[Cite as State v. Reid,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 24841 Plaintiff-Appellee : : Trial Court Case No. 2001-CR-1371 v. : : TYRONE REID : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 15th day of June, 2012.

...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

TYRONE REID, #438-902, North Central Correctional Institution, 670 Marion Williamsport Road, Post Office Box 1812, Marion, Ohio 43301 Defendant-Appellant, pro se

.............

FAIN, J.

{¶ 1} Defendant-appellant Tyrone Reid appeals from a judgment of the trial

court re-sentencing him on his convictions for Murder, with a firearm specification, and for 2

Having a Weapon Under a Disability, a felony of the fifth degree. The re-sentencing was to

correct a defect in imposition of post-release control set forth in the original judgment entry.

Most of the errors Reid assigns are controlled by State v. Fischer,

,

,

, which limits the scope of a re-sentencing to correct an error

in the imposition of post-release control to that issue.

{¶ 2} Reid also argues that he was unfairly prejudiced by delay by the State,

because he would have obtained a de novo re-sentencing hearing under the law in effect before

State v. Fischer, but for the State’s delay, which caused the re-sentencing hearing to take place

after State v. Fischer was decided. Even if this were deemed to constitute error in the trial

proceedings, it would necessarily be harmless. Reid’s eighteen-year-to-life sentence for

Murder with the firearm specification was mandated by law. Therefore, a de novo sentencing

hearing could not have produced a different result. And Reid’s concurrent six-month

sentence for Having a Weapon Under Disability had already been completed, so any

procedural error with respect to that sentence would necessarily be moot.

I. The Course of Proceedings

{¶ 3} Reid was charged by indictment with two counts of Murder, with a

firearm specification, one count of Aggravated Robbery, and one count of Having a Weapon

Under Disability, with a firearm specification, in connection with the 2001 shooting deaths of

Cedron Brown and Billy Thomas. He was convicted of the Murder of Cedron Brown, with

the firearm specification, and for Having a Weapon Under Disability, with the firearm

specification. He was acquitted of the Murder of Billy Thomas and of Aggravated Robbery. 3

The facts are set forth in State v. Reid, 2d Dist. Montgomery No. 19729,

.

{¶ 4} The two firearm specifications were merged. Reid was sentenced to

fifteen years to life for Murder, and to six months for Having a Weapon Under Disability, to

be served concurrently. He was sentenced to three years for the merged firearm

specifications, to be served prior to, and consecutively to, the other sentences. The judgment

entry stated that Reid “will/may serve a period of post release control under the supervision of

the parole board.” Reid appealed. We affirmed.

{¶ 5} On August 22, 2011, Reid appeared before the trial court for

re-sentencing to correct error in the imposition of post-release control concerning the

six-month sentence for Having a Weapon Under a Disability. Reid sought a continuance.

The trial court granted a continuance until September 19, 2011. On that date, Reid raised a

number of arguments, including an argument that he was entitled to a re-sentencing de novo.

The trial court disagreed, and imposed the same sentence as before, but with the provision

that: “on Count 4: Having Weapons While Under Disability (prior offense of violence)

(F5) the defendant may, if the Parole Board determines that a period of Post Release Control

is necessary for the defendant, be supervised by the Parole Board for a period of Three (3)

years Post-Release Control after the defendant’s release from imprisonment.” (Emphasis in

original.)

{¶ 6} Reid appeals from the judgment entry re-sentencing him.

II. The Trial Court Was Not Required to Re-Sentence Reid De Novo

{¶ 7} Reid’s First Assignment of Error is as follows: “TRIAL COURT 4

ERRED IN VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS WHEN IT FAILED

TO VACATE, AND SUBSEQUENTLY REIMPOSED THE APPELLANT’S ‘NULL AND

VOID’ ATTEMPTED SENTENCE, AND FAILED TO GRANT THE APPELLANT A FULL

DE NOVO SENTENCING HEARING.”

{¶ 8} Reid contends that because his sentence, as first imposed, included an

incomplete provision for post-release control, his sentence was completely void, and he was

therefore entitled to a new sentencing hearing when he was re-sentenced in 2011. State v.

Bezak,

,

,

, arguably supports that

proposition, but that holding in Bezak has been expressly overruled by State v. Fischer,

,

,

, ¶ 36.

{¶ 9} Under Fischer, it is clear that only the defective aspect of the sentence –

the improper, or incomplete, imposition of post-release control – is void. The remainder of

the sentence is valid, and has res judicata effect.

Therefore, the scope of Reid’s 2011

re-sentencing hearing was limited to correcting the imposition of post-release control.

