[Cite as State v. Cowan,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103855

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

CRAIG COWAN DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-11-550536-A

BEFORE: Kilbane, P.J., Stewart, J., and Blackmon, J.

RELEASED AND JOURNALIZED: December 8, 2016 ATTORNEY FOR APPELLANT

John T. Castele Rockefeller Building, Suite 1310 614 W. Superior Avenue Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor Brett Hammond Assistant County Prosecutor The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, P.J.:

{¶1} Defendant-appellant, Craig Cowan (“Cowan”), appeals from the trial

court’s November 15, 2015 imposition of postrelease control. For the reasons set forth

below, we reverse and remand for proper postrelease control notification and correction

of the sentencing journal entry.

{¶2} This is the sixth appeal from Cowan’s 2012 convictions for felonious

assault, having a weapon while under disability, improperly handling firearms in a motor

vehicle, discharging a firearm on or near a prohibited premises, and various

specifications. Cowan was sentenced to eight years, plus three for a firearm

specification on the felonious assault conviction, three years for having a weapon while

under disability, one year for improperly handling a firearm in a motor vehicle, and three

years for discharging a firearm on or near a prohibited premises. The terms were

ordered to be served consecutively, for a total of 18 years.

{¶3} The sentencing entry issued on January 23, 2012, indicated that Cowan was

convicted of felonious assault in violation of R.C. 2903.11(A)(2), an “F1,”1 having a

weapon while under disability, improperly handling firearms in a motor vehicle,

discharging a firearm on or near a prohibited premises, and various specifications. On

appeal, this court affirmed the conviction but reversed and remanded for the trial court to

consider whether consecutive sentences are appropriate under H.B. 86, and if so, to enter

1 A conviction for felonious assault under R.C. 2903.11(A)(2) is actually a felony of the second degree. R.C. 2903.11(D)(1). the proper findings on the record. See State v. Cowan, 8th Dist. Cuyahoga No. 97877,

(“Cowan I”).

{¶4} On February 8, 2013, the trial court held a resentencing hearing and

imposed the same 18-year sentence. Cowan again appealed, and this court again

reversed for a “new sentencing hearing” in order for the trial court to “strictly comply

with the requirements of R.C. 2929.14(C)(4) prior to the re-imposition of consecutive

sentences.” See State v. Cowan, 8th Dist. Cuyahoga No. 99566,

(“Cowan II”).

{¶5} Another resentencing hearing was held on November 22, 2013, and the trial

court reimposed the same consecutive sentence totaling 18 years. The journal entry

issued on this date again indicated that Cowan was convicted of felonious assault in

violation of R.C. 2903.11(A)(2), an “F1,” having a weapon while under disability,

improperly handling firearms in a motor vehicle, discharging a firearm on or near a

prohibited premises, and various specifications. Cowan again appealed and asserted: (1)

the trial court erroneously imposed postrelease control and consecutive sentences; (2) he

had been subjected to double jeopardy; and (3) the sentence was disproportionate to his

offenses. This court concluded that the trial court failed to properly reimpose

postrelease control, and that the remaining assignments of error were barred by res

judicata. State v. Cowan, 8th Dist. Cuyahoga No. 100741,

(“Cowan III”). This court remanded for “the sole purpose of advising Cowan of postrelease control requirements and memorializing same in a judgment entry.” Cowan

III at ¶ 18.

{¶6} Another hearing occurred on September 16, 2014. At this time, the trial

court stated:

THE COURT: And at this time[,] I want to remind you that beyond that sentence you’re also subject to what we call post-release control. So upon your release from prison, you will be subject to what is called post-release control, which is like parole, for a period of up to five years, reducible at the discretion of the Parole Board. And if you violate that post-release control, they can take you back for an additional nine months without a trial. That’s all. You have a right to appeal if you want. (Tr. 4-5.) (Emphasis added.)

{¶7} The sentence was then journalized to again indicate that Cowan had been

convicted of felonious assault in violation of R.C. 2903.11(A)(2), an “F1,” having a

weapon while under disability, improperly handling firearms in a motor vehicle,

discharging a firearm on or near a prohibited premises, and various specifications.

