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State v. Kiser

Court of Appeals of Ohio, Sixth District, Sandusky

September 6, 2019

State of Ohio Appellee
Julian L. Kiser Appellant

          Trial Court No. 13CR976

          Timothy Braun, Sandusky County Prosecuting Attorney, and Joseph H. Gerber, for appellee.

          Russell V. Leffler, for appellant.


          ZMUDA, J.

         {¶ 1} Defendant Julian L. Kiser, appeals the trial court's September 29, 2017 judgment entry with regard to its imposition of a $10, 000 fine. For the reasons that follow, we reverse the trial court's judgment and modify appellant's sentence in accordance with R.C. 2959.08(G)(2).

         I. Background

         {¶ 2} The facts underlying this appeal date back to November 21, 2013. On that date, appellant was indicted on one count of trafficking in cocaine, a violation of R.C. 2925.03(A)(1)(C)(4)(g) (Count 1) and one count of possession of cocaine, a violation of R.C. 2925.11(A)(C)(4)(f) (Count 2). Each count constitutes a first-degree felony. Additionally, each count included a major drug offender specification. A first-degree felony conviction for trafficking in cocaine requires imposition of a mandatory fine of not less than $10, 000. R.C. 2925.03(D)(1), 2925.18(A)(3)(a). At his first trial, appellant was convicted by a jury on both counts. The counts were merged for purposes of sentencing and on May 14, 2014, appellant was sentenced to serve 11 years in prison. Despite the statutory requirement, no fine was imposed in the May 14, 2014 sentencing entry.

         {¶ 3} Appellant subsequently appealed his original conviction to this court arguing the evidence introduced against him at trial was collected pursuant to a search warrant based on a constitutionally defective affidavit. Appellant filed a motion to suppress this evidence prior to his trial. The trial court denied his motion. On July 31, 2015, we entered a decision finding the affidavit supporting the search warrant was indeed defective and the trial court erred in denying appellant's motion to suppress. In accordance with this conclusion, we reversed and remanded the matter back to the trial court for further proceedings. State v. Kiser, 6th Dist. Sandusky No. S-14-024, 2015-Ohio-3076 (Kiser I). The trial court's August 7, 2015 entry, following Kiser I, ordered appellant to remain in jail in lieu of bond pending retrial.[1]

         {¶ 4} Upon remand, the state sought amendment of the indictment to eliminate Count 2, and ultimately retried appellant on Count 1 only-trafficking in cocaine. The amended indictment retained the major drug offender specification. On November 5, 2015, appellant was convicted at trial on Count 1 and determined to be a major drug offender. The trial court proceeded immediately to a sentencing hearing where appellant was sentenced to serve ten years in prison. Once again, the trial court failed to impose the mandatory fine at appellant's November 5, 2015 sentencing hearing. The fine was also not included in the trial court's sentencing entry which was journalized on November 6, 2015. Following sentencing, the trial court ordered the sheriff to transport appellant to the Ohio Department of Rehabilitation and Correction to begin serving his sentence.

         {¶ 5} Appellant appealed his second conviction arguing that there was insufficient evidence to find he was a major drug offender which required the trial court to impose a maximum first-degree felony mandatory prison term under R.C. 2925.03(C)(4)(g). Appellant based his argument on testimony which suggested the cocaine he sold was not pure. He argued the state failed to provide evidence that the actual amount of cocaine, excluding any filler material, exceeded 100 grams, the threshold for being deemed a major drug offender. The state's failure to enter any drugs or testing details into evidence at appellant's second trial comported with our Kiser I decision suppressing the seized evidence. Without the physical evidence, the state relied on witness testimony to support the major drug offender specification. The testimony only indicated he was in possession of a white, powdery substance but failed to show that the actual amount of cocaine present within that substance, if any, exceeded 100 grams. We agreed with appellant that the evidence introduced at trial was insufficient to support his conviction as to the major drug offender specification. We reversed the trial court's judgment as to that issue and remanded the matter for resentencing without penalties related to the major drug offender specification in our October 14, 2016 decision. State v. Kiser, 2016-Ohio-7338, 72 N.E.3d 1080 (6th Dist.) (Kiser II). On October 28, 2016, the trial court released appellant on his own recognizance pending the state's appeal of our Kiser II decision to the Ohio Supreme Court.

         {¶ 6} Contemporaneous with appellant's case, the issue of whether the weight of an entire compound including filler material or only the actual drug included therein could support a major drug offender specification was already pending with the Ohio Supreme Court. In State v. Gonzalez, 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 986, the Ohio Supreme Court determined that the state could utilize the weight of the entire compound including any filler material, regardless of the amount of the actual drug present, as evidentiary support for the major drug offender specification. Following its ruling in Gonzalez, the Ohio Supreme Court accepted jurisdiction over the state's appeal, reversed our Kiser II decision, and remanded the matter for application of this new standard. On September 22, 2017, we affirmed appellant's November 5, 2015 conviction as there was sufficient testimony to support the appellant was a major drug offender. State v. Kiser, 6th Dist. Sandusky No. S-15-030, 2017-Ohio-7799 (Kiser III). Relevant to the present appeal, our decision in Kiser III affirmed the trial court's prior conviction on the major drug offender specification holding "substantial justice has been done the party complaining, and the judgment of the Sandusky County Court of Common Pleas is affirmed."

         {¶ 7} On September 25, 2017, in light of our Kiser III decision, the trial court issued a "Judgment Entry Imposing Balance of Prison Time Pursuant to Appellate Court Ruling." That entry ordered the issuance of a capias warrant for appellant's immediate arrest and incarceration "pursuant to the original sentence imposed, to wit, 10 years in prison." Later that same day, the state filed a "Motion for Issuance of Capias" requesting the trial court issue a capias warrant for appellant's arrest and to have him "brought forthwith before the Court to be resentenced according to the judgment of the Sixth District Court of Appeals." The trial court granted the state's motion.

         {¶ 8} On September 29, 2017, the trial court held a new sentencing hearing pursuant to the state's motion and proceeded to impose the same prison sentence and other terms as were included in the November 6, 2015 entry. However, in addition, the trial court ordered appellant to pay the mandatory fine of $10, 000 for his conviction despite not having imposed it at the November 5, 2015 sentencing hearing or the subsequent sentencing entry. Appellant timely filed his notice of appeal from the September 29, 2017 entry and assigns a single error for our review:


         II. ...

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