State v. Stansell ( 2022 )


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  • [Cite as State v. Stansell, 
    2022-Ohio-4079
    .]
    COURT OF APPEALS OF OHIO
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    STATE OF OHIO,                                       :
    Plaintiff-Appellee,                          :
    v.                                           :        No. 101555
    MICHAEL STANSELL,                                    :
    Defendant-Appellant.                         :
    JOURNAL ENTRY AND OPINION
    JUDGMENT: APPLICATION DENIED
    RELEASED AND JOURNALIZED: November 15, 2022
    Cuyahoga County Court of Common Pleas
    Case No. CR-07-356129-A
    Application for Reopening
    Motion No. 558612
    Appearances:
    Michael C. O’Malley, Cuyahoga County Prosecuting
    Attorney, and Katherine E. Mullin, Assistant Prosecuting
    Attorney, for appellee.
    Michael Stansell, pro se.
    SEAN C. GALLAGHER, A.J.:
    Applicant, Michael Stansell, seeks to reopen his appeal in State v.
    Stansell, 8th Dist. Cuyahoga No. 101555, 
    2015-Ohio-1822
    . However, this is an
    appeal from an order of the trial court imposing postrelease control from a limited
    remand from this court, not a direct appeal from his conviction and sentence. As a
    result, App.R. 26(B) is inapplicable to this appeal. For this and other reasons
    outlined below, the application is denied.
    Stansell was convicted of various sexual offenses in 1998, for which
    he received an aggregate sentence of imprisonment of 20 years to life. He appealed
    his convictions to this court, which were affirmed. State v. Stansell, 8th Dist.
    Cuyahoga No. 75889, 
    2000 Ohio App. LEXIS 1726
     (Apr. 20, 2000) (“Stansell I”).
    In 2013, Stansell filed a motion to vacate the 1998 sexually violent predator
    specification of which he was convicted. The trial court denied the motion, and
    Stansell appealed. We upheld the trial court’s denial of the motion but remanded
    for the limited purpose of advising Stansell of and to properly impose postrelease
    control. State v. Stansell, 
    2014-Ohio-1633
    , 
    10 N.E.3d 795
    , ¶ 21, 23 (8th Dist.)
    (“Stansell II”).
    On remand, the trial court held a limited sentencing hearing where
    Stansell was informed of postrelease control and the court imposed court costs and
    entered judgment against Stansell in an amount equal to the costs of his
    prosecution. Stansell appealed from this order, claiming the court erred when it
    imposed court costs and entered a judgment against him in the amount of those
    costs. Stansell, 8th Dist. Cuyahoga No. 101555, 
    2015-Ohio-1822
     (“Stansell III”). On
    May 14, 2015, this court journalized an opinion affirming the judgment of the trial
    court. We found that Stansell was ordered to pay court costs in the original 1998
    sentencing entry and a claim to the contrary was barred by res judicata. Id. at ¶ 6.
    In 2019, Stansell filed a motion to vacate his sexually violent predator
    specification and sentence with the trial court. The court denied the motion, and
    Stansell appealed that decision. State v. Stansell, 
    2021-Ohio-203
    , 
    166 N.E.3d 1287
    (8th Dist.) (“Stansell IV”). The panel hearing this appeal initially agreed with him
    and vacated his sentence relative to the sexually violent predator specification.1 
    Id.
    However, in a decision en banc, this court affirmed the trial court’s denial of
    Stansell’s motion. State v. Stansell, 
    2021-Ohio-2036
    , 
    173 N.E.3d 1273
     (8th Dist.)
    (“En banc Stansell”). A majority of judges sitting en banc, based on the Ohio
    Supreme Court’s decisions in State v. Harper, 
    160 Ohio St.3d 480
    , 
    2020-Ohio-2913
    ,
    
    159 N.E.3d 248
    , and State v. Henderson, 
    161 Ohio St.3d 285
    , 
    2020-Ohio-4784
    , 
    162 N.E.3d 776
    , found that the error Stansell raised involved a sentence that was
    voidable, not void. En banc Stansell at ¶ 11. As a result, the three-judge merit panel
    determined that collateral review of the sentence for the sexually violent predator
    specification was precluded because it was not raised in the direct appeal. Id. at ¶ 6.
    In a concurring opinion, it was noted that “offenders seeking to challenge an
    allegedly erroneous sentence must do so in a timely direct appeal. If the error is not
    timely challenged, it could only be raised in a motion to reopen the appeal under
    1This decision was on reconsideration and replaced the originally issued opinion, State
    v. Stansell, 
    2020-Ohio-3674
    , 
    154 N.E.3d 1179
     (8th Dist.).
    App.R. 26(B) or, if no appeal has been filed, as a delayed appeal under App.R. 5(A).”
    Id. at ¶ 23, fn. 2 (S. Gallagher, J., concurring).
    On October 3, 2022, Stansell filed an application to reopen Stansell
    III, rather than Stansell I. The state filed a timely brief in opposition on November 1,
    2022. There, it argued that the application was untimely without good cause shown
    and the application failed on the merits.
    App.R. 26(B) provides for a limited means of reopening a direct
    appeal from the “judgment of conviction and sentence” based on a claim of
    ineffective assistance of appellate counsel. Appeals from other collateral attacks on
    the conviction and sentence are not subject to reopening. State v. Melendez, 8th
    Dist. Cuyahoga No. 109199, 
    2021-Ohio-840
    ; State v. Lawrence, 8th Dist. Cuyahoga
    No. 109951, 
    2021-Ohio-3357
    , citing State v. Perotti, 8th Dist. Cuyahoga No. 73743,
    
    2005-Ohio-2175
    , ¶ 3, citing State v. Loomer, 
    76 Ohio St.3d 398
    , 
    667 N.E.2d 1209
    (1996).
    Here, Stansell is not attempting to reopen his direct appeal from the
    judgment of conviction and sentence. He is attempting to reopen an appeal from a
    limited sentencing hearing, the sole purpose of which was to inform him of the
    applicability and consequences of postrelease control. If this application is granted
    and the appeal is reopened, the issues would be limited to those that could properly
    be raised in that appeal. Those issues are confined to the purpose of the sentencing
    hearing: to properly inform applicant of postrelease control. See Stansell III at ¶ 6,
    citing State v. Ketterer, 
    140 Ohio St.3d 400
    , 
    2014-Ohio-3973
    , 
    18 N.E.3d 1199
    , ¶ 25-
    27. The trial court had no jurisdiction to address issues beyond the scope of the
    limited remand, and therefore appellate counsel could not be ineffective for failing
    to raise any such issue. The holding of En banc Stansell, that res judicata bars
    collateral sentencing review when not raised in a direct appeal, would equally apply
    to a claim that appellate counsel was ineffective for not challenging the sexually
    violent predator specification and related sentence. Therefore, the application must
    be denied.
    App.R. 26(B) is inapplicable to the present appeal. Therefore, we
    decline to address whether the significant delay between the journalization of the
    appellate decision in Stansell III (May 14, 2015) and the filing date of the application
    (October 3, 2022) should be excused for good cause shown.
    Application denied.
    ____________________________________
    SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
    MICHELLE J. SHEEHAN, J., and
    LISA B. FORBES, J., CONCUR
    

Document Info

Docket Number: 101555

Judges: S. Gallagher

Filed Date: 11/15/2022

Precedential Status: Precedential

Modified Date: 11/17/2022