State v. Adams

[Cite as State v. Adams, 2013-Ohio-1433.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )
) CASE NO. 12 MA 26
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
DuJUAN ADAMS, )
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 00 CR 102.

JUDGMENT: Affirmed.

APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Assistant Prosecuting Attorney
21 W. Boardman St., 6th Floor
Youngstown, OH 44503

For Defendant-Appellant: Attorney Lynn Maro
7081 West Boulevard
Youngstown, OH 44512

JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich

Dated: March 25, 2013
[Cite as State v. Adams, 2013-Ohio-1433.]
DeGenaro, P.J.
{¶1} Defendant-Appellant, DuJuan Adams, appeals the decision of the Mahoning
County Court of Common Pleas, issuing a nunc pro tunc judgment entry to properly
impose post-release control following a limited resentencing hearing. On appeal, Adams
presents several constitutional challenges to his resentencing pursuant to R.C. 2929.191.
He also argues that because the indictment, sentencing entries, and other pleadings were
not properly filed, the trial court lacked subject matter jurisdiction and its judgment is void.
{¶2} Adams' arguments are meritless. Adams has not proven beyond a
reasonable doubt that R.C. 2929.191 is clearly unconstitutional nor has he shown that the
trial court erred in resentencing him pursuant to the statutory sentence-correction
mechanism. Moreover, the date-stamp on the pleadings indicates that they were properly
filed with the clerk of courts. Accordingly, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶3} In August 2000, Adams was convicted of two counts of attempted murder
(R.C. 2923.02(A)(E) and 2903.02(A)(D)), both first-degree felonies with R.C. 2941.145(A)
firearm specifications, following a jury trial in the Mahoning County Court of Common
Pleas. Adams filed a timely direct appeal, which was dismissed for failure to prosecute
pursuant to App.R. 18(C). On April 22, 2005 Adams' delayed application to reopen his
appeal was granted; his convictions were affirmed, but his sentence was vacated and
remanded for resentencing pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,
845 N.E.2d 470. State v. Adams, 7th Dist. No. 00 CA 211, 2006-Ohio-1761 (Adams I).
Adams was resentenced on October 20, 2006, which was affirmed in State v. Adams, 7th
Dist. No. 06 MA 179, 2007-Ohio-5352 (Adams II).
{¶4} On March 28, 2011, Adams filed a pro-se motion in the trial court seeking a
de novo sentencing hearing, arguing that his sentence was void because the October
2006 sentencing entry did not comply with State v. Baker, 119 Ohio St.3d 197, 2008-
Ohio-3330, 893 N.E.2d 163 and did not include his applicable term of post-release
control. The trial court overruled this motion and Adams appealed. On appeal, the
matter was remanded for a resentencing hearing regarding the limited issue of post-
release control pursuant to R.C. 2929.191(C), and for the trial court to enter a corrected
 -2-

sentencing entry with Adams' post-release control requirements and the manner of his
conviction pursuant to Baker. State v. Adams, 7th Dist. No. 11 MA 65, 2011-Ohio-6428
(Adams III).
{¶5} Upon remand, during a January 26, 2012 resentencing hearing the trial
court advised Adams that upon his release from prison, he would be subject to a
mandatory term of five years of post-release control, and the consequences of violating
post-release control. Adams raised several issues at the hearing, including that his
sentencing entries were not time-stamped. The trial court declined to address any issues
other than as directed by this court. On January 27, 2012, the trial court issued a nunc
pro tunc judgment entry of sentence that specified the manner of Adams' conviction
pursuant to Baker and included the proper post-release control notification.
Constitutionality of R.C. 2929.191
{¶6} Adams asserts four assignments of error on appeal. As the first three
challenge the constitutionality of his resentencing under R.C. 2929.191, they will be
addressed together:
{¶7} "The trial court erred in resentencing Appellant pursuant to the procedures
in R.C. § 2929.191 as R.C. §2929.191 is unconstitutional in that it violates the separation
of powers and Section 5(B), Article IV of the Ohio Constitution."
{¶8} "R.C. §2929.191, violates the Double Jeopardy Clause of the Fifth
Amendment and the Due Process Clause of the Fourteenth Amendment to the United
States Constitution and Ohio Constitution, Article I, §10, 16."
{¶9} "The trial court erred in sentencing Appellant under R.C. § 2929.191, in
violation of the ex post facto provisions of the Ohio and United States Constitutions."
{¶10} Adams argues that his resentencing pursuant to R.C. 2929.191 violates: 1)
the separation of powers doctrine and Section 5(B), Article IV of the Ohio Constitution; 2)
the Double Jeopardy Clause of the United States Constitution and the Due Process
Clause of the United States and Ohio Constitutions; and 3) the Ex Post Facto provisions
of the United States and Ohio Constitutions.
{¶11} R.C. 2967.28(B) provides in part that a sentencing court imposing a prison
 -3-

