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State v. Simmons

Court of Appeals of Ohio, Seventh District, Jefferson

April 4, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
MICHAEL SIMMONS, DEFENDANT-APPELLANT.

         Criminal Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 05 CR 130

          For Plaintiff-Appellee: Atty. Jane Hanlin Assistant Prosecutor Bruzzese & Calabria

          For Defendant-Appellant: Michael Simmons, pro se

          OPINION

          ROBB, P.J.

         {¶1} 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 suspension." Id.

         {¶2} 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.

         Statement of the Case

         {¶3} 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.

         {¶4} 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 ¶ 7-32.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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 ...


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