Cowan appealed from the September 16, 2014 hearing and order.2 Cowan challenged

the trial court’s “findings” and the imposition of postrelease control. This court

concluded that

the only issue before us following our remand in Cowan III, is the imposition of postrelease control. Cowan III at ¶ 18. * * *

2 During the pendency of that appeal, on April 7, 2015, the trial court held an additional hearing in which it again advised Cowan of postrelease control and informed him that he was subject to a mandatory five-year term of postrelease control and that the Parole Authority could modify or extend the supervision, make it more restrictive, or incarcerate him for up to one-half of the original sentence imposed by the trial court. On April 24, 2015, Cowan filed an appeal from this order, but the appeal was dismissed for failure to file the record. State v. Cowan, 8th Dist. Cuyahoga No. 102938 (June 17, 2015) (“Cowan IV”). The state of Ohio concedes that the trial court should have said that Cowan

“could have received an additional nine years” rather than “an additional

nine months.” *** The matter must be remanded for the sole purpose

of advising Cowan of the proper postrelease control requirements and

memorializing those requirements into a judgment entry. The sentence is

affirmed in all other respects.

State v. Cowan, 8th Dist. Cuyahoga No. 101995,

, ¶ 9-15 (“Cowan V”).

{¶8} On November 15, 2015, following our limited remand, the trial court held a

hearing on the sole issue of imposing postrelease control. Cowan was represented by

counsel, and the trial court advised Cowan as follows:

[F]or the record, a couple things, there was sentencing handed down on this case on November 22, 2013, [the judge] handed down a sentence of 18 years after a jury came back. The jury found you guilty of felonious assault, a felony of the first degree [sic],3 with firearm specs, both a one- and three-year spec.

You were also found guilty of discharging a firearm on or about or near a prohibited premises, a felony of the first degree [sic],4 as well, as charged in Count 9 of the indictment.

And the jury found you guilty of having weapon while under disability with a forfeiture specification that was Count 7.

Jury found you guilty of improperly handling a firearm in a motor vehicle, that’s a felony of the fourth degree, that’s Count 8.

3 See fn. 1. 4 See fn. 1. ***

So let me explain. Any felony of the first degree in the State of Ohio has mandatory postrelease control for five years. * * * So you’re going to have five years of postrelease control, Mr. Cowan. That five years of post release control is mandatory. So when you finish your term of incarceration the Parole Authority is going to supervise you for five years. * * *

If they violate you, they could send you back to prison, * * * And under the law, you could receive up to one-half the time that [you received] originally as a sanction. * * * And you could get an additional 9 years, one-half of 18 years, if you violate postrelease control, and if the Parole Authority wanted to impose it, they could impose a total of 9 years, one-half [of] the 18 years; do you understand that?

THE DEFENDANT: Yes, I do.

{¶9} Cowan again appeals, and presents the sole assignment of error for our

review:

Assignment of Error

[Cowan] asserts that he has been deprived of his right to due process when

the trial court has repeatedly failed to properly impose postrelease control

and has erroneously sentenced him to a mandatory five-year period of

postrelease control contrary to law.

{¶10} Within this assignment of error, Cowan notes that the trial court erred in

determining that his convictions for felonious assault and discharging a weapon near

prohibited premises are first-degree felonies, and erred in imposing a mandatory five-year

period of postrelease control. He additionally argues that in light of the fact he has had

five sentencing hearings and that this aspect of the sentence remains incorrect, his right to

due process of law has been violated thereby barring the trial court from imposing postrelease control in this matter. The state concedes that a conviction for felonious

assault in violation of R.C. 2903.11(A)(2) is, in fact, a felony of the second degree. See

R.C. 2903.11(D)(1). The eight-year prison term for this offense is within the

appropriate range for a felony of the second degree; however, it is the maximum term.

R.C. 2929.14(A)(2). The state also concedes that Cowan may only be sentenced to a

three-year period of postrelease control and not a mandatory five-year period. However,

the state does not concede that this error precludes further imposition of postrelease

control because Cowan has not completed his sentence.

Postrelease Control

{¶11} A conviction for felonious assault under R.C. 2903.11(A)(2) is a felony of

the second degree. R.C. 2903.11(D)(1). A conviction for having a weapon while

under disability is a felony of the third degree. R.C. 2923.13(B). A conviction for

improperly handling firearms in a motor vehicle under R.C. 2923.16(B) is a felony of the

fourth degree. R.C. 2923.16(I). A conviction for discharging a firearm on or near a

prohibited premises under R.C. 2923.162(A)(3) is a felony of the third degree. R.C.

