[Cite as State v. Dzelajlija, 2011-Ohio-6445.]

                            [Vacated opinion. Please see 2012-Ohio-913.]



                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 95851


                                        STATE OF OHIO
                                                 PLAINTIFF-APPELLEE

                                                  vs.


                                   JAMES DZELAJLIJA
                                                 DEFENDANT-APPELLANT



                       JUDGMENT:
       REVERSED, SENTENCE VACATED, AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-478630

        BEFORE: Kilbane, A.J., Boyle, J., and Rocco, J.

        RELEASED AND JOURNALIZED:                       December 15, 2011
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Chief Public Defender
Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue - Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Sanjeev Bhasker
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:

       {¶ 1} Defendant-appellant, James Dzelajlija, appeals from the order of the trial

court that reinstated his sentences for robbery, following this court’s reversal of the

robbery convictions and remand for a new trial.    Although subsequent case law makes it

clear that a new trial is no longer necessary, we conclude that the trial court committed

reversible error and acted beyond its mandate in reinstating the sentences for the

convictions that we vacated.     Therefore, the decision must be reversed and the matter

remanded to the trial court for further proceedings consistent with this opinion.

       {¶ 2} On March 23, 2006, defendant was indicted on two counts of robbery and

receiving stolen property, in connection with the September 30, 2005 robbery of a

furniture store employee who was making a night deposit.       Defendant was convicted of

the robbery charges and sentenced to concurrent seven-year terms of imprisonment, plus

five years of postrelease control.   This court determined that the trial court admitted

inadmissible and prejudicial opinion evidence as to a witness’s truthfulness and reversed

and remanded for a new trial.         State v. Dzelajlija, Cuyahoga App. No. 88805,

2007-Ohio-4050 (Dzelajlija I).

       {¶ 3} Defendant was again convicted of both robbery charges following the

retrial, and on February 21, 2008, he was sentenced to a seven-year term of imprisonment

and a concurrent five-year term of imprisonment, plus three years of postrelease control.
The court additionally ordered this sentence to be served consecutively to an unrelated

conviction in Case No. CR-475938.

       {¶ 4} Defendant appealed to this court, asserting that the indictments were

defective under State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917

(Colon I) and State v. Colon, 119 Ohio St.3d 204, 2008-Ohio 3749, 893 N.E.2d 169

(Colon II), and that his convictions were against the manifest weight of the evidence.

       {¶ 5} This court concluded that the indictments were defective under State v.

Colon I, and Colon II for failing to charge defendant with the requisite mens rea of

recklessness.   This court therefore again reversed defendant’s convictions and remanded

the matter for a new trial pursuant to properly formed indictments and remanded the

matter to the trial court.   This court additionally determined that since the defective

indictments constituted structural error, defendant’s challenge to the weight of the

evidence supporting his convictions was moot. State v. Dzelajlija, Cuyahoga App. No.

91115, 2009-Ohio-1072 (Dzelajlija II).

       {¶ 6} On May 20, 2009, the matter was returned to the docket of the trial judge.

At this time, however, defendant was imprisoned in connection with Case No.

CR-475938. Retrial was scheduled for September 14, 2010. On August 27, 2010,

however, the Ohio Supreme Court decided State v. Horner, 126 Ohio St.3d 466,

2010-Ohio-3830, 935 N.E.2d 26. In Horner, the court overruled Colon I and Colon II,

and held that where an indictment charges an offense by tracking the language of the
criminal statute, it is not defective for failure to identify a culpable mental state when the

statute itself fails to specify a mental state.

        {¶ 7} On September 14, 2010, the trial court held a hearing in this matter to

determine the effect of the Horner decision in relation to our prior mandate in Dzelajlija

II.   The record of this hearing indicates that the file was not returned to the trial court

until May 2009. At that time, the court learned that the State intended to retry defendant

but the following month, the Ohio Supreme Court released its decision in Horner, which

overruled Colon I and Colon II.

