[Cite as State v. Stockwell, 2011-Ohio-4122.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 96143


                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLANT

                                                vs.


                                       SCOTT STOCKWELL
                                                      DEFENDANT-APPELLEE

                         JUDGMENT:
              VACATED IN PART, REVERSED IN PART
                       AND REMANDED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-388748

        BEFORE: Jones, J., Sweeney, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                       August 18, 2011
ATTORNEY FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

BY: Thorin O. Freeman
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
                     ht




1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

James J. McDonnell
75 Public Square
Suite 700
Cleveland, Ohio 44113




LARRY A. JONES, J.:

       {¶ 1} Plaintiff-appellant, the state of Ohio, appeals from the trial court’s November

18, 2010 sentencing judgment entry.   We vacate in part and reverse.

       I.   Procedural History and Facts

       {¶ 2} Stockwell was indicted in 2000 for drug possession with a major drug offender

specification, failure to comply with the order or signal of a police officer, and possessing

criminal tools.   The charges resulted from Stockwell signing for and receiving a package
containing cocaine from a delivery service.    The package was addressed to James Jones and

the residence where it was delivered was owned by Karen Ratliff.     Ratliff and Stockwell had

been acquainted for approximately 20 years.      Stockwell also did not immediately pull his

vehicle over when directed by the police to do so.

       {¶ 3} After a jury trial in 2000, Stockwell was found guilty of all counts and the

specification.   The trial court sentenced him to 22 years in prison, which consisted of a

ten-year sentence on the major drug offender specification, consecutive to a ten-year sentence

on the drug possession charge, and one year each on the failure to comply and possessing

criminal tools charges, to run consecutive to one another.    The sentence has generated four

appeals, spanning 11 years.

       {¶ 4} In the first appeal, this court reversed the trial court’s ten-year sentence on the

major drug offender specification, finding that the “evidence in the record [did] not support

both of the findings needed to justify the additional term of imprisonment * * *.”      State v.

Stockwell (July 26, 2001), Cuyahoga App. No. 78501 (“Stockwell I”).            This court also

vacated the trial court’s sentence on the failure to comply and possessing criminal tools

charges and remanded for resentencing on those charges, finding that the record did not

demonstrate that the court “first considered imposing the minimum * * * sentence and then

decided to depart from the statutorily mandated minimum based on one or both of the

permitted reasons.”    Id.    Stockwell I noted that on remand the trial court will have the
“opportunity to reconsider whether to impose consecutive sentences * * *.”     Id.

          {¶ 5} On remand, the trial court sentenced Stockwell to another 22-year prison term,

consisting of ten years on the major drug offender specification, to run consecutively to ten

years on the drug possession charge and an increased sentence of 17 months on the failure to

comply charge to be served consecutive to 12 months on the possessing criminal tools charge.




          {¶ 6} In the second appeal, this court held that Stockwell I made clear that the

evidence did not warrant a sentence on the major drug offender specification and therefore

vacated the sentence on the specification. State v. Stockwell, Cuyahoga App. No. 82345,

2003-Ohio-5495, ¶ 8 (“Stockwell II”).          Stockwell II also held that      the sentencing

enhancement on the failure to comply charge was a violation of Stockwell’s due process

rights.    Id. at ¶16.   Accordingly, this court vacated the ten-year sentence on the major drug

offender specification, reversed the sentence on the failure to comply charge, and remanded

for resentencing.    Id. at ¶18.

          {¶ 7} A resentencing hearing was held in 2009, six years after the remand, and the

trial court sentenced Stockwell to yet another 22-year term as follows: ten years on the major

drug offender specification, consecutive to ten years on the drug possession charge, and one

year each on the failure to comply and possessing criminal tools, to be served consecutively.

          {¶ 8} A third appeal was taken by Stockwell.        This court vacated the ten-year
sentence on the major drug offender specification, but affirmed the sentence in all other

respects.      State v. Stockwell, Cuyahoga App. No. 93976, 2010-Ohio-4890, ¶8 (“Stockwell

III”).   This court also stated that:

         “Due to the protracted resentencing history in this case and the repeated failure of the
         trial court to follow clear instructions on multiple remands, we direct the
         Administrative Judge of the Court of Common Pleas to reassign this matter to a new
         judge to expeditiously carry this sentence into execution.” Id.

         {¶ 9} On remand, the original sentencing judge was removed from the case and the

case was reassigned to another common pleas judge.        Another resentencing hearing was held

in November 2010.        The trial court sentenced Stockwell to an 11-year prison term as follows:

ten years on the drug possession charge to be served consecutive to one year on the failure to

comply charge, and one year on the possessing criminal tools charge to be served concurrently

with the other charges.      The state now brings this fourth appeal and raises the following

assignment of error for our review: “The trial court erred by reducing Stockwell’s previously

imposed sentence that was affirmed on direct appeal.”

