[Cite as State v. Pustelniak, 2020-Ohio-3534.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 19CA011575
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOHN PUSTELNIAK COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 17CR097162
DECISION AND JOURNAL ENTRY
Dated: June 30, 2020
CALLAHAN, Presiding Judge.
{¶1} Appellant, the State of Ohio, appeals an order that resentenced Appellee, John D.
Pustelniak.
I.
{¶2} Mr. Pustelniak was convicted of multiple offenses charged in two consolidated
indictments, including three third-degree-felony charges of failure to comply with an order or
signal of a police officer in violation of R.C. 2921.331(B). The first two counts were part of Lorain
County Court of Common Pleas Case No. 17CR097162; the third was part of Lorain County Court
of Common Pleas Case No. 17CR097249. In separate sentencing entries, the trial court merged
count two of Case No. 17CR097162 (“count two”) and count three of Case No. 17CR097249
(“count three”) into count one of Case No. 17CR097162 (“count one”) over the State’s objection.
The trial court sentenced Mr. Pustelniak to thirty-six months in prison on count one and, consistent
with its decision that the other two counts merged with that count, imposed no sentence on them.
2
Mr. Pustelniak appealed all of his convictions, and the State appealed the trial court’s decision on
allied offenses.
{¶3} This Court overruled Mr. Pustelniak’s assignments of error, but sustained the
State’s assignment of error. State v. Pustelniak, 9th Dist. Lorain Nos. 19CA011457, 19CA011458,
2019-Ohio-3416 (“Pustelniak I”). In so doing, this Court noted that “each of the three offenses
involved different victims under [State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995][.]” Pustelniak
I at ¶ 16. We concluded that Mr. Pustelniak’s sentence with respect to the three counts at issue
was contrary to law and “that Mr. Pustelniak’s sentence must be vacated[] and this matter
remanded for resentencing on his convictions under [R.C.] 2921.331(B) that are felonies of the
third degree.” Pustelniak I at ¶ 17.
{¶4} On June 22, 2019, the trial court resentenced Mr. Pustelniak on each of the third-
degree-felony convictions under R.C. 2921.331(B). In one journal entry, the trial court sentenced
him to prison terms of eighteen and nine months, respectively, on counts one and two. In another
journal entry, the trial court sentenced him to a prison term of nine months on count three.1 The
State appealed pursuant to R.C. 2953.08(B)(2), arguing that the trial court did not have the
authority to reduce Mr. Pustelniak’s sentence on count one from thirty-six months to eighteen
months.
II.
ASSIGNMENT OF ERROR
AFTER THIS COURT REMANDED THIS MATTER FOR RESENTENCING,
SEE [PUSTELNIAK I] AT ¶ 17-18, THE TRIAL COURT ERRED, CLEARLY
AND CONVINCINGLY ACTING CONTRARY TO LAW, WHEN IT HELD A
DE NOVO SENTENCING HEARING DURING WHICH IT DECREASED THE
PRISON TERM OF 36 MONTHS IMPOSED ON THE FIRST THIRD-DEGREE
FELONY COUNT OF FAILURE TO COMPLY WITH ORDER OR SIGNAL OF
1
The State has only appealed the trial court’s resentencing entry in Case No. 17CR097162.
3
POLICE OFFICER AT THE FIRST SENTENCING HEARING TO 18 MONTHS
BECAUSE NEITHER THE STATE NOR MR. PUSTELNIAK APPEALED THE
36-MONTH TERM OF INCARCERATION THAT THE TRIAL COURT
IMPOSED, LEAVING THAT SPECIFIC SENTENCE UNAFFECTED BY THIS
COURT’S DECISION ON DIRECT APPEAL.
{¶5} In its sole assignment of error, the State argues that the trial court erred by including
count one within the scope of the resentencing hearing and by modifying the sentence on that count
from thirty-six to eighteen months.
{¶6} R.C. 2953.08(B)(2) permits the State to appeal a sentence imposed upon a
defendant on the grounds that the sentence is contrary to law. If this Court “clearly and
convincingly finds * * * [t]hat the sentence is contrary to law[,]” we “may increase, reduce, or
otherwise modify a sentence that is appealed under this section or may vacate the sentence and
remand the matter to the sentencing court for resentencing.” R.C. 2953.08(G)(2)(b).