        {¶ 8} The prosecuting attorney maintained that because defendant remained

imprisoned in Case No. CR-475938, and did not file a detainer to be brought back for

retrial, defendant’s speedy trial rights had not been violated.   He additionally argued that

the Horner decision authorized the trial court to disregard this court’s 2009 reversal and

remand and permitted the trial court to reimpose its sentence.

        {¶ 9} In opposition, the defense asserted that the trial court was under a mandate

to act in a timely manner, did not do so, and the resulting prejudice occurred when the

Supreme Court issued its decision in Horner.

        {¶ 10} Following the hearing, the trial court concluded that defendant was not

prejudiced by the delay in scheduling a retrial, and that the Horner decision constituted

extraordinary circumstances that justified the reimposition of the sentence that had been

imposed on February 21, 2008, without holding another trial. The court then reimposed
that sentence.   Defendant now appeals and assigns four errors for our review.        For the

sake of convenience, we begin with the third assignment of error that provides:

       “Res judicata and collateral estoppel preclude the State from
       relitigating the validity of Dzelajlija’s indictment when it failed to
       appeal that issue to the Ohio Supreme Court.”

       {¶ 11} Within this assignment of error, defendant asserts that because the State did

not challenge this court’s determination in Dzelajlija II that the indictment was fatally

defective, it is barred by the doctrine of res judicata from raising that challenge before the

trial court on remand.

       {¶ 12} “Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding except an appeal from that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant at the trial, which

resulted in that judgment of conviction, or on an appeal from that judgment.”         State v.

Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, at paragraph nine of the syllabus.

       {¶ 13} We note, however, that a new judicial ruling may be applied to cases that

are pending on the announcement date.              Ali v. State, 104 Ohio St.3d 328,

2004-Ohio-6592, 819 N.E.2d 687; State v. Lynn (1966), 5 Ohio St.2d 106, 108, 214

N.E.2d 226.

       {¶ 14} Here, in light of our remand to the trial court, this matter was not final and

was pending before the trial court at the time of the announcement of the Horner

decision.   Res judicata therefore does not bar the application of the Horner decision to
this matter.    Moreover, under Horner, an intervening decision by a superior court, the

robbery charges herein are not defective.      State v. McCain, Montgomery App. No.

24159, 2011-Ohio-2565; State v. McCuller, Cuyahoga App. No. 94793, 2011-Ohio-610.



       {¶ 15} The third assignment of error is therefore without merit.

       {¶ 16} Defendant’s first, second, and fourth assignments of error are interrelated

and state:

       “I. The trial court erred and violated Dzelajlija’s state and federal
       due process rights when it imposed a sentence without a valid finding
       of guilt.

       II. The trial court lacked jurisdiction to affect this court’s judgment
       in Dzelajlija II.

       IV. The state failed to present extraordinary circumstances to justify
       the trial court’s deviation from the mandate of Dzelajlija II.”

       {¶ 17} Within these assignment of error, defendant asserts that the trial court was

without jurisdiction to reimpose the February 21, 2008 sentence because this court in

Dzelajlija II vacated the convictions, and the mandate from this court ordered that the

matter be remanded to the trial court “for the limited purpose of vacating the

convictions.”

       {¶ 18} As an initial matter, we note that the trial court must follow a mandate from

this court. State v. Gates, Cuyahoga App. No. 82385, 2004-Ohio-1453; State v. Carlisle,

Cuyahoga App. No. 93266, 2010-Ohio-3407. We explained the appellate mandate as

follows:
        “An appellate mandate works in two ways: it vests the lower court on
        remand with jurisdiction and it gives the lower court on remand the
        authority to render judgment consistent with the appellate court’s
        judgment. Under the ‘mandate rule,’ a lower court must “carry the
        mandate of the upper court into execution and not consider the
        questions which the mandate laid at rest.”

        {¶ 19} Carlisle noted that a lower court may rule on issues left open by the

mandate, and that a deviation from an appellate mandate can occur “when external

circumstances have rendered that mandate void or moot.”     Id.

