[Cite as State v. Seals, 2012-Ohio-509.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010CA117
vs. : T.C. CASE NO. 08CR0828A
JONATHAN SEALS :
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 10th day of February, 2012.
. . . . . . . . .
Andrew Wilson, Pros. Attorney; Andrew R. Picek, Asst. Pros.
Attorney, Atty. Reg. No. 0082121, 50 East Columbia Street, 4th
Floor, Springfield, OH 45502
Attorneys for Plaintiff-Appellee
Brock A. Schoenlein, Atty. Reg. No. 0084707, 15 West Fourth Street,
Suite 100, Dayton, OH 45402
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Jonathan Seals, was found guilty following
a jury trial of aggravated murder, murder, felony murder, tampering
with evidence, and felonious assault. The trial court sentenced
Defendant to thirty-three years to life in prison, and indicated
that with respect to the tampering with evidence offense, Defendant
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would be subject to five years of mandatory postrelease control.
{¶ 2} On direct appeal we affirmed Defendant’s convictions
but vacated his sentence due to an error in the imposition of
postrelease control. We remanded the matter for resentencing for
the trial court to properly inform Defendant that with respect
to his conviction for tampering with evidence, a third degree
felony, he is subject to an optional three year term of postrelease
control under R.C. 2967.28(C), not a mandatory five year term as
originally stated by the court. State v. Seals, 2nd Dist Clark
No. 2009CA4, 2010-Ohio-2843.
{¶ 3} On November 22, 2010, on remand from this court, the
trial court conducted a resentencing hearing that was limited to
the proper imposition of postrelease control on the tampering with
evidence charge. Defendant did not object to the limited scope
of the resentencing hearing.
{¶ 4} Defendant timely appealed to this court from his
resentencing hearing. Defendant’s appellate counsel has filed
an Anders brief, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,
19 L.Ed.2d 493 (1967), stating that he could find no meritorious
issues for appellate review. We notified Defendant of his
appellate counsel’s representations and afforded him ample time
to file a pro se brief. None has been received. This case is
now before us for our independent review of the record. Penson
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v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
{¶ 5} Defendant’s appellate counsel has identified one
possible issue for appeal, which states:
{¶ 6} “THE TRIAL COURT MAY HAVE ERRED IN FAILING TO RESENTENCE
MR. SEALS DE NOVO.”
{¶ 7} Defendant argues that he was entitled to a de novo
resentencing hearing to correct the trial court’s error in failing
to properly impose postrelease control. That claim lacks arguable
merit.
{¶ 8} R.C. 2929.191, effective July 11, 2006, proscribes a
procedure for trial courts to follow to remedy a sentence that
fails to properly impose postrelease control. The hearing
contemplated by R.C. 2929.191(C) and the correction contemplated
by R.C. 2929.191(A) and (B) pertain only to the flawed imposition
of postrelease control and do not address the remainder of an
offender’s sentence. That demonstrates the General Assembly’s
intent to leave undisturbed any other sanctions imposed that are
unaffected by the court’s failure to properly impose postrelease
control at the sentencing hearing. State v. Singleton, 124 Ohio
St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 24. In deciding
whether R.C. 2929.191 would apply retroactively or prospectively
only, the Supreme Court stated in its syllabus in Singleton:
1. For criminal sentences imposed prior to July
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11, 2006, in which a trial court failed to properly impose
postrelease control, trial courts shall conduct a de
novo sentencing hearing in accordance with decisions
of the Supreme Court of Ohio.
2. For criminal sentences imposed on and after July
11, 2006, in which a trial court failed to properly impose
postrelease control, trial courts shall apply the
procedures set forth in R.C. 2929.191.
In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, the Ohio Supreme Court held that in cases where the
sentence omits a statutorily mandated term of postrelease control,
or contains an erroneous provision in that regard, only that part
of the sentence is void and must be corrected, and the remainder
of the sentence remains valid. Therefore, a complete de novo
resentencing is not required. Rather, the resentencing is limited
to correcting the defect in the postrelease control. Id., at ¶
17. This court has held likewise. State v. Jenkins, 2nd Dist.
Montgomery No. 24117, 2011-Ohio-634, ¶ 7-8.
{¶ 9} Defendant was originally sentenced on or about January
9, 2009, after the enactment of R.C. 2929.191. Defendant was
resentenced on November 22, 2010, pursuant to R.C. 2929.191, to
correct a defect in the imposition of postrelease control. The
prevailing law in effect at that time was State v. Singleton, and
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pursuant to that decision Defendant is clearly not entitled to
a de novo resentencing hearing to correct an error in the trial
court’s imposition of postrelease control. Id., at syllabus and
¶ 24. Accord: State v. Fischer. Rather, the resentencing
hearing was properly limited to correcting the defect in
postrelease control. R.C. 2929,191; Singleton. Accord: Fischer.
This assignment of error lacks arguable merit.
{¶ 10} In addition to reviewing the possible issues for appeal
raised by Defendant’s appellate counsel, we have conducted an
independent review of the trial court’s proceedings and have found
no error having arguable merit. Accordingly, Defendant’s appeal
is without merit and the judgment of the trial court will be
affirmed.
FROELICH, J., And HALL, J., concur.
Copies mailed to:
Andrew R. Picek, Esq.
Brock A. Schoenlein, Esq.
Jonathan Seals
Hon. Richard J. O’Neill