[Cite as State v. Dzelajlija, 2012-Ohio-913.]

                           [Please see original opinion at 2011-Ohio-6445.]


                  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; CONVICTIONS AND SENTENCE VACATED


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

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

        RELEASED AND JOURNALIZED:                      March 8, 2012
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
T. Allan Regas
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ON RECONSIDERATION

MARY EILEEN KILBANE, P.J.:

       {¶1} The plaintiff-appellee, the state of Ohio has asked this court to reconsider its

December 15, 2011 decision in which we concluded that due to recent changes in the

controlling case law, defendant-appellant, James Dzelajlija, was not entitled to a new trial

due to structural error caused by his indictment.   That opinion recognized, however, that

in defendant’s prior appeal on the merits, his challenge to the manifest weight of the

evidence supporting his robbery convictions was deemed moot and was not addressed.

Consequently, this court determined that the trial court committed reversible error and

acted beyond its mandate in reinstating Dzelajlija’s sentences for those convictions.

       {¶2} Since the release of the December 15, 2011 opinion, the panel that heard

defendant’s prior appeal has denied the State’s motion to reopen the appeal in order to

weigh the evidence supporting defendant’s 2008 robbery convictions.1 Therefore, upon

reconsideration, we note that despite the change in controlling case law, the record of this

particular matter compels us to apply the structural error analysis herein.     Under that

structural error analysis, defendant’s 2008 robbery conviction and sentence must be

vacated due to defective indictments.2


       In this connection, we note that App.R. 26(B) states that “A defendant in a
       1

criminal case may apply for reopening[.]” (Emphasis added.)

      The original decision in this appeal, State v. Dzelajlija, 8th Dist. No. 95851,
       2

2011-Ohio-6445, 2011 WL 6314200, released December 15, 2011, is hereby vacated.
      {¶3} 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, 2007 WL 2269464 (“Dzelajlija I”).

      {¶4} 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.

      {¶5} Defendant appealed to this court. This court concluded 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”), for failing to charge defendant with the requisite mens rea of

recklessness. This court therefore again reversed defendant’s convictions, stated that they

were “vacated,” and remanded the matter to the trial court.       This court additionally


This opinion, issued upon reconsideration, is the court’s journalized decision in this
appeal. See App.R. 22(C); see also S.Ct.Prac.R. 2.2(A)(1).
determined that since the defective indictments constituted structural error, defendant’s

additional challenge to the weight of the evidence supporting his convictions was moot.

State v. Dzelajlija, 8th Dist. No. 91115, 2009-Ohio-1072, 2009 WL 626326 (“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.     Thereafter, 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 two

concurrent seven-year sentences.

          {¶8} On appeal to this court, defendant maintained that this court’s prior mandate

and principles of res judicata barred further proceedings on the original indictment, and
that the trial court acted without jurisdiction and in derogation of his right to due process

in reimposing sentence without a valid finding of guilt. This court concluded that due to

recent changes in the controlling case law, the original indictment could no longer be

deemed structurally defective, but       because the challenge to the manifest weight of the

evidence supporting his conviction had not been decided, the trial court committed

reversible error and acted beyond its mandate in reinstating Dzelajlija’s sentences.

        {¶9} Our opinion therefore reflected that the failure to include a mens rea in an

indictment is no longer deemed to create structural error where it tracks the language

language of the criminal statute, but also reflected that    we were without authority and

lacked the record to determine the manifest weight of the evidence issue raised Dzelajlija

II.   Following release of our December 15, 2011 opinion, the panel that heard Dzelajlija

II declined to reopen the appeal for consideration of that issue.

        {¶10} Moreover, indictments that track the relevant statutory provisions are now

generally reviewed for plain error, rather than structural error.   State v. Andera, 8th Dist.

No. 92306, 2010-Ohio-3304, 2010 WL 2783688; State v. Segines, 191 Ohio App.3d 60,

2010-Ohio-5112, 944 N.E.2d 1186 (8th Dist.); State v. Dunlap, 129 Ohio St.3d 461,

2011-Ohio-4111, 953 N.E.2d 816.            However, we believe that the unresolved issue

regarding the evidentiary support for defendant’s convictions renders the plain error

analysis inappropriate to this matter.    Therefore, due to the unique procedural posture of

this matter, we again apply the structural error analysis set forth in Colon I, in order to

address defendant’s assignments of error.
       {¶11} Defendant’s second, third, and fourth assignments of error are interrelated

and state:

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

       III.   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.

       IV.    The state failed to present extraordinary circumstances to justify the

              trial court’s deviation from the mandate of Dzelajlija II.

       {¶12} In Hedgpeth v. Pulido, 555 U.S. 57, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008),

the United States Supreme Court noted that where error is structural, the verdict must be

set aside without regard as to whether it prejudiced the defendant.

       {¶13} In addition, a trial court must follow a mandate from a reviewing court.

State v. Gates, 8th Dist. No. 82385, 2004-Ohio-1453, 2004 WL 584004. In State v.

Carlisle, 8th Dist. No. 93266, 2010-Ohio-3407, 2010 WL 2857806, 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.”

       {¶14} New judicial rulings may be applied to cases if they 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, 5 Ohio St.2d 106, 108, 214 N.E.2d 226 (1966). However, there is no
authority to extend or vary the mandate of the appellate court. State v. Bell, 8th Dist.

No. 92037, 2009-Ohio-2138, 2009 WL 1243769.

      {¶15} In this matter, the court in Dzelajlija II determined that the robbery charges

were structurally defective and it vacated the convictions.    The mandate from this court

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

the convictions.”   The State did not appeal this decision and it became final.         The

matter was not reindicted and the matter was no longer a pending case at the time the

Horner decision was announced.      Therefore, we conclude that the trial court erred in

considering the matter as pending under the original indictment and in applying Horner

rather than Colon herein.   Moreover, because the matter was no longer a pending case,

given Dzelajlija II’s reversal and remand for vacation of the convictions, we further

conclude that the trial court committed reversible error in failing to follow the mandate

ordering the convictions vacated.

      {¶16}     The    second, third, and fourth assignments of error are well taken.

      {¶17}    Defendant’s first assignment of error states:

      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.

      {¶18} Within this assignment of error, defendant asserts that the trial court erred in

reimposing the February 21, 2008 sentence in the absence of a determination that

defendant was guilty of robbery.
       {¶19} The mandate in Dzelajlija II ordered that the matter be remanded to the trial

court “for the limited purpose of vacating the convictions.”     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.

       {¶20}   The first assignment of error is well taken.

       {¶21} The matter is reversed; convictions and sentence are vacated.

       It is ordered that appellant recover from appellee 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.




MARY EILEEN KILBANE, PRESIDING JUDGE

MARY J. BOYLE, J., CONCURS
KENNETH A. ROCCO, J., CONCURS (SEE SEPARATE CONCURRING OPINION)

KENNETH A. ROCCO, J., CONCURRING:
       {¶22}    Although I fully concur with the majority, I write separately to state once

again that based upon Horner and this court’s inherent authority, I believe that the panel

of Dzelajlija II, 8th Dist. No. 91115, 2009-Ohio-1072, should sua sponte reconsider its

decision in order to review the appellant’s manifest weight of the evidence issue.
