[Cite as State v. Dzelajlija, 2011-Ohio-6445.]
[Vacated opinion. Please see 2012-Ohio-913.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95851
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMES DZELAJLIJA
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED, SENTENCE VACATED, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-478630
BEFORE: Kilbane, A.J., Boyle, J., and Rocco, J.
RELEASED AND JOURNALIZED: December 15, 2011
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue - Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Sanjeev Bhasker
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, James Dzelajlija, appeals from the order of the trial
court that reinstated his sentences for robbery, following this court’s reversal of the
robbery convictions and remand for a new trial. Although subsequent case law makes it
clear that a new trial is no longer necessary, we conclude that the trial court committed
reversible error and acted beyond its mandate in reinstating the sentences for the
convictions that we vacated. Therefore, the decision must be reversed and the matter
remanded to the trial court for further proceedings consistent with this opinion.
{¶ 2} On March 23, 2006, defendant was indicted on two counts of robbery and
receiving stolen property, in connection with the September 30, 2005 robbery of a
furniture store employee who was making a night deposit. Defendant was convicted of
the robbery charges and sentenced to concurrent seven-year terms of imprisonment, plus
five years of postrelease control. This court determined that the trial court admitted
inadmissible and prejudicial opinion evidence as to a witness’s truthfulness and reversed
and remanded for a new trial. State v. Dzelajlija, Cuyahoga App. No. 88805,
2007-Ohio-4050 (Dzelajlija I).
{¶ 3} Defendant was again convicted of both robbery charges following the
retrial, and on February 21, 2008, he was sentenced to a seven-year term of imprisonment
and a concurrent five-year term of imprisonment, plus three years of postrelease control.
The court additionally ordered this sentence to be served consecutively to an unrelated
conviction in Case No. CR-475938.
{¶ 4} Defendant appealed to this court, asserting that the indictments were
defective under State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917
(Colon I) and State v. Colon, 119 Ohio St.3d 204, 2008-Ohio 3749, 893 N.E.2d 169
(Colon II), and that his convictions were against the manifest weight of the evidence.
{¶ 5} This court concluded that the indictments were defective under State v.
Colon I, and Colon II for failing to charge defendant with the requisite mens rea of
recklessness. This court therefore again reversed defendant’s convictions and remanded
the matter for a new trial pursuant to properly formed indictments and remanded the
matter to the trial court. This court additionally determined that since the defective
indictments constituted structural error, defendant’s challenge to the weight of the
evidence supporting his convictions was moot. State v. Dzelajlija, Cuyahoga App. No.
91115, 2009-Ohio-1072 (Dzelajlija II).
{¶ 6} On May 20, 2009, the matter was returned to the docket of the trial judge.
At this time, however, defendant was imprisoned in connection with Case No.
CR-475938. Retrial was scheduled for September 14, 2010. On August 27, 2010,
however, the Ohio Supreme Court decided State v. Horner, 126 Ohio St.3d 466,
2010-Ohio-3830, 935 N.E.2d 26. In Horner, the court overruled Colon I and Colon II,
and held that where an indictment charges an offense by tracking the language of the
criminal statute, it is not defective for failure to identify a culpable mental state when the
statute itself fails to specify a mental state.
{¶ 7} On September 14, 2010, the trial court held a hearing in this matter to
determine the effect of the Horner decision in relation to our prior mandate in Dzelajlija
II. The record of this hearing indicates that the file was not returned to the trial court
until May 2009. At that time, the court learned that the State intended to retry defendant
but the following month, the Ohio Supreme Court released its decision in Horner, which
overruled Colon I and Colon II.
{¶ 8} The prosecuting attorney maintained that because defendant remained
imprisoned in Case No. CR-475938, and did not file a detainer to be brought back for
retrial, defendant’s speedy trial rights had not been violated. He additionally argued that
the Horner decision authorized the trial court to disregard this court’s 2009 reversal and
remand and permitted the trial court to reimpose its sentence.
{¶ 9} In opposition, the defense asserted that the trial court was under a mandate
to act in a timely manner, did not do so, and the resulting prejudice occurred when the
Supreme Court issued its decision in Horner.
{¶ 10} Following the hearing, the trial court concluded that defendant was not
prejudiced by the delay in scheduling a retrial, and that the Horner decision constituted
extraordinary circumstances that justified the reimposition of the sentence that had been
imposed on February 21, 2008, without holding another trial. The court then reimposed
that sentence. Defendant now appeals and assigns four errors for our review. For the
sake of convenience, we begin with the third assignment of error that provides:
“Res judicata and collateral estoppel preclude the State from
relitigating the validity of Dzelajlija’s indictment when it failed to
appeal that issue to the Ohio Supreme Court.”
{¶ 11} Within this assignment of error, defendant asserts that because the State did
not challenge this court’s determination in Dzelajlija II that the indictment was fatally
defective, it is barred by the doctrine of res judicata from raising that challenge before the
trial court on remand.
{¶ 12} “Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceeding except an appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction, or on an appeal from that judgment.” State v.
Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, at paragraph nine of the syllabus.
{¶ 13} We note, however, that a new judicial ruling may be applied to cases that
are pending on the announcement date. Ali v. State, 104 Ohio St.3d 328,
2004-Ohio-6592, 819 N.E.2d 687; State v. Lynn (1966), 5 Ohio St.2d 106, 108, 214
N.E.2d 226.
{¶ 14} Here, in light of our remand to the trial court, this matter was not final and
was pending before the trial court at the time of the announcement of the Horner
decision. Res judicata therefore does not bar the application of the Horner decision to
this matter. Moreover, under Horner, an intervening decision by a superior court, the
robbery charges herein are not defective. State v. McCain, Montgomery App. No.
