Submitted February 27, 2013
Appeal from the Court of Appeals for Cuyahoga County, No. 95851, 2012-Ohio-913.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and T. Allan Regas, Assistant Prosecuting Attorney, for appellant.
Robert L. Tobik, Cuyahoga County Public Defender, and Cullen Sweeney and John T. Martin, Assistant Public Defenders, for appellee.
(¶ 1} In 2006, appellee, James Dzelajlija, was found guilty of two counts of robbery, R.C. 2911.02. He was sentenced to two concurrent terms of seven years' imprisonment and five years of postrelease control. On appeal, the court of appeals determined that the trial court had admitted inadmissible and prejudicial evidence. The appellate court reversed the convictions and granted Dzelajlija a new trial. State v. Dzelajlija, 8th Dist. Cuyahoga No. 88805, 2007-Ohio-4050.
(¶ 2} After a retrial in 2008, Dzelajlija was again found guilty of two counts of robbery and again sentenced to two concurrent seven-year terms, but this time with three years of postrelease control.
(¶ 3} Dzelajlija appealed, raising two assignments of error. His first assignment argued that the indictment was defective for failing to state a culpable mental state for either offense. His second contended that the convictions were against the manifest weight of the evidence. The court of appeals reversed on the first ground, concluding that the indictment was defective and that the defects amounted to structural error based on our decisions in State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, and State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169. Accordingly, the court of appeals vacated the convictions. The court determined that the second assignment of error was moot, and the court reversed the judgment and remanded for further proceedings consistent with its decision. State v. Dzelajlija, 8th Dist. Cuyahoga No. 91115, 2009-Ohio-1072 (" Dzelajlija II ").
(¶ 4} Over a year later, and before a retrial took place, this court decided State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, which overruled both Colon decisions. The trial court held a hearing to address the effect of the Horner decision on this case. It determined that the grounds for reversal no longer existed and reimposed the sentence of two concurrent seven-year prison terms followed by three years of postrelease control.
(¶ 5} Dzelajlija appealed. The court of appeals stated:
[A]lthough 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. * * * We therefore recognize that under Horner, the trial court properly concluded that the robbery charges herein are not defective.
State v. Dzelajlija, 8th Dist. Cuyahoga No. 95851, 2011-Ohio-6445, 2011 WL 6314200, ¶ 24 ("Dzelajlija III "). The court nevertheless reversed, finding that an issue remained outstanding: Dzelajlija's argument regarding the manifest weight of the evidence that had earlier been declared moot and had never been resolved. Id. at ¶ 25. The court of appeals concluded that because there was an outstanding issue on appeal, the conviction had not become final and, therefore, the sentence should not have been reimposed. Remarking on the confused history of this case, one of the judges, who dissented in part, was reminded of that immortal Laurel and Hardy phrase "another fine mess." He wasn't wrong.
(¶ 6} Then, in the decision that is before us today, the court of appeals reconsidered its holding. It determined that even though Horner had overruled the Colon cases, the structural-error analysis from Colon was still applicable to this case. State v. Dzelajlija, 8th Dist. Cuyahoga No. 95851, 2012-Ohio-913, 2012 WL 759145 ("Dzelajlija IV "). Then ...