term on a first-degree felony offender "shall include a requirement that the offender be
subject to a period of post-release control imposed by the parole board after the
offender's release from imprisonment." The trial court must notify the offender regarding
post-release control at the sentencing hearing and must include this notification in the
sentencing entry. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio- 6085, 817 N.E.2d 864,
paragraph one of the syllabus.
{¶12} The Ohio Supreme Court has instructed that when a "judge fails to impose
statutorily mandated postrelease control as part of a defendant's sentence, that part of
the sentence is void and must be set aside." State v. Fischer, 128 Ohio St.3d 92, 2010-
Ohio-6238, 942 N.E.2d 332, ¶26. For "sentences imposed on and after July 11, 2006, in
which a trial court failed to properly impose post-release control, trial courts shall apply
the procedures set forth in R.C. 2929.191." State v. Singleton, 124 Ohio St.3d 173, 2009-
Ohio-6434, 920 N.E.2d 958, paragraph two of the syllabus. R.C. 2929.191 does not
afford de novo sentencing hearings for defendants sentenced after July 11, 2006; rather,
the resentencing pertains only to the flawed imposition of post-release control. Id. at ¶24.
{¶13} The sentence-correction mechanism of R.C. 2929.191 provides that:

At any time before the offender is released from imprisonment under that
term and at a hearing conducted in accordance with division (C) of this
section, the court may prepare and issue a correction to the judgment of
conviction that includes in the judgment of conviction the statement that the
offender will be supervised under section 2967.28 of the Revised Code
after the offender leaves prison. * * *

Before a court holds a hearing pursuant to this division, the court shall
provide notice of the date, time, place, and purpose of the hearing to the
offender who is the subject of the hearing, the prosecuting attorney of the
county, and the department of rehabilitation and correction. * * * At the
hearing, the offender and the prosecuting attorney may make a statement
as to whether the court should issue a correction to the judgment of
 -4-

conviction.

R.C. 2929.191(A)(1), and (C).
{¶14} Statutes enacted in Ohio are presumed to be constitutional unless it is
proven beyond a reasonable doubt that the legislation is clearly unconstitutional. State v.
Williams, 88 Ohio St.3d 513, 521, 728 N.E.2d 342 (2000).
{¶15} Adams did not specifically challenge the constitutionality of R.C. 2929.191
before the trial court nor did he argue that the statute as applied to his case was
unconstitutional. At the January 26, 2012 resentencing hearing, he did allege that:

[Adams III] said I was entitled to a sentencing entry that comports with
Baker and to a resentencing hearing and to a revised sentencing entry to
correct post-release control status pursuant to 2929.191(C), both which
apply retroactively to Adams’ 2000 and 2006 Foster resentencing hearing.
Both of them two sentencing entries was void for the PRC and Baker and
both of them wasn’t never timestamped. * * * So both of them was void
from the beginning. Like my whole sentence was unconstitutional since
2000. Both of them – that Foster law was unconstitutional and the one for
2000.