{¶ 10} Reid’s First Assignment of Error is overruled.

III. The Delay in Correcting the Post-Release Control Aspect of

Reid’s Sentence Did Not Amount to a Prejudicial Delay Between

the Verdict of Guilty and the Rendering of Judgment

{¶ 11} Reid’s Second Assignment of Error is as follows: “THE APPELLANT’S

RIGHT TO DUE [PROCESS] WAS VIOLATED AND THE APPELLANT SUFFERED

SUBSTANTIAL PREJUDICE FROM THE DELAY IN SENTENCING AND 5

RESENTENCING, IN THE FORM OF DESTROYED MATERIAL EVIDENCE WHICH

HAD A CLEAR EXCULPATORY VALUE WHICH WAS IRREPLACABLE [sic].”

{¶ 12} Here, Reid seems to be arguing that his initial sentence was completely void;

therefore, there was an eight-year delay between the time the jury rendered its verdict and the

time the trial court rendered its judgment of conviction and sentence, during which much

valuable evidence was destroyed or lost. This argument depends, crucially, upon the premise

that the initial sentence was completely void. But State v.

holds that only the

defective part of the initial sentence pertaining to post-release control is void; the remainder of

the initial sentence is effective. See Part II, above.

{¶ 13} The trial court had no discretion to exercise with respect to the imposition of

post-release control – it was required by statute to include a provision for post-release control,

at the option of the Ohio Adult Parole Authority. Therefore, the delay in imposing this aspect

of Reid’s sentence cannot have prejudiced him. Furthermore, as the State notes, the error in

the imposition of post-release control may be corrected at any time prior to the defendant’s

release from prison. State v. Fischer, ¶ 40.

{¶ 14} Reid’s Second Assignment of Error is overruled.

IV. The Trial Court Did Not Lose Jurisdiction to Correct

the Imposition of Post-Release Control by Reason of Delay

{¶ 15} Reid’s Third Assignment of Error is as follows: “THE TRIAL COURT WAS

DIVESTED OF JURISDICTION TO SENTENCE APPELLANT BASED UPON THE

UNNECESSARY DELAY OF 103 MONTHS FROM THE FINDING OF GUILT TO THE 6

IMPOSITION OF A VALID SENTENCE, AND 38 MONTHS SINCE THE INITIAL

REMAND FOR ‘RESENTENCING’ DENYING THE APPELLANT HIS RIGHTS TO DUE

PROCESS TO A FINAL APPEALABLE JUDGMENT WITHOUT UNNECESSARY

DELAY PER CRIM.R. 32(A) AND THE U.S. CONST.”

{¶ 16} Here, Reid appears to be re-arguing his Second Assignment of Error in

jurisdictional terms; i.e., not only did the trial court err in delaying sentence, its delay divested

it of jurisdiction. For all of the reasons set forth in Part III, above, dealing with Reid’s

Second Assignment of Error, we find this argument unconvincing. Under State v.

, the defect in the provision for post-release control could be corrected at any time.

{¶ 17} Furthermore, under State v. Fischer, Reid’s initial sentence was a final

judgment from which an appeal could be taken, and, in fact, Reid appealed from it, and we

rendered judgment in State v.

The delay in correcting the post-release control

aspect of Reid’s sentence did not deprive him of the opportunity to appeal from his conviction

and sentence.

V. The Correction of the Post-Release Control Aspect of Reid’s Sentence

Did Not Amount to Retroactive Application of R.C. 2929.191

{¶ 18} Reid’s Fourth Assignment of Error is as follows: “THE TRIAL COURT

ERRED WHEN IT ‘RETROACTIVELY’ APPLIED R.C. §2929.191 TO THE INSTANT

CASE, IN VIOLATION OF SECT. 28 ART. II, OF THE OHIO CONST., DESPITE

APPELLANT’S OBJECTIONS, IN VIOLATION OF APPELLANT’S DUE PROCESS

RIGHTS.” 7

{¶ 19} The Ohio General Assembly enacted its own remedy to the problem posed by

sentences with omitted, or defective, post-release-control provisions in R.C. 2929.191, by

providing that a trial court could correct the sentencing entry, nunc pro tunc. Reid contends

that application of this law to him violates the Retroactive Laws provision in Section 28,

Article II, of the Ohio Constitution.

{¶ 20} State v.

, held, independently of R.C. 2929.191, that a

sentence lacking a proper provision for post-release control is void, to that limited extent, and

the void part of the sentence can be corrected at any time, without having to re-visit other

aspects of the sentence. At the re-sentencing hearing, the trial court made it clear that it was

proceeding under the authority of State v. Fischer. Therefore, even if Reid were correct in his

assertion that R.C. 2929.191 could not be applied to his case because of the Retroactive Laws

provision, it would be immaterial, since the trial court had the independent authority to correct

its partially void sentence under State v. Fischer.

