Court of Appeals of Ohio, Seventh District, Jefferson
Appeal from the Court of Common Pleas of Jefferson County,
Ohio Case No. 05 CR 130
Plaintiff-Appellee: Atty. Jane Hanlin Assistant Prosecutor
Bruzzese & Calabria
Defendant-Appellant: Michael Simmons, pro se
Defendant-Appellant Michael Simmons appeals the decision of
Jefferson County Common Pleas Court denying his motion for
correction of an illegal sentence. Appellant argues the trial
court's decision is incorrect. He was convicted of drug
trafficking, which at the time of his sentence and conviction
required a mandatory driver's license suspension. The
trial court, however, did not suspend his license. Recently,
the Ohio Supreme Court has held, "when a trial court
fails to include a mandatory driver's license suspension
as part of an offender's sentence, that part of the
sentence is void." State v. Harris, 132 Ohio
St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 18.
"[Resentencing of the offender is limited to the
imposition of the mandatory driver's license
Therefore, on the basis of Harris, the trial
court's decision is reversed and the matter is remanded
for resentencing. Upon remand the trial court is instructed
to apply the current version of R.C. 2925.03. Under the
current version of the statute, Appellant is subject to a
discretionary driver's license suspension, not a
mandatory driver's license suspension. Resentencing is
limited only to the driver's license suspension issue.
of the Case
The history of this case involves multiple trial court
filings and multiple appeals that all stem from
Appellant's conduct on August 11, 2005. The facts are
detailed in State v. Simmons, 7th Dist. No. 06 JE 4,
2007-Ohio-1570, ¶ 2-3 (Simmons I). In January
2005, a jury found Appellant guilty of corrupting a minor
with drugs, drug trafficking, tampering with evidence, and
possession of drugs. Id. at ¶ 6-7. The
corruption and trafficking charges carried attendant
specifications alleging the crimes occurred within the
vicinity of a school; Appellant was found guilty of both of
those specifications. Id. at ¶ 4, 7. The trial
court sentenced Appellant to a 15-year aggregate sentence and
stated he "may" be subject to postrelease control.
Id. at ¶ 7. Appellant appealed; the conviction
was affirmed, however, pursuant to the mandates in State
v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d
470, the sentence was vacated and the matter remanded for
resentencing. Simmons I at ¶ 29-34, 174.
Appellant was resentenced and received the same aggregate
15-year sentence and postrelease control advisement.
State v. Simmons, 7th Dist. No. 07 JE 22,
2008-Ohio-3337, ¶ 3 (Simmons II). Appellant
appealed arguing the sentence violated the ex post facto
clause and due process clause of the constitution.
Id. at ¶ 5. We found no merit with the
arguments and affirmed the sentence. Id. at ¶
In December 2009, Appellant filed a motion to vacate his
sentence and requested a new sentencing hearing. He argued
the trial court improperly imposed postrelease control, and
as such, the sentence was void. State v. Simmons,
7th Dist. NO. 10-JE-4, 2011-Ohio-2625, ¶ 9 (Simmons
III). The trial court found it improperly imposed
postrelease control and granted the motion. Id. at
¶ 10. It held a new sentencing hearing and once again
imposed the aggregate 15-year sentence. Id. However,
as to the postrelease control advisement, the trial court
stated Appellant "shall" be subject to a period of
postrelease control. Id.
Appellant appealed. In Simmons III, Appellant raised
many of the same arguments that were raised, addressed, and
disposed of in Simmons I. Id. at ¶ 23. Those
arguments were barred by the doctrine of res judicata.
Id. at ¶ 30-31, 37, citing State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d
332. We explained the trial court correctly determined it had
given an improper advisement on postrelease control and
appropriately resentenced Appellant. Simmons III at
¶ 30, 37. The only portion of Appellant's sentence
rendered void by the improper advisement on postrelease
control was postrelease control. Id. An appeal from
a resentencing judgment in which the only issue is the proper
advisement of postrelease control is limited to that
advisement. Id. The trial court properly advised
Appellant on postrelease control at the resentencing hearing.
Id. at ¶ 37. Thus, there was no basis to
reverse the sentence imposed, and the sentence was affirmed.
Id. at ¶ 45.
Following that decision, in December 2012, Appellant filed an
application for reopening. State v. Simmons, 7th
Dist. No. 07 JE 22, 2013-Ohio-1013, ¶ 6 (Simmons
IV). Appellant failed to demonstrate good cause for the
untimeliness of the application, and thus, the application
was denied. Id. at ¶ 1, 13.
On September 14, 2011 and June 14, 2012, Appellant filed a
motion for additional jail-time credit. State v.
Simmons, 7th Dist. No. 13 JE 2, 2013-Ohio-5282, ¶
11, 13 (Simmons V). The trial court overruled both
motions on September 15, 2011. Id. at ¶ 12, 14.
Appellant filed an appeal from those rulings; the appeal was
sua sponte dismissed as untimely. Id. at ¶ 16.
On December 3, 2012, Appellant filed another motion to
correct sentence. Id. at ¶ 17. The trial court
denied the motion. Id. at ¶ 18. Appellant
timely appealed that decision. Id. at ¶ 21. We
found no merit with the Simmons V appeal; the ...