24159, 2011-Ohio-2565; State v. McCuller, Cuyahoga App. No. 94793, 2011-Ohio-610.
{¶ 15} The third assignment of error is therefore without merit.
{¶ 16} Defendant’s first, second, and fourth assignments of error are interrelated
and state:
“I. The trial court erred and violated Dzelajlija’s state and federal
due process rights when it imposed a sentence without a valid finding
of guilt.
II. The trial court lacked jurisdiction to affect this court’s judgment
in Dzelajlija II.
IV. The state failed to present extraordinary circumstances to justify
the trial court’s deviation from the mandate of Dzelajlija II.”
{¶ 17} Within these assignment of error, defendant asserts that the trial court was
without jurisdiction to reimpose the February 21, 2008 sentence because this court in
Dzelajlija II vacated the convictions, and the mandate from this court ordered that the
matter be remanded to the trial court “for the limited purpose of vacating the
convictions.”
{¶ 18} As an initial matter, we note that the trial court must follow a mandate from
this court. State v. Gates, Cuyahoga App. No. 82385, 2004-Ohio-1453; State v. Carlisle,
Cuyahoga App. No. 93266, 2010-Ohio-3407. We explained the appellate mandate as
follows:
“An appellate mandate works in two ways: it vests the lower court on
remand with jurisdiction and it gives the lower court on remand the
authority to render judgment consistent with the appellate court’s
judgment. Under the ‘mandate rule,’ a lower court must “carry the
mandate of the upper court into execution and not consider the
questions which the mandate laid at rest.”
{¶ 19} Carlisle noted that a lower court may rule on issues left open by the
mandate, and that a deviation from an appellate mandate can occur “when external
circumstances have rendered that mandate void or moot.” Id.
{¶ 20} Nonetheless, there is no authority to extend or vary the mandate of the
appellate court. State v. Bell, Cuyahoga App. No. 92037, 2009-Ohio-2138. Thus,
where this court does not mandate a resentencing hearing, the trial court had no power to
conduct one. State v. Howard, Cuyahoga App. No. 87490, 2006-Ohio-6412. Accord
Bell.
{¶ 21} Applying the foregoing to this matter, we note that following the release of
Horner “there is no violation for failing to state the culpable mental element. State v.
Segines, 191 Ohio App.3d 60, 2010-Ohio-5112, 944 N.E.2d 1186. The Segines court
explained:
{¶ 22} “Horner is an intervening decision by a superior court and its holding
requires a deviation from the law of the case we established when reopening Segines’s
appeal.” Id.
{¶ 23} Accord State v. McCain, Montgomery App. No. 24159, 2011-Ohio-2565
(Under the Horner analysis, R.C. 2911.02(A)(1) is a strict liability offense); State v.
McCuller, Cuyahoga App. No. 94793, 2011-Ohio-610 (“The supreme court’s analysis in
Horner leads to the conclusion that the offense of robbery under R.C. 2911.(A)(2) is a
‘strict liability’ offense”).
{¶ 24} Therefore, although this court’s prior remand of this matter indicated that
the convictions were reversed and the case was remanded for a new trial, the trial court,
like this court, continued to be obligated to follow the decisions of superior courts that
may supersede that mandate. By application of Horner, a decision of a superior court,
“there is no violation for failing to state the culpable mental element.” Segines. We
therefore recognize that under Horner, the trial court properly concluded that the robbery
charges herein are not defective. McCuller.
{¶ 25} Nonetheless, the mandate issued by this court did not authorize the trial
court to resentence defendant on those charges. The prior appeal of this matter did not
address the manifest weight argument raised by defendant, so this challenge has not been
resolved and the conviction has not become final. Therefore the trial court erred in
reimposing the sentence announced on February 21, 2008. The parties must obtain
finality on the conviction before sentence may be imposed.
{¶ 26} The first, second, and fourth assignments of error are well taken. The
judgment of the trial court is reversed insofar as it imposed sentence on the robbery
convictions and we hereby vacate the sentence.
{¶ 27} It is ordered that appellant recover from appellee costs herein taxed.
{¶ 28} The court finds there were reasonable grounds for this appeal.
{¶ 29} 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, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., CONCURS;
KENNETH A. ROCCO, J., CONCURS IN PART AND DISSENTS IN PART (SEE
SEPARATE OPINION ATTACHED).
KENNETH A. ROCCO, J., CONCURRING IN PART AND DISSENTING IN PART:
{¶ 30} I concur with the majority that the trial court’s judgment of May 10, 2011
should be reversed. I, however, in lieu of remand, would sua sponte reconsider
Dzelajlija II in order to review the defendant’s assignment of error concerning the
manifest weight of the evidence.1 I do so in the interests of judicial economy. Upon
1
Although “sua sponte” is a fitting motto for the 75th Ranger Regiment, it is often
inappropriate for an appellate court to issue such an order because the parties lose the
opportunity to participate in the decision-making. It would have been a better practice
for one of the parties to have moved to reconsider our decision in Dzelajlija II.
review, if this court’s decision is that the defendant’s convictions are not against the
manifest weight of the evidence, then there is no need for a third trial in this case. Of
greater concern is whether there is an unexpected jeopardy consequence in having the
trial court conduct a third trial on the merits, particularly since we did not reverse on the
merits of the second trial.
{¶ 31} It is difficult to think of this case in the context of Colon I, Colon II, and
Horner, supra, without remembering Stan Laurel looking perplexed at Oliver Hardy and
stating “What a fine mess we made Ollie.”