[Cite as State v. Stansell, 2014-Ohio-1633.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100604




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                  MICHAEL STANSELL
                                                     DEFENDANT-APPELLANT




                                     JUDGMENT:
                               AFFIRMED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CR-97-356129

        BEFORE: Keough, P.J., E.A. Gallagher, J., and McCormack, J.

        RELEASED AND JOURNALIZED: April 17, 2014
APPELLANT

Michael Stansell, pro se
Inmate No. 355-967
2500 South Avon-Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} Defendant-appellant, Michael Stansell, appeals the trial court’s denial of his

motion to vacate the sexually violent predator specification. For the reasons that follow,

we affirm the trial court’s decision, but remand for the imposition of postrelease control.

       {¶2} In 1997, Stansell was charged in a thirty-eight count indictment for sex

offenses stemming from unlawful sexual conduct with two minor-aged boys. Pursuant to

a plea agreement, Stansell pled guilty to two counts of rape of a child under age 13, one

count of rape with a sexually violent predator specification, two counts of corruption of a

minor, one count of gross sexual imposition with a sexually violent predator specification,

and one count of pandering. As part of the plea agreement, Stansell also entered into an

agreed sentence on each count, for a total agreed sentence of 20 years to life in prison.

The life tail was mandatory due to the sexually violent predator specifications.1

       {¶3} This court affirmed Stansell’s convictions in State v. Stansell, 8th Dist.

Cuyahoga No. 75889, 2000 Ohio App. LEXIS 1726 (Apr. 20, 2000), and the Ohio

Supreme Court denied Stansell’s request to file a delayed appeal. See State v. Stansell,

91 Ohio St.3d 1527, 747 N.E.2d 252 (2001).

       {¶4} In March 2013, Stansell filed a motion to vacate the sexually violent predator

specification, which the trial court denied.      Stansell appeals from the trial court’s

decision, raising four assignments of error.

       1
           The term “life-tail” means an indefinite sentence with a maximum term of
life                                      in                                 prison.
                        I. Sexually Violent Predator Specification

       {¶5} In his first assignment of error, Stansell contends that the trial court erred by

classifying him under the sexually violent predator specification pursuant to R.C.

2971.01, 2971.03(A)(3), and 2929.14(B). While the assignment of error is phrased in

terms of whether the trial court erred in “classifying” him under the sexually violent

predator specification, the issue is whether the trial court erred in denying Stansell’s

motion to vacate the specification.

       {¶6} The state contends that Stansell’s claim is barred by res judicata.         The

doctrine of res judicata bars the consideration of issues that could have been raised on

direct appeal. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶

17. Regardless of whether the principles of res judicata apply here, we find that the trial

court did not err in denying appellant’s motion to vacate.

       {¶7} Stansell moved the trial court to vacate the sexually violent predator

sentencing enhancement specification based on the Ohio Supreme Court’s decision in

State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283.

       {¶8} The decision in Smith resolved a split among Ohio appellate courts

interpreting former R.C. 2971.01(H)(1). Prior to 2004, and at the time Stansell was

convicted, R.C. 2971.01(H)(1) stated, “‘Sexually violent predator’ means a person who

has been convicted of or pleaded guilty to committing, on or after [January 1, 1997], a

sexually violent offense and is likely to engage in the future one or more sexually violent

offenses.”
       {¶9} The underlying conflict among appellate districts involved the interpretation

of R.C. 2971.01(H)(1) as to whether the sexually violent offender specification could be

satisfied by a contemporaneous conviction.        State v. Ditzler, 9th Dist. Lorain No.

13CA010342, 2013-Ohio-4969, ¶ 8. In State v. Haven, 9th Dist. Wayne No. 02CA0069,

2004-Ohio-2512, ¶ 26, the court held that “a defendant need not have a prior conviction

for a sexually violent offense at the time of indictment in order for a sexually violent

predator specification to attach under R.C. 2941.148(A). A conviction on the underlying

offense is enough.” Other appellate districts interpreted R.C. 2971.01(H) to mean that

the defendant must have been convicted of a sexually violent offense prior to conviction

of the offense contained in the indictment. See, e.g., State v. Reigle, 3d Dist. Hancock

No. 5-2000-14, 2000-Ohio-1786; State v. Smith, 5th Dist. Morrow No. CA-957,

2003-Ohio-3416.

       {¶10} In 2004, the Supreme Court of Ohio resolved the issue holding that

“[c]onviction of a sexually violent offense cannot support the specification that the

offender is a sexually violent predator as defined in R.C. 2971.01(H)(1) if the conduct

leading to the conviction and the sexually violent predator specification are charged in the

same indictment.” State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283,

syllabus.

       {¶11} After the Smith decision, the General Assembly amended or clarified the

statute to its current version.     R.C. 2971.01(H)(1) now defines “sexually violent
predator” as “a person who, on or after January 1, 1997, commits a sexually violent

offense and is likely to engage in the future in one or more sexually violent offenses.”

        {¶12} This court has interpreted the General Assembly’s purpose in revising R.C.

