State v. Cottrell , 2012 Ohio 2634 ( 2012 )

[Cite as State v. Cottrell, 2012-Ohio-2634.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97629
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
STEVE COTTRELL
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-409361
BEFORE: E. Gallagher, J., Celebrezze, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: June 14, 2012
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Steve Cottrell appeals from the trial court’s denial of his motion to void
judgment. Cottrell argues that he is entitled to a de novo sentencing hearing because the
trial court failed to impose a mandatory period of postrelease control and that his
judgment of conviction journalized May 2, 2002 is not a final, appealable order. For the
following reasons, we reverse the decision of the trial court and remand the matter for
resentencing for the proper imposition of postrelease control.
{¶2} On March 28, 2002, a jury found Cottrell guilty of one count of aggravated
murder with firearm and criminal gang activity specifications and three counts of
attempted murder with firearm and criminal gang activity specifications. On April 26,
2002, the trial court sentenced Cottrell to 20 years to life for aggravated murder, three
years for the firearm specification and three years for the criminal gang activity
specification, to be served consecutively to each other; five years for one count of
attempted murder to be served consecutive to the aggravated murder charge and five
years each on the remaining attempted murder charges to run concurrently to the other
sentences. Lastly, the trial court sentenced Cottrell to the possibility of five years of
postrelease control under R.C. 2967.28 for each count.
{¶3} Cottrell appealed and this court affirmed his conviction and sentence. See
State v. Cottrell, 8th Dist. No. 81356, 2003-Ohio-5806.
{¶4} On August 3, 2011, Cottrell filed a motion to void judgment, which the
state opposed. On November 1, 2011, the trial court denied Cottrell’s motion. Cottrell
appeals, raising the two assignments of error contained in the appendix to this opinion.
{¶5} In his first assignment of error, Cottrell argues that he is entitled to a de
novo sentencing hearing because the trial court failed to properly impose the mandatory
terms of postrelease control for his convictions. We agree, in part, with Cottrell’s
argument.
{¶6} When the trial court sentenced Cottrell on April 26, 2002, the trial court
stated “the possibility of postrelease control is a part of this prison sentence for a period
of five years on each count for the above felony(s) under R.C. 2967.28.”
{¶7} R.C. 2967.28 provides:
(B) Each sentence to a prison term for a felony of the first degree, for a
felony of the second degree, * * * shall include a requirement that the
offender be subject to a period of post-release control imposed by the
parole board after the offender’s release from imprisonment. * * *
(1) For a felony of the first degree * * *, five years[.]
{¶8} In State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124,
2010-Ohio-2671, 931 N.E.2d 110, the Ohio Supreme Court concluded that postrelease
control must be imposed upon a defendant who receives an indefinite sentence of life in
prison with parole eligibility for a first-degree felony conviction. See State v.
Falkenstein, 8th Dist. No. 96659, 2011-Ohio-5188. Of paramount concern to the court
was the legislative intent in enacting R.C. 2967.28. The Supreme Court found that the
statute’s plain, unambiguous language expressly requires the inclusion of a mandatory
postrelease control term of five years for each prison sentence for felonies of the first
degree and felony sex offenses. McCormick; Falkenstein. The Supreme Court
determined that “[b]ecause R.C. 2967.28(B)(1) is phrased in broad, sweeping language,”
the courts “must accord it broad, sweeping application.” McCormick. Thus,
“[a]lthough it could be implied from [R.C. 2967.28(F)] that postrelease control is
unnecessary for indefinite or life sentences, there is no specific language in either this or
other provisions that modifies the express language in R.C. 2967.28(B)(1) requiring
postrelease control.” McCormick; Falkenstein. “That is, R.C. 2967.28(B)(1) is not
expressly limited to definite sentences; instead, it applies broadly to ‘[e]ach sentence to a
prison term for a felony of the first degree.’” McCormick; Falkenstein.1
{¶9} Because Cottrell was sentenced on four first-degree felony charges, five
years of postrelease control is mandatory, not merely a possibility, and the trial court
erred when it denied his motion. The state concedes as much.
{¶10} Thus we remand the matter for resentencing. However, this remand is not
a de novo sentencing hearing as argued by Cottrell, but it is limited to the proper
imposition of postrelease control. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,
942 N.E.2d 332, at paragraph two of the syllabus.
{¶11} In his second assignment of error, Cottrell argues that his judgment of
conviction, which was journalized May 2, 2002, is not a final, appealable order because
1
While we note that Cottrell will be subject to a period of parole under his
indefinite sentence for aggravated murder, this appeal is limited to the correct
application of postrelease control. As such, we will limit our discussion to the issue
of postrelease control. See R.C. 2967.28(F)(4).
the clerk of court’s stamp of “received for filing” is inadequate. We overrule this
assignment of error.
{¶12} Cottrell could have raised this argument on his direct appeal in 2003; as
such, this argument is precluded by the doctrine of res judicata. Fischer. Further,
Cottrell’s judgment of conviction is time stamped by the clerk of courts, which
established that it was received by the clerk of court’s office on May 2, 2002. This
court reviewed his judgment of conviction in his direct appeal.
{¶13} Cottrell’s second assignment of error is overruled.
{¶14} The judgment of the trial court is reversed, and the matter remanded for a
limited resentencing to properly impose postrelease control.
It is ordered that appellant recover of said 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
lower 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.
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
Appendix A
Assignments of Error:
I. “Whether the trial court erred by failing to accord defendant a de novo hearing
on his motion for sentencing where the record (journal entry) on its face presents
a prima facie case for the requested relief.”
II. “Where the failure to properly file the attempted journal entry finding guilt
and imposing sentence offends due process.”