{¶ 21} Before State v. Fischer, the Supreme Court of Ohio held in State v. Singleton,

,

,

, that for sentences imposed

before July 11, 2006 (which would include Reid’s sentence), in which the trial court failed to

properly impose post-release control, a full, de novo sentencing hearing is required, whereas

for sentences imposed on or after that date, the nunc pro tunc correcting procedure set forth in

R.C. 2929.191 could be used. But that holding in Singleton was predicated upon State v.

which was overruled by State v. Fischer. Therefore, the holding in State v.

Singleton has been effectively overruled by the holding in State v.

State v.

Lincoln, 4th Dist. Washington No. 10CA16,

. 8

{¶ 22} Reid’s Fourth Assignment of Error is overruled.

VI. The Trial Court Was Not Required to Allow Reid to Present Evidence

in Mitigation at the Re-Sentencing Hearing, Which Was Limited in Scope

to the Correction of the Defective Provision for Post-Release Control

{¶ 23} Reid’s Fifth Assignment of Error is as follows: “TRIAL COURT ERRED IN

VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS WHEN IT DENIED

APPELLANT THE RIGHT TO PRESENT MITIGATING EVIDENCE PURSUANT TO

CRIM.R.32(A)(1), DESPITE APPELLANT VOICING HIS RIGHT TO DO SO.”

{¶ 24} Reid’s Sixth Assignment of Error is as follows: “TRIAL COURT ERRED IN

PREJUDICE OF THE APPELLANT DURING THE RESENTENCING HEARINGS WHEN

IT DID NOT INFORM, AND PREVENTED THE APPELLANT FROM HIS

CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS, IN VIOLATION OF THE

DUE PROCESS RIGHTS AFFORDED TO THE APPELLANT.”

{¶ 25} In both of these assignments of error, Reid complains that the trial court did

not allow him to present evidence in mitigation at the 2011 re-sentencing hearing. This

argument depends upon Reid’s assertion that he was entitled to a full, de novo sentencing

hearing, at which evidence in mitigation would be appropriate. But we have rejected this

assertion. Part II, above.

{¶ 26} Since the scope of the 2011 re-sentencing hearing was limited to correcting

the defect in the provision for post-release control, which was not subject to the trial court’s

discretion, evidence in mitigation was immaterial. Reid’s Fifth and Sixth assignments of 9

error are overruled.

VII. The Trial Court Did Not Render a Judgment Convicting Reid of

Having a Weapon Under Disability as a Third-Degree Felony

{¶ 27} Reid’s Seventh Assignment of Error is as follows: “TRIAL COURT ERRED

WHEN IT ENHANCED THE APPELLANT’S SENTENCE OF WEAPONS UNDER

DISABILITY (FEL 5) TO WEAPONS UNDER DISABILITY (FEL 3), IN VIOLATION OF

APPELLANT’S 5TH AMENDMENT RIGHT TO DUE PROCESS AND THE DOUBLE

JEOPARDY CLAUSE.”

{¶ 28} When Reid committed the offense of Having a Weapon Under a Disability, it

was a felony of the fifth degree. It is now a felony of the third degree. The genesis for this

assignment of error is that when Reid appeared in court at the 2011 re-sentencing hearing, the

trial court mistakenly referred to his Having a Weapon Under a Disability offense as a felony

of the third degree. But the judgment subsequently entered refers to the Having a Weapon

Under a Disability offense as a felony of the fifth degree, for which Reid’s six-month sentence

is both appropriate, and the minimum sentence of incarceration. A six-month sentence would

not be within the statutory range for a felony of the third degree.

{¶ 29} In Reid’s Seventh Assignment of Error, he is complaining that the trial court

violated his double-jeopardy rights by enhancing his conviction for Having a Weapon Under a

Disability to a third-degree felony. Of course, it did no such thing. The judgment entry

reflects, properly, that Reid was convicted of the offense as a fifth-degree felony. The trial

court merely mis-spoke at the sentencing hearing. 10

{¶ 30} Reid’s Seventh Assignment of Error is overruled.

VIII. The Trial Court Did Not Violate R.C. 2943.032

{¶ 31} Reid’s Eighth Assignment of Error is as follows: “TRIAL COURT ERRED

TO THE PREJUDICE OF THE APPELLANT, WHEN IT FAILED TO FOLLOW, AND

INFORM THE APPELLANT OF THE MANDATES STIPULATED IN R.C. 2943.032(E).

