State v. Wells

[Cite as State v. Wells, 2013-Ohio-5821.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2013-A-0014
- vs - :

SCHON WELLS, :

Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011
CR 346.

Judgment: Affirmed.

Thomas L. Sartini, Ashtabula County Prosecutor, Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Rick L. Ferrara, 2077 East 4th Street, 2nd Floor, Cleveland, OH 44113 (For
Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Schon Wells, appeals his resentencing following this court’s

remand in State v. Wells, 11th Dist. Ashtabula No. 2011-A-0073, 2012-Ohio-4459

(“Wells I”). This is appellant’s second appeal arising from his conviction. At issue is

whether the trial court erred by imposing a consecutive sentence for failure to comply

with an order or signal of a police officer. For the reasons that follow, we affirm.
 {¶2} Appellant was indicted for two counts of failure to comply with an order or

signal of a police officer, felonies of the third degree (Counts One and Four); receiving

stolen property involving a motorcycle, a felony of the fourth degree (Count Two); and

burglary, a felony of the second degree (Count Three).

{¶3} This court set forth the evidence underlying appellant’s conviction in Wells

I. That recitation outlined appellant’s flight from police officers on a stolen motorcycle

on Ashtabula’s city streets at speeds in excess of 70 m.p.h. while refusing to follow their

orders and signals to pull over. Appellant eventually abandoned the motorcycle, and

entered the home of a female victim in order to hide from the police. The victim saw

appellant in one of the bedrooms. Terrified, she ran out the front door screaming for

help. Appellant left the house using the back door and fled. After two police canines

tracked him down, the officers were finally able to arrest him.

{¶4} At the conclusion of the state’s case, appellant made a Rule 29 motion for

acquittal. The trial court denied the motion with one exception: the court noted there

was one continuous pursuit and thus merged the failure-to-comply charge in Count Four

with that same charge in Count One.

{¶5} The jury found appellant guilty of the three remaining counts: failure to

comply (Count One), receiving stolen property (Count Two), and burglary (Count

Three).

{¶6} The court sentenced appellant to three years for failure to comply, 18

months for receiving stolen property, and five years for burglary, the terms to be served

concurrently to each other, for a total of five years in prison.

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 {¶7} Appellant filed a direct appeal. In Wells I, this court remanded the burglary

conviction for resentencing as a third-degree felony, rather than a second-degree

felony. Id. at ¶51.

{¶8} During the resentencing hearing on remand, the court stated that it had

erred in imposing its original sentence because it ordered the sentence for failure to

comply be served concurrently to the court’s sentences of receiving stolen property and

burglary. The court noted that, pursuant to R.C. 2921.331(D), it was required to order

that appellant’s sentence for failure to comply be served consecutively to his sentences

for the other offenses. The court then imposed a sentence of two years (as opposed to

the original five years) for the burglary conviction and the original sentence of 18

months for receiving stolen property. The court ordered the sentences for these two

offenses to be served concurrently to each other for a total of two years. Further, the

court re-imposed the original sentence of three years for failure to comply, but, pursuant

to R.C. 2921.331(D), ordered that sentence to be served consecutively to the sentence

for burglary and receiving stolen property, for a total of five years in prison.

{¶9} Following the resentence, the court asked appellant’s attorney if he had

anything further and counsel said he did not. Thus, appellant did not object to the

court’s resentence.

{¶10} Appellant appeals his resentence, asserting the following for his sole

assignment of error:

{¶11} “The trial court acted contrary to law when it sentenced appellant to a

consecutive term of imprisonment for failure to comply upon resentencing.”

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 {¶12} Appellant argues that the trial court erred in resentencing him to a

consecutive sentence for failure to comply because, he contends, pursuant to State v.

Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, the trial court was only authorized to

resentence him for the offense affected by Wells I, i.e., burglary. Appellant asks this

court to reverse his resentence and impose a three-year concurrent prison term.

{¶13} Pursuant to R.C. 2953.08(G)(2), an appellate court may “increase, reduce,

or otherwise modify a [felony] sentence that is appealed under this section” or “vacate

the sentence and remand the matter to the sentencing court for resentencing” if the

sentence is contrary to law. Saxon, supra, at ¶4. Since appellant argues the trial court

did not follow Saxon in resentencing him, we review his resentence to determine

whether it is contrary to law.

{¶14} We note that, not only did appellant fail to make his Saxon argument in the

trial court, he did not make any objection at all to his resentence. When reviewing

sentencing errors, the Supreme Court of Ohio has consistently held that a failure to

object waives all but plain error. See e.g. State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, ¶152.

{¶15} Here, because appellant did not raise his objection pursuant to Saxon in

the trial court, he waived all but plain error. Crim.R. 52(B) allows us to correct “[p]lain

errors or defects affecting substantial rights” that were not brought to the attention of the

trial court. In State v. Barnes, 94 Ohio St.3d 21, 27 (2002), the Supreme Court of Ohio

set forth very strict limitations on what constitutes plain error. First, there must be an

error, i.e., a deviation from a legal rule. Id. Second, the error must be plain, i.e., the

error must be an “obvious” defect in the proceedings. Id. Third, the error must have

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affected “substantial rights.” Id. In State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-

4642, the Supreme Court held that the defendant has the burden of demonstrating plain

error. Id. at ¶17. Further, the decision to correct a plain error is discretionary and

should be made “‘with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.’” Barnes, supra, quoting State v. Long, 53

Ohio St.2d 91 (1978), paragraph three of the syllabus. Thus, our review is limited to a

determination of plain error.

