a de novo resentencing with consideration of events or circumstances that occurred following the original sentencing arguably conflicted with State v. Cook, 8th Dist. Cuyahoga No. 90487, 2008-Ohio-4246, in which it was held that during a de novo resentencing the trial court is free to impose the identical sentence that was originally imposed, or a greater or lesser sentence within its discretion. This court has always recognized that vacated sentences must be considered anew, permitting but not mandating consideration of an offender’s conduct while serving the vacated term. Jackson, 8th Dist. Cuyahoga No. 92365, 2009-Ohio-4995, at ¶ 10. Inasmuch as Houston relied on a presumption of vindictive sentencing, this discussion is limited by the fact that in this district, the presumption “arises only when circumstances establish a ‘reasonable’ likelihood that an increased sentence is the product of vindictiveness.” State v. Schneider, 8th Dist. Cuyahoga No. 98938, 2013-Ohio-2532, ¶ 8. In State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 18, it was concluded that the mere fact of receiving a harsher sentence following the rejection of a plea offer did not give rise to the presumption of vindictiveness. By logical extension, the imposition of a harsher It is ordered that appellant recover of appellee 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 common pleas

court 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.

SEAN C. GALLAGHER, PRESIDING JUDGE

ANITA LASTER MAYS, J., and EILEEN A. GALLAGHER, J., CONCUR

sentence upon remand, in and of itself, cannot either.