THUS MAKING THE ‘ATTEMPTED SENTENCE’ VOID.”

{¶ 32} Before its revision in 2008, R.C. 2943.032 provided as follows:

Prior to accepting a guilty plea or a plea of no contest to an indictment,

information, or complaint that charges a felony, the court shall inform the defendant

personally that, if the defendant pleads guilty or no contest to the felony so charged or

any other felony and if the court imposes a prison term upon the defendant for the

felony, all of the following apply:

(A) The parole board may extend the stated prison term if the defendant

commits any criminal offense under the law of this state or the United States while

serving the prison term.

(B) Any such extension will be done administratively as part of the defendant's

sentence in accordance with section 2967.11 of the Revised Code and may be for

thirty, sixty, or ninety days for each violation.

(C) All such extensions of the stated prison term for all violations during the

course of the term may not exceed one-half of the term's duration.

(D) The sentence imposed for the felony automatically includes any such 11

extension of the stated prison term by the parole board.

(E) If the offender violates the conditions of a post-release control sanction imposed by

the parole board upon the completion of the stated prison term, the parole board may impose

upon the offender a residential sanction that includes a new prison term up to nine months.

{¶ 33} Today, R.C. 2943.032 is simpler, and contains no sub-divisions:

Prior to accepting a guilty plea or a plea of no contest to an indictment, information, or

complaint that charges a felony, the court shall inform the defendant personally that, if the

defendant pleads guilty or no contest to the felony so charged or any other felony, if the court

imposes a prison term upon the defendant for the felony, and if the offender violates the

conditions of a post-release control sanction imposed by the parole board upon the completion

of the stated prison term, the parole board may impose upon the offender a residential sanction

that includes a new prison term of up to nine months.

{¶ 34} Both the pre- and post-2008 versions of R.C. 2943.032 impose a duty upon the trial

court to explain the possible consequences of violations of a post-release control sanction to a

defendant before accepting his plea of guilty or of no contest. Reid did not plead guilty or no contest.

He was convicted by a jury. Therefore, R.C. 2943.032, upon which he relies for this assignment of

error, has no application to him.

{¶ 35} In any event, the potential consequences of a violation of conditions of

post-release control are set forth in the 2011 judgment entry, including, specifically, that he

could be imprisoned for up to nine months. Reid complains that he was not informed that he

could be imprisoned for up to nine months for a violation. He is obviously aware of that 12

now, and is on notice of that potential consequence before potentially being released subject to

post-release control sanctions. That he was not informed of this potential consequence at his

2011 sentencing hearing cannot, therefore, have prejudiced him.

{¶ 36} Reid’s Eighth Assignment of Error is overruled.

IX. Trial Counsel Was Not Ineffective for Having Failed to Make the Arguments that

Reid Claims Counsel Should Have Made, None of Which Have Merit

{¶ 37} Reid’s Ninth Assignment of Error is as follows: “APPELLANT WAS

DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE 6TH AND 14TH

AMENDMENTS OF THE U.S. CONSTITUTION AND ART I SECTION 10 OF THE OHIO

CONST; WHEN COUNSEL FAILED TO INFORM THE TRIAL COURT THAT IT WAS

DIVESTED OF JURISDICTION TO SENTENCE APPELLANT BASED UPON THE

DELAY IN SENTENCING AND RESENTENCING ALTHOUGH HE WAS INFORMED

BY APPELLANT TO DO SO.”

{¶ 38} Reid’s Tenth Assignment of Error is as follows: “APPELLANT WAS

DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE 6TH AND 14TH

AMENDMENTS

OF THE U.S. CONST., AND ART I §10 OF THE OHIO CONST., WHEN APPOINTED

COUNSEL FAILED TO ARGUE THAT THE APPELLANT SUFFERED SUBSTANTIAL

PREJUDICE FROM THE DELAY IN SENTENCING, AND RESENTENCING.”

{¶ 39} Reid’s Eleventh Assignment of Error is as follows: “APPELLANT WAS

DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE 6TH AND 14TH 13

AMENDMENTS OF THE U.S. CONST., AND ART I §10 OF THE OHIO CONST., WHEN

COUNSEL FAILED TO SUBPOENA PURSUANT TO CRIM.R. 17(A), WITNESSES IN

MITIGATION OF PUNISHMENT ALTHOUGH DIRECTED BY THE APPELLANT TO

DO SO. THIS ISSUE IS ALSO A PLAIN ERROR, PURSUANT TO CRIM.R. 52(B).”