{¶16} In Saxon, supra, the Supreme Court held: “An appellate court may

modify, remand, or vacate only a sentence for an offense that is appealed by the

defendant and may not modify, remand, or vacate the entire multiple-offense sentence.”

Id. at paragraph three of the syllabus.

{¶17} In so holding, the Supreme Court declined to adopt the “sentencing-

package doctrine” applied in federal courts, pursuant to which courts consider the

sanctions imposed on multiple offenses as the components of a single sentencing plan.

Id. at ¶5, 10. According to this doctrine, an error in the sentencing package as a whole,

even if only on one of multiple offenses, may require modification or vacation of the

entire sentencing package due to the interdependency of the sentences for each

offense. Id. at ¶6. Thus, under this doctrine, in a direct appeal from multiple-count

convictions, the appellate court has the authority to vacate all sentences even if only

one is reversed on appeal. Id.

{¶18} As noted above, in Wells I, this court remanded for appellant to be

resentenced for burglary. However, in addition to reducing appellant’s sentence for

burglary from five to two years, the trial court ordered that appellant’s sentence for

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failure to comply be served consecutively to the sentences for the other offenses of

which he was convicted, as required by R.C. 2921.331(D).

{¶19} Appellant was convicted of failure to comply with an order or signal of a

police officer, a felony of the third degree, in violation of R.C. 2921.331(B) and R.C.

2921.331(C)(5). R.C. 2921.331(D) provides:

{¶20} If an offender is sentenced pursuant to division (C)(4) or (5) of this

section for a violation of division (B) of this section, and if the

offender is sentenced to a prison term for that violation, the

offender shall serve the prison term consecutively to any other

prison term or mandatory prison term imposed upon the offender.

(Emphasis added.)

{¶21} “[A] sentence that does not contain a statutorily mandated term is a void

sentence.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶14, citing State v.

Beasley, 14 Ohio St.3d 74 (1984). The Supreme Court of Ohio in Simpkins held that,

where the sentencing judge “disregards what the law clearly commands, such as when

a judge fails to impose a nondiscretionary sanction required by a sentencing statute, the

judge acts without authority.” Id. at ¶21. Further, “if a judge imposes a sentence that is

unauthorized by law, the sentence is unlawful.” Id. If a sentence is unlawful, it is not

merely erroneous or voidable; rather, it is unauthorized and void. Id. By way of

example, the Court cited Beasley, supra. In Beasley, the applicable sentencing statute

required the judge to impose a prison term and permitted the judge to impose a fine. Id.

at 75. The trial court disregarded the statutory mandate and imposed only a fine. The

Supreme Court held in Beasley that the trial court had exceeded its authority by

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disregarding the statutory-sentencing requirement and that the purported sentence was

a nullity and must be considered void. Id. Further, the Court in Simpkins, supra, held

that “[a] trial court’s jurisdiction over a criminal case is limited after it renders judgment,

but it retains jurisdiction to correct a void sentence and is authorized to do so.” Id. at

¶22. “Indeed, it has an obligation to do so when its error is apparent.” Id.

{¶22} Ohio Appellate Districts have held that a sentencing court does not have

discretion in imposing a consecutive sentence for failure to comply pursuant to R.C.

2921.331(D), and that if a prison term is imposed for this offense that is not consecutive,

the sentence is void. In State v. June, 10th Dist. Franklin No. 12AP-901, 2013-Ohio-

2775, the trial court ordered the defendant’s sentence for failure to comply to be served

concurrently to a prison term for another offense. The state appealed. The Tenth

District held:

{¶23} Under the terms of * * * R.C. * * * 2921.331(D), the trial court was

required to impose any prison term for the failure-to-comply

conviction consecutively to any other prison term imposed on

appellee. Other appellate courts have reached the same conclusion

in applying these statutes. See State v. Spicer, 8th Dist. No. 92384,

2010-Ohio-61, ¶19 (“[P]ursuant to R.C. 2921.331(D), a term of

imprisonment for failure to comply must run consecutive to that of

any other term of imprisonment, no matter if the sentence is being

imposed on the same or different case.”); State v. Whittsette, 8th

Dist. No. 85478, 2005-Ohio-4824, ¶10 (“[A] trial court has no

discretion in the decision to impose a consecutive sentence for a

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 violation of R.C. 2921.331(B).”); State v. Mango, 7th Dist. No. 01

CA 170, 2002-Ohio-6890, ¶19 (“[I]t appears that the trial court has

no discretion in the decision to impose a consecutive sentence for a

violation of R.C. 2921.331(B).”). Accordingly, the trial court’s

judgment is contrary to law because it does not comply with the

mandates of R.C. * * * 2921.331(D).