(Tr. 12-13).
{¶16} "Failure to raise at the trial court level the issue of the constitutionality of a
statute or its application, which issue is apparent at the time of trial, constitutes a waiver
of such issue and a deviation from this state's orderly procedure, and therefore need not
be heard for the first time on appeal." State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277
(1986), at syllabus. However, the Ohio Supreme Court has recognized that this waiver
doctrine is discretionary. In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), at
syllabus. Since Adams has generally challenged the constitutionality of his sentence, we
exercise the discretion to address the challenge.
{¶17} First, Adams argues that R.C. 2929.191 violates the separation of powers
 -5-

doctrine and Section 5(B), Article IV of the Ohio Constitution because the statutory
sentence-correction mechanism conflicts with Crim.R. 32 and Sup.R. 7 by permitting
resentencing for defendants years after the original conviction. Pursuant to Crim.R. 32,
the trial court shall impose a defendant's sentence without unnecessary delay. Crim.R.
32(A). Sup.R. 7(A) provides in part that "[t]he judgment entry specified * * * in Criminal
Rule 32 shall be filed and journalized within thirty days of the verdict, decree, or decision."
{¶18} "Section 5(B), Article IV of the Ohio Constitution vests [the Ohio Supreme
Court] with the power to 'prescribe rules governing practice and procedure in all courts of
the state, which rules shall not abridge, enlarge, or modify any substantive right' and
further provides that '[a]ll laws in conflict with such rules shall be of no further force or
effect after such rules have taken effect.'" State v. Bloomer, 122 Ohio St. 3d 200, 2009-
Ohio-2462, 909 N.E.2d 1254, ¶42.
{¶19} As to the statute's alleged conflict with Sup.R. 7, the Rules of
Superintendence are promulgated under Section 5(A)(1), Article IV of the Ohio
Constitution, not Section 5(B), and they do not override conflicting statutes. State v.
Keeble, 2d No. 03CA84, 2004-Ohio-3785, ¶17. Thus, any alleged conflict between
Sup.R. 7 and R.C. 2929.191 would not render the statute unconstitutional pursuant to
Section 5(B), Article IV.
{¶20} As to Crim.R. 32, Ohio courts have held that the mandate in Crim.R. 32(A)
that sentencing courts impose sentences "without unnecessary delay" does not apply to
resentencing to correct a post-release control error. See, e.g., State v. Wrenn, 9th Dist.
No. 25616, 2011-Ohio-5640, ¶8; State v. Lintz, 11th Dist. No. 2010-L-067, 2011-Ohio-
6511, ¶28; State v. Craddock, 8th Dist. No. 94387, 2010-Ohio-5782, ¶12-13.
Accordingly, R.C. 2929.191 does not conflict with Crim.R. 32(A), and Adams' separation
of powers argument is meritless.
{¶21} Next, Adams contends that his resentencing under R.C. 2929.191 violated
due process and the prohibition against double jeopardy and because he had an
expectation in the finality of his sentence protected by the Double Jeopardy and Due
Process clauses. However, the Ohio Supreme Court has acknowledged that "'there can
 -6-

be no reasonable, legitimate expectation of finality in [a void sentence].'" Bloomer at ¶28,
citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶36.
Moreover, Singleton specifically addressed this issue in relation to the prospective
application of R.C. 2929.191:

[P]rospective application of R.C. 2929.191 does not implicate double-
jeopardy concerns arising from the imposition of multiple punishments for
the same offense at successive proceedings. On or after the effective date
of R.C. 2929.191, an offender can have no legitimate expectation of finality
in a sentence rendered defective by the trial court's failure to properly
impose a mandatory term of postrelease control, because an offender is
charged with knowledge of the fact that his sentence is legally incomplete
and that R.C. 2929.191 provides a statutory mechanism to correct it.