{¶7} The State urges this Court to conclude that the outcome of this case is controlled
by State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245. Specifically, the State maintains that
Saxon stands for the proposition that “when a matter is remanded based only on a sentencing error
resulting from a faulty allied-offenses analysis, ‘only the sentences for the offenses that were
affected by the appealed error are reviewed de novo; the sentences for any offenses that were not
affected by the appealed error are not vacated and are not subject to review.’” Mr. Pustelniak, on
the other hand, maintains that the issue in this case is controlled by State v. Wilson, 129 Ohio St.3d
214, 2011-Ohio-2669, and State v. Christian, Slip Opinion No. 2020-Ohio-828. Because the
procedural postures of Saxon, Wilson, and Christian differ from this case, those decisions are
instructive, rather than conclusive, regarding the State’s assignment of error.
{¶8} In Saxon, the defendant appealed his sentence on one of two convictions. Id. at ¶
3. The court of appeals, however, vacated both sentences and remanded the case for resentencing.
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Id. In concluding that the court of appeals erred by vacating both of the sentences, the Ohio
Supreme Court differentiated the “‘sentence package doctrine,’” which “requires the court to
consider the sanctions imposed on multiple offenses as the components of a single, comprehensive
sentencing plan,” from the approach taken in Ohio, which “is clearly designed to focus the judge’s
attention on one offense at a time.” Id. at ¶ 5, 8. As support for this distinction, the Court explained
that in Ohio, a “sentence” is defined as “‘the sanction or combination of sanctions imposed by the
sentencing court on an offender who is convicted of or pleads guilty to an offense.’” Id. at ¶ 12,
quoting R.C. 2929.01(FF), and paragraph one of the syllabus.
{¶9} With these principles in view, the Supreme Court concluded that the court of
appeals exceeded its authority by vacating the sentences for both offenses rather than only the one
that had been appealed. Saxon at ¶ 30. Saxon, therefore, limited the authority of a court of appeals
when considering sentencing appeals, holding that “[a]n 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 based upon an appealed error in the sentence
for a single offense.” Saxon at paragraph three of the syllabus.
{¶10} The Ohio Supreme Court considered the application of Saxon to allied offenses in
Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669. In Wilson, the defendant was convicted of three
offenses and sentenced on each. Id. at ¶ 3. The defendant appealed, arguing that all three offenses
were allied offenses of similar import and, consequently, that they should have merged for
purposes of sentencing. Id. at ¶ 4. The court of appeals agreed, vacated the defendant’s sentences
on all three convictions, remanded the case for resentencing, and noted that objections related to
the resentencing hearing could be raised at that time. Id. at ¶ 6. The Ohio Supreme Court explained
that when a trial court errs by failing to merge allied offenses, a court of appeals cannot merely
5
modify the sentence, but must remand for a new sentencing hearing during which the trial court
must accept the State’s election for sentencing purposes, merge the convictions for sentencing, and
impose an appropriate sentence. Id. at ¶ 13, citing State v. Whitfield, 124 Ohio St.3d 319, 2010-
Ohio-2, ¶ 24. The Court concluded that “[a] remand for a new sentencing hearing generally
anticipates a de novo sentencing hearing,” but noted that the scope of the de novo hearing is also
limited to “the sentences for the offenses that were affected by the appealed error.” Wilson at ¶
15, citing Saxon at paragraph three of the syllabus.
{¶11} Consequently, when a defendant appeals multiple sentences and argues that the trial
court erred by failing to merge allied offenses for purposes of sentencing and prevails in that
appeal, each of the allied offenses is properly within the scope of the de novo sentencing hearing
on remand. Wilson at ¶ 13, citing Whitfield at ¶ 24. In other words, because each sentence that
should have been merged is at issue in an allied-offense challenge by a defendant, each must be
addressed during resentencing, and doing so does not raise concerns about package sentencing in
those circumstances. Wilson at ¶ 18.
{¶12} In Christian, the Ohio Supreme Court considered the point at which a defendant
has an expectation of finality in a sentence that has been imposed. See generally Christian, Slip
Opinion No. 2020-Ohio-828. In that case, the appellant had been incarcerated for a period of time
equal to the length of a vacated prison term by the time a resentencing hearing was conducted. Id.
at ¶ 1. When the trial court resentenced the defendant, the trial court modified the relevant sentence
to be served consecutively, rather than concurrently, with another. Id. at ¶ 6. The defendant
appealed, arguing that the trial court erred by imposing a consecutive sentence. Id. at ¶ 7. The
court of appeals reversed, concluding that the defendant could not be resentenced on that count
because she had completed the term originally imposed, even though she was still incarcerated on
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another of the charges. Id. at ¶ 8. The Ohio Supreme Court concluded that the defendant had no
expectation of finality in the relevant portions of her original sentence because they were still
subject to modification as a result of a pending appeal. Id. at ¶ 17-18, 27. In this context, the
Court held that “when a portion of a defendant’s sentence has been vacated on direct appeal, the
trial court has the authority to resentence the defendant de novo on any counts for which the
original sentence was vacated.” Id. at ¶ 29.