{¶24} * * *

{¶25} “Any attempt by a court to disregard statutory requirements when

imposing a sentence renders the attempted sentence a nullity or

void.” Beasley, [supra]. * * * In this case, the trial court was

statutorily required to impose a consecutive sentence for

appellee’s conviction for failure to comply but failed to do so.

Therefore, appellee’s original sentence was void. June, supra, at

¶7-9.

{¶26} As a result, the Tenth District in June reversed the conviction and

remanded the case for resentencing. Id. at ¶11.

{¶27} Ohio Appellate Districts routinely remand for resentencing to correct the

trial court’s failure to apply R.C. 2921.331(D). For example, in State v. Coleman, 6th

Dist. Sandusky No. S-06-023, 2007-Ohio-448, the defendant was convicted of several

offenses, including failure to comply with an order or signal of a police officer. At

sentencing, the trial court ordered the sentences imposed for murder and felonious

assault to be served consecutively, while the sentence for failure to comply was to be

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served concurrently. The defendant appealed his sentence, but, not surprisingly, did

not appeal his concurrent sentence for failure to comply. The trial court held:

{¶28} We must sua sponte find * * * error in the trial court’s order for the

one year term for failure to comply to run concurrent to the other

terms. Appellant was convicted of R.C. 2921.331(B) and (C)(4) * *

*. R.C. 2921.331(D) grants discretion in whether a court may

impose a prison term for the offense; if a prison term is imposed,

however, it must be ordered consecutive to any other sentence

imposed.

{¶29} The portion of appellant’s sentence ordering the one year term for

failure to comply to run concurrent to all other sentences is,

therefore, contrary to statute. Coleman, supra, at ¶24-25.

{¶30} As a result, pursuant to R.C. 2953.08(G)(2)(b), the Sixth District in

Coleman modified the defendant’s conviction and ordered the one-year term imposed

for failure to comply to run consecutively to the other terms imposed.

{¶31} Appellant argues that by applying R.C. 2921.331(D) to his sentence for

failure to comply, the trial court violated the doctrine of res judicata. However,

“principles of res judicata do not apply to void sentences because, by definition, a void

sentence means that no final judgment of conviction has been announced.” State v.

McGee, 8th Dist. Cuyahoga No. 91638, 2009-Ohio-3374, ¶8.

{¶32} Due to the mandatory nature of R.C. 2921.331(D), the trial court was

required to impose a consecutive sentence for failure to comply. However, because the

trial court failed to apply R.C. 2921.331(D), his original sentence was void. Once this

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error became apparent to the trial court at the resentencing hearing, the trial court was

obligated to correct it.

{¶33} Alternatively, on remand for resentencing, the trial court had the discretion

to order appellant to serve his sentence for burglary consecutively to his sentence for

the two other offenses. In fact, the court stated at the resentencing, and ordered in the

judgment entry, that the concurrent two-year sentence for burglary and receiving would

be served consecutively to the three-year sentence for failure to comply. The Supreme

Court of Ohio in Saxon held:

{¶34} Although imposition of concurrent sentences in Ohio may appear to

involve a “lump” sentence approach, the opposite is actually true.

Instead of considering multiple offenses as a whole and imposing

one, overarching sentence to encompass the entirety of the

offenses as in the federal sentencing regime, a judge sentencing a

defendant pursuant to Ohio law must consider each offense

individually and impose a separate sentence for each offense. * * *

Only after the judge has imposed a separate prison term for each

offense may the judge then consider in his discretion whether the

offender should serve those terms concurrently or consecutively.

Id. at ¶9.

{¶35} Further, in State v. Busby, 10th Dist. Franklin No. 09AP-1119, 2010-Ohio-

4516, the defendant was found guilty of four counts of rape. The court sentenced him

to concurrent prison terms. On appeal, the court affirmed the convictions but found the

trial court erred in sentencing and remanded for resentencing. On remand, the court

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sentenced appellant to consecutive prison terms on each count. On appeal, the Tenth

District held that by remanding the case for resentence, the trial court’s discretion was

not limited and it was not prohibited from imposing consecutive sentences. Id. at ¶6.

{¶36} Further, the Second District in State v. Mitchell, 2d Dist. Montgomery No.

21020, 2006-Ohio-1602, held that in resentencing a defendant following remand, the

trial court is free to “impose any sentence within the appropriate felony range. If the

offender is sentenced to multiple prison terms, the court is not barred from requiring

those terms to be served consecutively.” Id. at ¶11, citing State v. Foster,109 Ohio St.3d

1, 2006-Ohio-856, ¶105.

{¶37} In summary, because the trial court was obligated to correct appellant’s

void sentence for failure to comply, the trial court did not commit plain error in imposing

a consecutive sentence for this offense. Alternatively, because the trial court was

authorized to impose a consecutive sentence for appellant’s burglary conviction,

appellant’s resentence did not result in plain error.

{¶38} For the reasons stated in this opinion, appellant’s assignment of error is

overruled. It is the judgment and order of this court that the judgment of the Ashtabula

County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.

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