State v. Zaffino , 2012 Ohio 1176 ( 2012 )

[Cite as State v. Zaffino, 2012-Ohio-1176.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26056
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOHN F. ZAFFINO COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 02 09 2788
DECISION AND JOURNAL ENTRY
Dated: March 21, 2012
CARR, Judge.
{¶1} Appellant, John F. Zaffino, appeals the decision of the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} On October 7, 2002, John Zaffino was indicted one count of aggravated murder
and one count of murder, with gun specifications on each count. The matter proceeded to trial
before a jury. The jury subsequently found Zaffino guilty of aggravated murder with a gun
specification. The second count of the indictment was dismissed. Zaffino was sentenced to a
term of life imprisonment for aggravated murder and three years for possession of a firearm, to
be served consecutively.
{¶3} Zaffino filed a timely appeal to this court and raised five assignments of error. On
December 31, 2003, this Court affirmed the trial court’s judgment. State v. Zaffino, 9th Dist. No.
21514, 2003-Ohio-7202.
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{¶4} On June 16, 2011, Zaffino filed a pro se motion to vacate his sentence. The State
filed a response and Zaffino replied thereto. On July 1, 2011, the trial court issued an order
denying Zaffino’s motion. Zaffino filed a notice of appeal on August 1, 2011. On appeal,
Zaffino raises two assignments of error.
II.
ASSIGNMENT OF ERROR I
THE APPELLANT’S SENTENCE IS ALSO VOID BECAUSE THERE
REMAINS A PENDING CHARGE IN THE MATTER AT HAND - A GUN
SPECIFICATION – WHICH HAS YET TO BE ADDRESSED BY THE TRIAL
COURT OR ANY COURT.
{¶5} In his first assignment of error, Zaffino argues that there remains an outstanding
charge against him. This Court disagrees.
{¶6} In support of his assignment of error, Zaffino contends that there is a gun
specification pending against him that has not been addressed by the trial court. Zaffino cites to
several of this Court’s decisions for the proposition that the trial court’s failure to dispose of all
of the charges in the indictment renders the judgment non-final.
{¶7} In State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, syllabus, the Supreme
Court of Ohio held that in order to constitute a final, appealable order, a judgment of conviction
must set forth the plea, the verdict, or findings upon which the conviction is based; the sentence;
the signature of the judge; and entry on the journal by the clerk of court. In State ex rel. Davis v.
Cuyahoga Cty. Court of Common Pleas, 127 Ohio St. 3d 29, 2010-Ohio-4728, the Supreme Court
clarified its holding in Baker. Specifically, the Supreme Court held that in order for a sentencing
entry to be final, it must contain “a full resolution of those counts for which there were
convictions. It does not require a reiteration of those counts and specifications for which there
were no convictions, but were resolved in other ways, such as dismissals, nolled counts, or not
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guilty findings.” Davis at ¶ 2. This Court has interpreted Baker “to mean that a journal entry
that does not contain reference to counts that were dismissed or upon which the defendant was
acquitted, does not render the journal entry invalid for lack of a final, appealable order.” State v.
Smead, 9th Dist. No. 24903, 2010-Ohio-4462, at ¶ 10. The Supreme Court has further held that
“a firearm specification is a penalty enhancement, not a criminal offense.” State v. Ford, 128
Ohio St. 3d 398, 2011-Ohio-765, paragraph one of the syllabus.
{¶8} In this case, there are no outstanding charges pending against Zaffino. As noted
above, the Summit County Grand Jury returned a two-count indictment against Zaffino. In count
one, Zaffino was charged with aggravated murder. In count two, Zaffino was charged with
murder. Both count one and count two contained firearm specifications. On March 13, 2003,
after the jury returned its verdict but prior to sentencing, the trial court issued a journal entry
indicating that Zaffino had been convicted by the jury of aggravated murder, along with the
related gun specification, as contained in count one of the indictment. The trial court further
ordered “that Count two of the Indictment be hereby DISMISSED.” The trial court subsequently
issued its sentencing entry on March 21, 2003. While the trial court’s dismissal order did not
specifically mention the specification to count two of the indictment, the dismissal order was
sufficient to dispose of both the murder charge as well as the related specification in count two of
the indictment. As the gun specification was a sentencing enhancement and not a criminal
offense, it did not exist as an outstanding charge once the underlying offense was dismissed.
Ford at paragraph one of the syllabus. Accordingly, because the record before us reveals that the
trial court resolved all of the charges against Zaffino, his first assignment of error is overruled.
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ASSIGNMENT OF ERROR II
THE APPELLANT MUST BE RESENTENCED BECAUSE THE TRIAL
COURT IMPROPERLY INFORMED HIM THAT UPON RELEASE FROM
PRISON, HE WOULD BE SUBJECT TO POST RELEASE CONTROL AND
FAILED TO PROPERLY INFORM HIM ABOUT PAROLE.
{¶9} In his second assignment of error, Zaffino argues that he must be resentenced
because the trial court improperly informed him that he would subject to post-release control and
failed to properly inform him about parole. This Court disagrees.
{¶10} In its sentencing entry, the trial court notified Zaffino that he would be eligible for
parole after serving 23 years in prison. Specifically, the trial court ordered that Zaffino be
sentenced to prison “for an actual Three (3) Year mandatory sentence for possession of a firearm,
to be served prior to and consecutive with a definite term of LIFE, with parole eligibility after 23
years * * * for punishment of the crime of AGGRAVATED MURDER [], a Special Felony[.]”
Inexplicably, however, the trial court further stated that “the Defendant is ordered subject to
post-release control to the extent the parole board may determine as provided by law.”
{¶11} The Supreme Court of Ohio has held that “the erroneous inclusion of postrelease
control in [an] original sentencing entry constitute[s] mere error for which [defendant] had an
adequate remedy in the ordinary course of law by way of appeal.” Davis at ¶ 2. Under previous
circumstances where a trial court included a discussion of post-release control in its journal entry
when sentencing an offender for a special felony, this Court held that while an erroneous
discussion of post-release control in a sentencing entry was inappropriate, it did not render an
offender’s sentence void. State v, Gordon, 9th Dist. No. 25370, 2010-Ohio-6308, at ¶ 7. In this
case, neither party disputes that Zaffino is not subject to post-release control upon his release
from prison because he was convicted of a special felony. Nevertheless, the trial court stated that
Zaffino was “subject to post-release control to the extent the parole board may determine as
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provided by law.” As the law does not provide for the imposition of post-release control for the
special felony of aggravated murder, the sentencing entry did not impose a term of post-release
control. Moreover, to the extent that the erroneous discussion of post-release control in the
sentencing entry constituted error, Zaffino had an adequate remedy in the ordinary course of law
by way of appeal. Davis at ¶ 2. As Zaffino did not raise this issue on direct appeal, he is now
barred from raising it in a subsequent action under the doctrine of res judicata. State v. Barclay,
9th Dist. No. 25646, 2011-Ohio-4770 at ¶ 11.
{¶12} Zaffino’s second assignment of error is overruled.
III.
{¶13} Zaffino’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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(C). 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.
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Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
MOORE, P. J.
CONCURS
BELFANCE, J.
CONCURS IN JUDGMENT ONLY
APPEARANCES:
JANA DELOACH, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.