[Cite as State v. Shinholster,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 27687

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE CHRISTOPHER SHINHOLSTER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2009-07-2264A

DECISION AND JOURNAL ENTRY

Dated: December 9, 2015

HENSAL, Presiding Judge.

{¶1} Defendant-Appellant, Christopher Shinholster, now appeals from the judgment of

the Summit County Court of Common Pleas. This Court affirms.

I.

{¶2} Following a jury trial, Mr. Shinholster was convicted of one count of possession

and one count of trafficking in regard to an amount of cocaine that equaled or exceeded 1,000

grams. Each count contained an attendant major drug offender specification, and the trial court

found him guilty of both specifications. The court sentenced Mr. Shinholster to a mandatory

term of ten years on his possession count and a mandatory term of five years on the major drug

offender specification linked to that count. Likewise, the court sentenced him to a mandatory

term of ten years on his trafficking count and a mandatory term of five years on the major drug

offender specification linked to that count. The court ordered each of the five-year terms to run

consecutively to each of the ten-year terms, but ordered the resulting 15-year terms to run 2

concurrently for a total sentence of 15 years in prison. On direct appeal, this Court affirmed Mr.

Shinholster’s convictions. See State v. Shinholster, 9th Dist. Summit No. 25328, 2011-Ohio-

2244. The Ohio Supreme Court declined to hear his appeal, and this Court denied his application

for reopening.

{¶3} Subsequently, Mr. Shinholster filed a writ of habeas corpus in the United States

District Court for the Northern District of Ohio. The district court denied the writ, but the Sixth

Circuit Court of Appeals determined that one of Mr. Shinholster’s grounds for relief had merit.

See Shinholster v. Bradshaw, 6th Cir. No. 14-3026 (Nov. 26, 2014). Specifically, it agreed that

his appellate counsel was ineffective for not assigning as error that he had been convicted of

allied offenses of similar import. Because the Sixth Circuit determined that Mr. Shinholster’s

possession and trafficking counts were allied offenses under Ohio law, it reversed the district

court’s judgment in part and remanded the matter to the district court for further proceedings.

On remand, the district court granted the writ on the basis that Mr. Shinholster had been

convicted of allied offenses. See Shinholster v. Bradshaw, N.D.Ohio No. 5:12 CV 2495 (Dec.

18, 2014). The district court ordered the trial court, within 90 days, “to determine which of [Mr.

Shinholster’s] two convictions and concurrent sentences to vacate.”

{¶4} Following the district court’s order, the trial court scheduled the matter for a

hearing and appointed counsel for Mr. Shinholster. Eight days later, Mr. Shinholster filed a pro

se motion entitled “Memorandum of House Bill 86’s Impact on Resentencing Hearing.” The

thrust of his motion was that, when resentencing him, the court had to apply the more lenient

sentencing laws that went into effect after his original sentence. The court, however, declined to

conduct a de novo sentencing hearing. Instead, the court informed the parties that, pursuant to

the order of the federal district court, it would simply vacate a portion of Mr. Shinholster’s 3

sentence once the State elected the offense on which it wished to proceed. Because the State

elected to proceed on Mr. Shinholster’s trafficking offense, the court left intact his 15-year

sentence on that offense and its attendant specification and vacated the 15-year sentence that it

had imposed upon him for the offense of possession and its attendant specification.

{¶5} Mr. Shinholster now appeals from the court’s judgment and raises three

assignments of error for our review. For ease of analysis, we consolidate two of the assignments

of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO CONDUCT A DE NOVO RESENTENCING HEARING TO REMEDY THE ALLIED-OFFENSE SENTENCING ERROR IDENTIFIED BY THE SIXTH CIRCUIT COURT OF APPEALS.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN FAILING TO APPLY THE LAW AS ESTALBISHED [SIC] UNDER OHIO HOUSE BILL 86 TO DEFENDANT’S RESENTENCING HEARING.

{¶6} In his first and second assignments of error, Mr. Shinholster argues that the court

erred when, upon remand from the federal district court, it did not conduct a de novo sentencing

hearing and sentence him based upon the sentencing laws in effect at the time of the hearing.

We disagree.

{¶7} If a trial court sentences an offender on allied offenses of similar import, the

resulting sentence is contrary to law, but it is not void. State v. Wilson, 9th Dist. Summit No.

27361,

, ¶ 11. The error merely renders the sentence voidable and subject to

correction. See

When a reviewing court reverses a judgment as a result of an allied offense

error, the court generally will vacate the affected portion of the sentence and remand the matter 4

for a de novo sentencing hearing at which the State will elect the offense(s) upon which it wishes

to proceed. See State v. Wilson,

,

; State v.

Whitfield,

,

, paragraphs one and two of the syllabus. Even so,

“a number of discretionary and mandatory limitations may apply to narrow the scope of a

particular resentencing hearing.” Wilson,

,

. For

example, “the sentences for any offenses that were not affected by the appealed error are not

vacated and are not subject to review.”

citing State v. Saxon,

, 2006-

Ohio-1245, paragraph three of the syllabus. See also State v. Stovall, 9th Dist. Medina No.