2971.01(H)(1) to allow for the inclusion of a sexually violent predator specification in the

indictment of one being charged for the first time with a sexually violent offense. State

v. Green, 8th Dist. Cuyahoga No. 96966, 2012-Ohio-1941, ¶ 25.

        {¶13} In this case, Stansell contends, and relying on the holding in Smith, that

because he had no criminal record prior to his indictment in this case, including any

sexually motivated offenses, the life-tail imposed for the sexually violent predator

specifications was invalid and his sentence was illegal and void. Accordingly, the issue

before this court is whether the holding in Smith has retroactive application to Stansell’s

case.

        {¶14} While the issue before this court is one of first impression in our district, the

Ninth and Tenth Districts have previously considered the underlying issue and held that

Smith does not have retroactive application to closed cases. See State v. Draughon, 10th

Dist. Franklin Nos. 11AP-703 and 11AP-995, 2012-Ohio-1917; Ditzler, 9th Dist. Lorain

No. 13CA010342, 2013-Ohio-4969.           See also Waver v. Gansheimer, N.D.Ohio No.

1:06CV1239, 2009 U.S. Dist. LEXIS 89553, *26 (Sept. 1, 2009).

        {¶15} In Ditzler, the Ninth District reasoned,

        The Supreme Court of Ohio has held that “[a] new judicial ruling may be
        applied only to cases that are pending on the announcement date.” Ali v.
        State, 104 Ohio St.3d 328, 2004-Ohio-6592, ¶ 6, 819 N.E.2d 687, citing
        State v. Evans, 32 Ohio St.2d 185, 186, 291 N.E.2d 466 (1972). Thus,
       “[t]he new judicial ruling may not be applied retroactively to a conviction
       that has become final, i.e., where the accused has exhausted all of his
       appellate remedies.” Ali at ¶ 6.

Ditzler at ¶ 11. We agree.

       {¶16} In this case, Stansell’s case was not pending in any court. He filed his

direct appeal in 2000, and his convictions and sentence were affirmed by this court. His

motion to file a delayed appeal was denied by the Ohio Supreme Court in 2001. At the

time the Supreme Court decided Smith in 2004, Stansell’s case was no longer pending.

Thus, the Smith decision has no retroactive application to Stansell’s conviction on the

sexually violent predator specification. Accordingly, the trial court did not err in denying

Stansell’s motion to vacate, and his first assignment of error is overruled.

                                   II. Life-tail Sentence

       {¶17} In his second and third assignments of error, Stansell challenges the

imposition of the life-tail to his sentences. However, having previously found that the

sexually violent predator specification was proper, the imposition of the life-tail was also

proper because Stansell pled guilty to rape and gross sexual imposition, each containing a

sexually violent predator specification.        Moreover, Stansell agreed to the life-tail

sentence; thus, his argument on appeal is further overruled. See Stansell at *1 (“Stansell

agreed to the sentence as part of a plea bargain * * *.”) Accordingly, Stansell’s second

and third assignments of error are overruled.

                                  III. Postrelease Control
       {¶18} In his fourth assignment of error, Stansell contends that the trial court erred

by not imposing a period of postrelease control at the time of sentencing. We agree and

res judicata does not prevent our consideration of this argument on appeal. State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 322, ¶ 30.

       {¶19} At sentencing, Stansell was sentenced on multiple counts, including charges

that originated prior to the effective date of Am.Sub.S.B. No. 2 (“Senate Bill 2”).

“Postrelease control was enacted as part of Senate Bill 2 and applies to crimes committed

after July 1, 1996.”     State v. Staffrey, 7th Dist. Mahoning Nos. 10-MA-130 and

10-MA-131, 2011-Ohio-5760, ¶26, citing State v. Rush, 83 Ohio St. 3d 53, 54,

1998-Ohio-423,    697    N.E.2d    634.   “[P]ostrelease   control   does   not   apply to

pre-Am.Sub.S.B. No. 2 sentences for crimes committed on or before July 1, 1996 as

postrelease control did not exist prior to July 1, 1996.”       State v. Gavin, 8th Dist.

Cuyahoga No. 90017, 2008-Ohio-2042, ¶ 11.

       {¶20} However, Counts 6, 21, 24, and 26 were offenses committed after the

effective date of Senate Bill 2, thus subject to postrelease control. The fact that some of

the offenses carry a life-tail does not negate the trial court’s duty to impose postrelease

control. See R.C. 2967.28, State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124,

2010-Ohio-2671, 931 N.E.2d 110, ¶ 27 (rape convictions require postrelease control as

part of the sentence, postrelease control applies to indefinite or life sentences, and R.C.

2967.28(F) does not alter this requirement).
       {¶21} Accordingly, we remand the matter for the limited purpose for the trial

court to properly advise and impose upon Stansell the requisite period of postrelease

control. See Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 322, paragraph

two of the syllabus (“The new sentencing hearing to which an offender is entitled under

State v. Bezak is limited to proper imposition of postrelease control. (State v. Bezak, 114

Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus, modified.)”).

       {¶22} Stansell’s fourth assignment of error is sustained.

       {¶23} Judgment affirmed; case remanded to the trial court for the limited purpose

of properly advising and imposing upon Stansell the requisite period of postrelease

control.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
TIM McCORMACK, J., CONCUR