2923.162(C). Therefore, the most serious offense that Cowan committed is a felony of

the second degree. As a result, under R.C. 2967.28(B), the period of postrelease control

that is to be imposed is three years.

{¶12} The state concedes that the trial court erred in imposing a mandatory

five-year period of postrelease control, and the correct term is three years. A sentence that

fails to comply with the statutory requirements of postrelease control is void only as to postrelease control and must be rectified only in that aspect, unless the defendant has

completed his sentence. State v. Fischer,

,

,

, ¶ 17; State v. Simpkins,

,

,

, ¶ 6; State v. Singleton,

,

,

. The

postrelease control notifications must be provided at the sentencing hearing and must also

be incorporated into the sentencing entry. State v. Qualls,

,

,

, ¶ 18-19; R.C. 2929.191.

{¶13} Here, the state has conceded that the postrelease control notification was

erroneous and, following our independent review, this portion of the assignment of error

is well taken. We additionally note that Cowan has not completed his sentence and,

therefore, the error may be rectified.

Due Process

{¶14} As to whether Cowan has suffered a due process violation that bars

correction of the sentence, we note that the term “due process” lacks a precise, technical

definition and is instead a flexible concept. In re C.S.,

,

,

. The C.S. court explained:

“[T]he phrase expresses the requirement of ‘fundamental fairness,’ a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise which must discover what ‘fundamental fairness’ consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.”

quoting Lassiter v. Dept. of Social Servs. of Durham Cty., North Carolina,

,

,

(1981). {¶15} In considering the “relevant precedents,” we note that “[w]hen a judge fails

to properly impose statutorily mandated postrelease control as part of a defendant’s

sentence, the postrelease-control sanction is void.” State v. Holdcroft,

,

,

, paragraph two of the syllabus, applying Fischer,

,

,

. The trial court retains jurisdiction to

correct the flawed imposition of postrelease control while the defendant is still in prison

on that offense.

. The Holdcroft court noted that the legislature held

that in enacting R.C. 2929.191, the legislature set forth a procedure whereby postrelease

control may be properly authorized and given effect, even though initial notification was

inadequate if the offender has not been released from prison “under the prison term the

court imposed.” Id. at ¶ 31.

{¶16} As to a defendant’s expectation of finality, the Holdcroft court noted that

“the power of a sentencing court to correct even a statutorily invalid sentence must be

subject to some temporal limit,” and held that “once an offender has been released from

prison, he cannot be subjected to another sentencing to correct the trial court’s flawed

imposition of postrelease control.”

, citing State v. Bloomer,

,

,

, and Simpkins,

,

,

, syllabus, ¶ 38.

{¶17} Finally, the Holdcroft court held that the court may correct the void sanction

where the defendant is still serving his prison term “without offending the Double

Jeopardy or Due Process Clauses” since there is “no unfair surprise or prejudice” to the defendant who does not have a legitimate expectation of finality in that situation. Id. at

¶ 17, quoting Simpkins,

,

,

.

{¶18} Applying the foregoing, we conclude that while the repeated resentencing

hearings have undoubtedly been frustrating for Cowan, they do not rise to the level of a

due process violation that bars the imposition of postrelease control in this matter. The

additional error cited herein, that Cowan was erroneously deemed to have committed

first-degree felony felonious assault, has appeared in each of the relevant sentencing

entries going back to 2012. Thus, it is not a new error, but rather an error that is only

now being brought to the court’s attention for review. Further, it is undisputed that

Cowan has not completed his sentence so it is subject to correction under Qualls,

,

,

.

{¶19} Accordingly, we conclude that it does not offend concepts of fundamental

fairness to remand this matter for the sole purpose of correcting the sentencing journal

entry to reflect the correct felony levels of the offenses, advise Cowan of the proper

postrelease control requirements, and memorialize those requirements into a judgment

entry.

{¶20} Judgment is reversed and remanded for postrelease control notification and

correction of the sentencing journal entry.

It is ordered that appellant recover of appellee 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.

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

the Rules of Appellate Procedure.

MARY EILEEN KILBANE, PRESIDING JUDGE

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