{¶ 40} In each of these assignments of error, Reid asserts that his trial counsel was

ineffective for having failed to take certain actions at his re-sentencing. But we have already

decided that none of the arguments Reid says his counsel should have made were valid, and

that Reid was not entitled to any of the relief that he says his counsel should have demanded.

{¶ 41} The trial court was not divested of jurisdiction to re-sentence Reid, the

predicate for his Ninth Assignment of Error. See Part IV, above.

{¶ 42} The delay between the verdict of guilty and Reid’s re-sentencing did not

amount to a prejudicial delay in rendering judgment on the verdict, the predicate for Reid’s

Tenth Assignment of Error. See Part III, above.

{¶ 43} The trial court was not required to allow Reid to present evidence in

mitigation at the re-sentencing hearing, the predicate for Reid’s Eleventh Assignment of Error.

See Part VI, above.

{¶ 44} Reid’s Ninth, Tenth, and Eleventh assignments of error are overruled.

X. Even If the State Unfairly Deprived Reid of the Right to a De Novo

Sentencing Hearing that He Would Have Had Before State v. Fischer

Was Decided, He Was Not Thereby Prejudiced with Respect to His

Murder and Firearm Specification Sentences, and Any Adverse Effect 14

Upon his Having a Weapon Under Disability Sentence Is Now Moot

{¶ 45} Reid’s Twelfth Assignment of Error is as follows: “THE APPELLANT’S

RIGHT TO DUE PROCESS WAS VIOLATED WHEN HIS JULY 28TH, 2008 DE NOVO

REVIEW HEARING WAS INTENTIONALLY DELAYED BY THE STATE UNTIL

AUGUST 22, 2011, TO GAIN A TACTICAL ADVANTAGE OVER THE APPELLANT, IN

LIGHT OF STATE V. FISCHER, OR THROUGH NEGLIGENCE FAILED TO MAKE ANY

EFFORT TO RESOLVE THE APPELLANT’S DE NOVO REVIEW HEARING.”

{¶ 46} In support of this assignment of error, Reid cites the following statement he

made to the trial court at his re-sentencing hearing:

The initial remand for re-sentencing was over three years ago, July of 2008.

And no one came to get me. There’s – the factors involved in determining a delay in

re-sentencing is if I suffered actual prejudice.

{¶ 47} Reid argues that the delay in his re-sentencing is the fault of the State; and that

the result of the delay was that State v.

was decided in 2010, as a result of

which he was no longer entitled to a de novo sentencing hearing. This intentional or

negligent act on the part of the State, he argues, had the effect of gaining a tactical advantage

due to State v. Fischer.

{¶ 48} Solely for the purposes of demonstrating that his argument cannot gain Reid a

reversal of the judgment, we will assume that it is otherwise valid.

{¶ 49} Had Reid been accorded a de novo sentencing hearing in 2008, it could not

have affected his sentences for Murder and for the firearm specifications. By statute, the

sentence for Murder was required to be an indeterminate sentence of fifteen years to life. 15

And by statute, the sentence for the firearm specifications was required to be three years, to be

served prior to, and consecutively to, his other sentences. The most extensive de novo

sentencing hearing, with the assistance of the finest criminal defense lawyers in the country,

could not have changed that outcome.

{¶ 50} With respect to his sentence for Having a Weapon While Under a Disability,

Reid was sentenced to six months, to be served consecutively to, and after, the three-year

sentence for the firearm specifications, but concurrently with the Murder sentence. That

sentence has already been completed. According to Reid, at the 2011 sentencing hearing, his

original sentence was imposed in January, 2003. Therefore, the three-year sentence for the

firearm specifications, even without any jail-time credit, had to have been completed by

January 31, 2006, at the latest, and the six-month sentence for Having a Weapon Under a

Disability must have been completed by six months thereafter, July 31, 2006, at the latest.

{¶ 51} Therefore, any error that adversely affected Reid’s sentence for Having a

Weapon Under a Disability is necessarily moot. Of course, since Reid had been convicted of

Murder, it is unlikely in the extreme that the trial court would have imposed anything less than

a concurrent sentence of six months for the Having a Weapon Under a Disability offense, the

minimum prison term for that offense.

{¶ 52} Reid’s Twelfth Assignment of Error is overruled.

XI. Conclusion

{¶ 53} All of Reid’s assignments of error having been overruled, the judgment of the

trial court is Affirmed. 16

.............

DONOVAN and HALL, JJ., concur.

Copies mailed to:

Mathias H. Heck Carley J. Ingram Tyrone Reid Hon. Timothy N. O’Connell