State v. Stansell , 2022 Ohio 4079 ( 2022 )

[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