{¶13} Saxon, Wilson, and Christian are not on point with this case. Nonetheless, they are
instructive, and they provide guidance in our resolution of the State’s assignment of error. Under
Saxon, this Court may only vacate a sentence that is the subject of an appeal. Saxon, 109 Ohio
St.3d 176, 2006-Ohio-1245, at ¶ 30. Wilson clarifies that all merged sentences are relevant to the
analysis of allied offenses and, conversely, that only those affected by an appealed error are
properly within the scope of a resentencing hearing. See Wilson, 129 Ohio St.3d 214, 2011-Ohio-
2669, at ¶ 15. Finally, Christian reminds us that a trial court may resentence a defendant on any
portion of a sentence that has been vacated on appeal as long as the defendant’s expectation in the
finality of the sentence has not yet attached. Christian at ¶ 29.
{¶14} In Pustelniak I, the State appealed Mr. Pustelniak’s sentence, arguing that the trial
court erred by merging his three third-degree-felony convictions for failure to comply with an
order or signal of a police officer, sentencing him only on count one, and declining to sentence
him on counts two and three. This Court noted that the State’s argument was “that the trial court
incorrectly merged two of the failure to comply counts [counts two and three] at sentencing
because it determined that they were allied offenses of similar import.” Pustelniak I, 2019-Ohio-
3416, at ¶ 13. Applying the standard required by State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-
995, this Court examined each of the three counts and determined that they were not allied offenses
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because each involved a different victim. Pustelniak I at ¶ 13-16. We then concluded that “Mr.
Pustelniak’s sentence must be vacated, and this matter remanded for resentencing on his
convictions under [R.C. 2921.331(B)] that are felonies of the third degree.” Id. at ¶ 17. It is this
language that has caused some confusion in this case.
{¶15} When this Court’s decision in Pustelniak I is considered in its entirety, however, it
is apparent that this Court found no error with the sentence that the trial court imposed on count
one—indeed, the State alleged no error in connection with that sentence. This Court did not vacate
that sentence and, consequently, it was not before the trial court for consideration on remand.
Indeed, under Saxon and Christian, this Court could not have vacated the sentence on count one,
nor could the trial court properly include it within the scope of the resentencing hearing.
{¶16} Because it was the State, rather than Mr. Pustelniak, who appealed the allied-
offenses issue and because the issue was not failure to merge sentences, but error in doing so in
the first instance, Wilson also did not require the trial court to consider count one during the
resentencing hearing. All three third-degree felony convictions for failure to comply with an order
or signal of a police officer were implicated in the analysis of the State’s assignment of error in
Pustelniak I by necessity. The alleged error, however, did not pertain to the sentence imposed on
count one. It related solely to the trial court’s erroneous conclusion that count two and count three
were allied with count one and, as a result, that no sentence should be imposed on those counts.
{¶17} Consequently, the trial court erred by resentencing Mr. Pustelniak on count one
when that count was not properly within the scope of the resentencing hearing on remand. The
State’s assignment of error is, therefore, sustained.
{¶18} Pursuant to this Court’s authority under R.C. 2953.08(G)(2)(b), the sentence
imposed on count one as a result of the resentencing hearing is vacated. This matter is remanded
8
so that the trial court may reimpose the original sentence of thirty-six months on count one. The
sentences imposed on counts two and three, which were properly before the trial court during the
resentencing hearing, are not affected by this decision. See generally Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, at paragraphs one, two, and three of the syllabus.
III.
{¶19} The State’s assignment of error is sustained, and the judgment of the Lorain County
Court of Common Pleas is reversed. This matter is remanded for proceedings consistent with this
opinion.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
LYNNE S. CALLAHAN
FOR THE COURT
9
SCHAFER, J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellant.
GIOVANNA V. BREMKE, Attorney at Law, for Appellee.