07CA0027-M,

(apart from correcting void sentences and clerical errors, trial

courts lack authority to reconsider their own valid final judgments).

{¶8} When issuing a writ of habeas corpus, “the choice of habeas remedy lies within

the district court’s sound discretion * * *.” Gentry v. Deuth,

(6th Cir. 2006).

Here, the district court chose to remand this matter to the trial court with an instruction to the

court to vacate one of Mr. Shinholster’s convictions. Mr. Shinholster did not appeal from the

district court’s ruling so as to challenge its choice of remedy, so he cannot now contest it. See

Ford Motor Credit Co., L.L.C. v. Collins, 8th Dist. Cuyahoga No. 101405,

(“Ohio constitutional and statutory law provides that [state appellate courts] have no jurisdiction

to * * * review federal district court decisions.”), citing State v. Fawcett,

(2000) and Sundstrom v. Sundstrom, 11th Dist. Ashtabula No. 2005-

. Moreover, the trial court could not simply ignore the district court’s mandate and conduct

his resentencing as it saw fit. See generally

; State v. Slagle, 2d Dist.

Montgomery No. 23934,

; Hegedus v. Hegedus, 8th Dist. Cuyahoga No.

42268,

, *1 (Dec. 24, 1980). The district court’s order essentially constituted a 5

mandatory limitation on the scope of Mr. Shinholster’s particular resentencing hearing. See

Wilson,

,

.

{¶9} Unlike the defendants in the allied offense cases upon which he relies, Mr.

Shinholster exhausted his state court remedies without obtaining a reversal of his judgment of

conviction. Accordingly, no court in this State vacated any portion of his sentence or remanded

this matter for a de novo sentencing hearing. Had Mr. Shinholster’s judgment of conviction been

reversed and his sentences vacated pursuant to that determination, the trial court would have

been obligated to conduct a de novo sentencing. See id. at ¶ 13-15. However, Mr. Shinholster

obtained relief through a writ of habeas corpus, and, in granting his writ, the district court did not

vacate any portion of his sentence. Instead, the district court ordered the trial court, within 90

days, “to determine which of [his] two convictions and concurrent sentences to vacate.” By

allowing the State to elect the offense upon which it wished to proceed and then vacating Mr.

Shinholster’s other offense, the trial court complied with the mandate of the district court and did

not exceed its authority upon remand. Mr. Shinholster has not shown that the trial court erred by

resentencing him in accordance with the federal district court’s mandate. See App.R. 16(A)(7).

Accordingly, his first and second assignments of error are overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITED [SIC] REVERSABLE [SIC] ERROR WHEN IT DENIED DEFENSE COUNSEL’S REQUEST FOR A CONTINUANCE TO REVIEW THE FEDERAL COURT’S GRANT OF HABEAS CORPUS AND THE MEMORANDUM FILED PRO SE BY SHINHOLSTER REGARDING HOUSE BILL 86.

{¶10} In his third assignment of error, Mr. Shinholster argues that the trial court erred

when it did not give his appointed counsel additional time to review the pro se motion he filed, 6

which was entitled “Memorandum of House Bill 86’s Impact on Resentencing Hearing.” We

disagree.

{¶11} “Because the decision to grant or deny a continuance lies within the sound

discretion of the trial court, such decision will not be reversed absent a showing of an abuse of

discretion.” State v. Bennett, 9th Dist. Lorain No. 12CA010286,

. An abuse

of discretion connotes that a trial court was unreasonable, arbitrary, or unconscionable in its

ruling. Blakemore v. Blakemore,

(1983).

{¶12} The record reflects that Mr. Shinholster’s appointed counsel asked the court for a

continuance strictly to review the pro se motion that Mr. Shinholster had filed. The thrust of the

motion was that, in resentencing him, the trial court should apply the more lenient sentencing

laws that the legislature had enacted since his original sentence. As previously noted, however,

this matter was not remanded to the trial court for it to conduct a de novo sentencing. Instead,

the federal district court ordered the trial court to vacate one of Mr. Shinholster’s allied offense

convictions. Because the trial court was limited to simply vacating one of his convictions, we

cannot say it was unreasonable for the court to refuse to continue the matter so that Mr.

Shinholster’s counsel could review a motion that related solely to a de novo sentencing.

{¶13} Moreover, Mr. Shinholster filed his pro se motion eight days after the trial court

appointed counsel to represent him. “[T]his Court has concluded that a defendant who is

represented by counsel may not file pro se motions.” State v. Burks, 9th Dist. Summit No.

27423,

, ¶ 9. A defendant does not have a right to dual representation and such

motions are “not properly before the trial court.” State v. Rice, 9th Dist. Medina No. 08CA0054-

M,

, ¶ 8. Accordingly, even if the trial court had given Mr. Shinholster’s 7

counsel additional time to review the pro se motion, the motion was not properly before the

court. See

Mr. Shinholster’s third assignment of error is overruled.

III.

{¶14} Mr. Shinholster’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.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

WHITMORE, J. MOORE, J. CONCUR. 8

APPEARANCES:

JENNIFER A. CUNDIFF, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.