        {¶ 20} Nonetheless, there is no authority to extend or vary the mandate of the

appellate court.   State v. Bell, Cuyahoga App. No. 92037, 2009-Ohio-2138.           Thus,

where this court does not mandate a resentencing hearing, the trial court had no power to

conduct one. State v. Howard, Cuyahoga App. No. 87490, 2006-Ohio-6412. Accord

Bell.

        {¶ 21} Applying the foregoing to this matter, we note that following the release of

Horner “there is no violation for failing to state the culpable mental element. State v.

Segines, 191 Ohio App.3d 60, 2010-Ohio-5112, 944 N.E.2d 1186. The Segines court

explained:

        {¶ 22} “Horner is an intervening decision by a superior court and its holding

requires a deviation from the law of the case we established when reopening Segines’s

appeal.”     Id.

        {¶ 23} Accord State v. McCain, Montgomery App. No. 24159, 2011-Ohio-2565

(Under the Horner analysis, R.C. 2911.02(A)(1) is a strict liability offense); State v.

McCuller, Cuyahoga App. No. 94793, 2011-Ohio-610 (“The supreme court’s analysis in
Horner leads to the conclusion that the offense of robbery under R.C. 2911.(A)(2) is a

‘strict liability’ offense”).

       {¶ 24} Therefore, although this court’s prior remand of this matter indicated that

the convictions were reversed and the case was remanded for a new trial, the trial court,

like this court, continued to be obligated to follow the decisions of superior courts that

may supersede that mandate. By application of Horner, a decision of a superior court,

“there is no violation for failing to state the culpable mental element.” Segines. We

therefore recognize that under Horner, the trial court properly concluded that the robbery

charges herein are not defective.   McCuller.

       {¶ 25} Nonetheless, the mandate issued by this court did not authorize the trial

court to resentence defendant on those charges.     The prior appeal of this matter did not

address the manifest weight argument raised by defendant, so this challenge has not been

resolved and the conviction has not become final.       Therefore the trial court erred in

reimposing the sentence announced on February 21, 2008.           The parties must obtain

finality on the conviction before sentence may be imposed.

       {¶ 26} The first, second, and fourth assignments of error are well taken.       The

judgment of the trial court is reversed insofar as it imposed sentence on the robbery

convictions and we hereby vacate the sentence.

       {¶ 27} It is ordered that appellant recover from appellee costs herein taxed.

       {¶ 28} The court finds there were reasonable grounds for this appeal.
      {¶ 29} 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.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., CONCURS;
KENNETH A. ROCCO, J., CONCURS IN PART AND DISSENTS IN PART (SEE
SEPARATE OPINION ATTACHED).

KENNETH A. ROCCO, J., CONCURRING IN PART AND DISSENTING IN PART:

      {¶ 30} I concur with the majority that the trial court’s judgment of May 10, 2011

should be reversed.    I, however, in lieu of remand, would sua sponte reconsider

Dzelajlija II in order to review the defendant’s assignment      of error concerning the

manifest weight of the evidence.1 I do so in the interests of judicial economy. Upon


      1
        Although “sua sponte” is a fitting motto for the 75th Ranger Regiment, it is often
inappropriate for an appellate court to issue such an order because the parties lose the
opportunity to participate in the decision-making. It would have been a better practice
for one of the parties to have moved to reconsider our decision in Dzelajlija II.
review, if this court’s decision is that the defendant’s convictions are not against the

manifest weight of the evidence, then there is no need for a third trial in this case.    Of

greater concern is whether there is an unexpected jeopardy consequence in having the

trial court conduct a third trial on the merits, particularly since we did not reverse on the

merits of the second trial.

       {¶ 31} It is difficult to think of this case in the context of Colon I, Colon II, and

Horner, supra, without remembering Stan Laurel looking perplexed at Oliver Hardy and

stating “What a fine mess we made Ollie.”
