State v. Stiggers

2011 Ohio 4225

• Court: Ohio Court of Appeals
• Decided: August 24, 2011
• Docket: 25486
• Status: Published

Opinion

[Cite as State v. Stiggers, 2011-Ohio-4225.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 25486

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE DEREK SCOTT STIGGERS COURT OF COMMON PLEAS aka FLOWERS COUNTY OF SUMMIT, OHIO CASE No. CR 96 11 2733 Appellant

DECISION AND JOURNAL ENTRY

Dated: August 24, 2011

WHITMORE, Judge.

{¶1} Defendant-Appellant, Derek Stiggers, appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms in part and vacates in part.

I

{¶2} In 1997, Stiggers was convicted of two counts of attempted murder, two counts of

felonious assault, and one count of aggravated robbery. This Court recalled the facts underlying

this matter in Stiggers’ direct appeal. State v. Stiggers (Apr. 15, 1998), 9th Dist. No. 18405. In

2007, Stiggers sought a resentencing due to an invalid post-release control notification. In

response to Stiggers’ motion, the trial court issued a nunc pro tunc entry imposing a post-release

control term.

{¶3} On March 26, 2010, Stiggers filed a motion to vacate his void sentence, arguing

that a trial court may not correct a void sentence by way of a nunc pro tunc entry. The State

conceded that Stiggers had a void sentence and asked the court to sentence Stiggers in 2

accordance with State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434. The trial court held a

resentencing hearing on June 16, 2010. Both Stiggers and the State asked the trial court to depart

from the terms of the original sentence Stiggers received. Specifically, Stiggers asked the court

to impose a lesser term than he originally received on the basis of good behavior, and the State

requested an increased term, based on his continued lack of remorse. The trial court sentenced

Stiggers to a lengthier prison term than he originally received and imposed five years of

mandatory post-release control.

{¶4} Stiggers now appeals from his sentence and raises one assignment of error for our

review.

II

Assignment of Error

“STIGGER’S (sic) DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS WERE VIOLATED WHEN THE TRIAL COURT EXCEEDED ITS SENTENCING AUTHORITY DURING HIS POST[- ]RELEASE CONTROL RESENTENCING HEARING.”

{¶5} In his sole assignment of error, Stiggers argues that the trial court lacked authority

to take any additional action with regard to his sentence other than to properly impose post-

release control. We agree.

{¶6} After the trial court imposed Stiggers’ new sentence, the Supreme Court issued

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. Fischer dictates that an invalid post-

release control notification does not taint the entirety of an offender’s sentence. Instead, “when a

judge fails to impose statutorily mandated post[-]release control as part of a defendant’s

sentence, [only] that part of the sentence is void and must be set aside.” Fischer at ¶26. A

resentencing must be limited to the imposition of post-release control. Id. at ¶27-28. Applying

Fischer, this Court has recognized that a trial court exceeds its sentencing authority when it 3

conducts a de novo sentencing to correct a post-release control error. State v. Cool, 9th Dist.

Nos. 25135 & 25214, 2011-Ohio-1560, at ¶4-6. Because resentencing is limited to the

imposition of post-release control, any additional action taken by the trial court with respect to

the sentence is a nullity. Id.

{¶7} Acting without the benefit of Fischer, the trial court here conducted a de novo

sentencing hearing at which it modified the terms of Stiggers’ underlying sentence. It lacked the

authority to do so. Fischer at ¶26-28. Yet, the post-release control portion of the court’s

sentencing entry is correct, and Stiggers concedes that the court properly advised him of his

mandatory post-release control obligations. As such, to the extent the trial court’s June 22, 2010

sentencing entry imposes post-release control upon Stiggers, it is affirmed. “The remainder of

the trial court’s action in resentencing [Stiggers] exceeded the trial court’s jurisdiction and is a

nullity. Accordingly, this Court vacates the remainder of the trial court’s [June 22, 2010]

judgment, leaving the original sentence intact.” Cool at ¶5. Stiggers’ sole assignment of error is

sustained.

III

{¶8} Stiggers’ sole assignment of error is sustained. The judgment of the Summit

County Court of Common Pleas is affirmed in part and vacated in part in accordance with the

foregoing opinion.

Judgment affirmed in part, and vacated in part.

There were reasonable grounds for this appeal. 4

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT

CARR, P. J. MOORE, J. CONCUR

APPEARANCES:

DONALD R. HICKS, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.