Id. at ¶ 33.
{¶22} Accordingly, because the part of Adams' sentence improperly imposing
post-release control was void pursuant to Fischer, he did not have a legitimate
expectation of finality in his sentence and thus, his resentencing did not violate the Due
Process or Double Jeopardy clauses.
{¶23} Finally, Adams contends that when the trial court resentenced him, it
applied R.C. 2929.191 in an unconstitutionally retroactive manner as the statute became
effective in 2006 subsequent to Adams' original sentencing in 2000.
{¶24} However, in Adams III this court determined that R.C. 2929.191 applied to
his case because he received a de novo resentencing under Foster in 2006 after the
effective date of R.C. 2929.191:

Adams was sentenced on October 20, 2006, and subject to the sentence-
correction mechanism of R.C. 2929.191. See Singleton at ¶ 27. The fact
that his original sentence occurred before July 11, 2006 does not affect the
applicability of R.C. 2929.191(C) to this case. See State v. Craddock, 8th
 -7-

Dist. No. 94387, 2010–Ohio–5782 (applying R.C. 2929.191(C) where
defendant was originally sentenced before July 11, 2006, but resentenced
de novo pursuant to a Foster remand after that date.)

Adams III, 2011-Ohio-6428, at ¶16.
{¶25} Thus, the trial court's application of R.C. 2929.191 did not violate the Ex
Post Facto Clause because the statutory sentence-correction mechanism was in effect at
the time the trial court conducted the de novo resentencing pursuant to a Foster remand.
See also State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶69.
{¶26} Thus, the trial court's resentencing of Adams pursuant to R.C. 2929.191
was not unconstitutional. Accordingly, his first three assignments of error are meritless.
Subject Matter Jurisdiction of Trial Court
{¶27} In his fourth assignment of error, Adams argues:
{¶28} "The trial court was without subject matter jurisdiction over Appellant
because the indictment and subsequent pleadings, including the sentencing entries, were
not properly filed."
{¶29} Adams argues that because the pleadings in this matter were not properly
filed with the clerk of courts, the trial court lacked subject matter jurisdiction and thus, its
judgment is void ab initio. A review of the record reveals that the indictment, sentencing
entries, and other pleadings were date-stamped by the Mahoning County Clerk of Courts,
but these pleadings do not indicate the time of filing.
{¶30} Two statutes denote the information the common pleas court clerk indorses
on filings with that office; R.C. 2303.08 provides that the time of filing shall be noted,
whereas the date of filing shall be noted pursuant to R.C. 2303.10.
{¶31} The Ohio Supreme Court has explained that the filing of the complaint
invokes the jurisdiction of the trial court, but that a pleading is "filed" when it is properly
deposited with the clerk of courts. Zanesville v. Rouse, 126 Ohio St.3d 1, 2010-Ohio-
2218, 929 N.E.2d 1044, ¶5, 7, judgment vacated in part on reconsideration on other
grounds, 126 Ohio St.3d 1227, 2010-Ohio-3754, 933 N.E.2d 260. Once a pleading is
 -8-

filed, then the clerk's duty is to certify the act of filing. Id. at ¶7. A clerk's failure to file-
stamp a document does not create a jurisdictional defect, and when a pleading lacks an
endorsement from the clerk, filing may be proven by other means. Id. at ¶8, 10. In
Rouse, the Court concluded that there was sufficient evidence, such as the electronic
docket sheet and an affidavit from the clerk of courts, to show that the complaint was filed
with the clerk even though it lacked a time or date stamp. Id. at ¶10-11.
{¶32} Here, the indictment, sentencing entries, and other pleadings contain a
date-stamp by the Mahoning County Clerk of Courts. Based on the reasoning in Rouse, it
appears that this certification demonstrates that these documents were filed with the
clerk, regardless of the fact that they do not contain a time-stamp. Thus, the trial court
had subject matter jurisdiction over the case, and Adams' fourth assignment of error is
meritless.
Conclusion
{¶33} In sum, Adams' assignments of error are meritless. Adams has not proven
beyond a reasonable doubt that R.C. 2929.191 is clearly unconstitutional nor has he
shown that the trial court erred in resentencing him pursuant to the statutory sentence-
correction mechanism. Moreover, the date-stamp on the pleadings indicate that they
were properly filed with the clerk of courts. Accordingly, the judgment of the trial court is
affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.