[Cite as State v. Falkenstein,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99670

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DONALD FALKENSTEIN DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-434255

BEFORE: McCormack, J., Stewart, A.J., and Blackmon, J.

RELEASED AND JOURNALIZED: December 5, 2013 ATTORNEY FOR APPELLANT

David L. Doughten The Brownhoist Building 4403 St. Clair Avenue Cleveland, OH 44103

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Adam M. Chaloupka Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} This is the third time Donald Falkenstein appeals his conviction of rape of a

child under the age of 13. In this appeal, he claims the trial court erred by resentencing

him without a hearing. Finding no merit to his claim, we affirm the judgment of the trial

court.

{¶2} In 2003, Falkenstein was convicted of 41 counts of rape of a child under the

age of 13. The trial court sentenced him to consecutive life terms in prison, with the

parole eligibility after 20 years. This court affirmed Falkenstein’s conviction, in State v.

Falkenstein, 8th Dist. Cuyahoga No. 83316,

(“Falkenstein I”).

{¶3} In October 2010, Falkenstein filed a pro se “motion to set aside/vacate or in

the alternat[ive] resentence him on an otherwise void sentence.” He argued his sentence

was void because the trial court failed to advise him of the mandatory five years of

postrelease control and of the consequences of a postrelease control violation — in the

2003 sentencing entry, the trial court stated postrelease control was part of Falkenstein’s

prison sentence “for the maximum period allowed for the above felony(s) under R.C.

2967.28,” without specifying that it would be a mandatory five-year term. In addition,

the journal entry did not mention the consequences of a postrelease-control violation.

{¶4} The trial court denied Falkenstein’s motion to set aside/vacate, and he

appealed that decision. In his (second) appeal, State v. Falkenstein, 8th Dist. Cuyahoga

No. 96659,

, (“Falkenstein II”), we noted that Falkenstein did not file a transcript of the sentencing hearing with this court, nor did he request one; in fact, he

stated a transcript was not necessary. Therefore, we determined that we must presume

that Falkenstein was properly advised at his sentencing hearing regarding his postrelease

control.

{¶5} We determined, however, that the sentencing entry was defective because

the trial court did not specifically notify him of the mandatory five-year term of

postrelease control for his first-degree sex offense, nor the consequences of a violation.

The main issue in the second appeal was how the defect in the sentencing entry should be

corrected by the trial court.

{¶6} Falksenstein argued he was entitled to a de novo sentencing hearing. We

rejected that claim, citing State v. Fischer,

,

,

. Fischer held that “[t]he new sentencing hearing to which an offender is

entitled * * * is limited to proper imposition of postrelease control,” not a de novo

sentencing hearing. Fischer at paragraph two of the syllabus.

{¶7} Moreover, quoting the Fischer court’s observation that remand for

resentencing “is just one arrow in the quiver,” id. at ¶29, we interpreted Fischer as

permitting a correction of the sentencing entry without a remand for a (limited) hearing,

where a defendant had been notified of postrelease control at the sentencing hearing.

“Correcting the defect without remanding for resentencing can provide an equitable,

economical, and efficient remedy for a void sentence.” Id. at ¶30. {¶8} As a result, exercising our authority under R.C. 2953.08(G)(2), which

allows an appellate court to “increase, reduce or otherwise modify a sentence,” we

modified and corrected Falkenstein’s postrelease control from “the maximum period

allowed * * * under R.C. 2967.28” to “a mandatory term of five years postrelease

control.” Falkenstein II. We instructed the trial court to, upon remand, correct the

sentencing entry to reflect the proper period of mandatory postrelease control, i.e., five

years, and further, to include the consequences for violating the provisions of postrelease

control. Id. at ¶ 16. See also State v. May, 8th Dist. Cuyahoga Nos. 96362 and 96421,

(judgment modified to reflect a mandatory five-year term of

postrelease control and case remanded with instructions to correct the sentencing entry).

{¶9} Falkenstein did not appeal our decision in Falkenstein II to the Supreme

Court of Ohio, and upon remand, the trial court followed our directives — in a December

21, 2011 judgment entry, the court corrected the sentencing entry to reflect a notice of the

mandatory term of five years of postrelease control, and also of the consequences of a

violation.

{¶10} Falkenstein filed a delayed appeal challenging that judgment. This court

granted leave for the delayed appeal.

{¶11} In this (third) appeal, Falkenstein’s sole assignment of error states: “The

trial court erred by re-sentencing the defendant without a hearing in which the defendant

was present and represented by counsel.” {¶12} When a case is remanded, a lower court must “carry the mandate of the

upper court into execution and not consider the questions which the mandate laid at rest.”

State v. Carlisle, 8th Dist. Cuyahoga No. 93266,

, ¶ 16, citing Sprague v.

Ticonic Natl. Bank,

,

,

(1939). When the

mandate leaves nothing to decide, the lower court is bound to execute it.

citing

Sprague.

{¶13} Here, on remand from Falkenstein II, the trial court followed our

instructions and issued a corrected sentencing entry. In this third appeal, Falkenstein is

essentially challenging our holding in Falkenstein II — that the lack of a proper

postrelease advisement in the judgment entry can be remedied by a corrected judgment

entry reflecting the proper imposition of postrelease control.

{¶14} Filing an appeal from the trial court’s judgment that merely carried out our

mandate is not the proper procedural vehicle for having this court reconsider its prior

decision. To properly challenge our holding in Falkenstein II, Falkenstein should have

appealed our decision in Falkenstein II to the Supreme Court of Ohio. He did not.

{¶15} Furthermore, even if, for argument’s sake, we were to reconsider our

decision in Falkenstein II, we note that after this court issued Falkenstein II, the Supreme

Court of Ohio, in State v. Qualls,

,

,

,

specifically approved the use of a nunc pro tunc order to correct a flawed sentencing entry

that had omitted proper postrelease control notification, where the notification had been

given at the sentencing hearing. This case falls into that category, because of a presumption of regularity that arises from a lack of demonstration otherwise by the

appellant, as we noted in Falkenstein II.

{¶16} Since the 2012 Qualls decision, this court has consistently applied Qualls to

allow the use of a nunc pro tunc entry to correct a defective sentencing entry. See, e.g.,

State v. Cvijetinovic, 8th Dist. Cuyahoga No. 99316,

(the trial court

properly advised a defendant of postrelease control at the sentencing hearing, but failed to

include it in the sentencing journal entry, and the omission can be corrected nunc pro

tunc); State v. Robinson, 8th Dist. Cuyahoga No. 97951,

(the sentencing

entry did not mention postrelease control, and this court remanded the matter for a nunc

pro tunc entry to reflect the proper imposition of postrelease control); State v. Williamson,

8th Dist. Cuyahoga No. 99473,

(where a defendant failed to

demonstrate a deficient postrelease control notification at the sentencing hearing but the

judgment entry omitted a full notification, the defendant was not entitled to a new

sentencing hearing and a nunc pro tunc entry may be used to correct any omission).

{¶17} In Falkenstein II, we modified appellant’s sentence and remanded the case

for the trial court to correct the sentencing entry. Although we did not specifically use

the term “nunc pro tunc,” our instructions regarding the trial court’s duty on remand is

consistent with Qualls.

{¶18} Falkenstein’s assignment of error lacks merit. The judgment of the trial

court is affirmed.

It is ordered that appellee recover of appellant 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 common

pleas court to carry this judgment into execution. Case remanded to the trial court for

execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ TIM McCORMACK, JUDGE

MELODY J. STEWART, A.J., and PATRICIA ANN BLACKMON, J., CONCUR