[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.
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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.
                                                   4


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
                                                  6


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
                                                  7


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.