         II.   Law and Analysis

         {¶ 10} The state contends that in Stockwell III this court affirmed the consecutive

sentences on the failure to comply and possessing criminal tools counts and only remanded the

case so that the trial court could vacate the ten-year sentence on the major drug offender

specification.     According to the state, therefore, Stockwell should have been resentenced to a

12-, rather than an 11-, year prison term.      The state cites State v. Carlisle, Cuyahoga App.
No. 93266, 2010-Ohio-3407, in support of its position.
                             1




       {¶ 11} In Carlisle, the defendant was convicted of kidnapping and gross sexual

imposition and sentenced to a three-year prison term.       This court affirmed his conviction
                                                                                                 2




and the Ohio Supreme Court declined to accept his first appeal.       After his appeals, and prior
                                                                  3




to the trial court revoking his appellate bond, Carlisle filed a motion to modify his sentence to

community control sanctions.     In support of his motion, Carlisle contended that he suffered

from various life threatening conditions such that a three-year sentence was a “death

sentence.”   The trial court granted his motion and the state appealed.

       {¶ 12} This court held that the mandate to the trial court in Carlisle’s direct appeal:

       “specifically ordered the trial court to execute Carlisle’s sentence. Both the letter and
       spirit of the mandate required the court to execute Carlisle’s sentence; that is, remand
       him to a penal institution. By modifying Carlisle’s sentence, the court did not execute
       the sentence and therefore failed to obey our mandate.” Carlisle at ¶21, citing State
       v. Craddock, Cuyahoga App. No. 91766, 2009-Ohio-1616, ¶15.

       {¶ 13} This court explained the “mandate rule” 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.’” Carlisle at ¶16, quoting Sprague v.


       1
        Appeal accepted for review, State v. Carlisle, 128 Ohio St.3d 1411, 2011-Ohio-828, 942
N.E.2d 384.
       2
        State v. Carlisle, Cuyahoga App. No. 90223, 2008-Ohio-3818.
       3
        State v. Carlisle, 120 Ohio St.3d 1508, 2009-Ohio-361, 900 N.E.2d 624.
       Ticonic Natl. Bank (1939), 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184.

       {¶ 14} This court noted that an exception to the “mandate rule” exists for

“extraordinary circumstances, such as an intervening decision by a superior court.”        Carlisle

at ¶23, citing Nolan v. Nolan (1984), 11 Ohio St.3d 1, 5, 462 N.E.2d 410.               This court

elaborated that:

       “The supreme court has not defined the term ‘extraordinary circumstances’ in this
       instance, so we give that term its plain meaning as something exceptional in character,
       amount, extent, or degree. Given the very strong requirement that a lower court
       follow the mandate of a superior court, we think that a deviation from an appellate
       mandate can only occur when external circumstances have rendered that mandate void
       or moot. For example, the basis cited in Nolan as an exception to the law of the case
       doctrine—an ‘intervening decision by a superior court’—is one that would plainly
       supersede an appellate mandate. This is because supreme court decisions are binding
       and no lower court is entitled to deviate from them, even if the mandate of an
       intermediate court was to require otherwise. Thacker v. Bd. of Trustees of Ohio
       (1971), 31 Ohio App.2d 17, 21, 285 N.E.2d 380.” Carlisle at id.

       {¶ 15} In opposition to the state’s position that the trial court violated the “mandate

rule,” Stockwell contends that: (1) Stockwell III did not address his assignment of error

relating to the imposition of consecutive sentences on the failure to comply and possessing

criminal tools counts; (2) the state failed to object to the trial court resentencing on the failure

to comply and possessing criminal tools counts; and (3) “[t]his court’s pronunciation that his

sentence was ‘affirmed in all other respects’ [was] mere surplusage, used repeatedly in all

cases that are affirmed in part and vacated or reversed in part.”         We disagree with these

contentions.
       {¶ 16} First, Stockwell III did address Stockwell’s assignment of error challenging the

imposition of consecutive sentences.     Specifically, this court declined to apply   the United

States Supreme Court’s decision in Oregon v. Ice (2009), 555 U.S.160, 129 S.Ct. 711, 172

L.Ed.2d 517, and overruled the assignment of error. Stockwell III at ¶6.

       {¶ 17} Second, the state did object at the resentencing hearing, stating:        “And the

other thing is just a quick objection. I don’t believe this Court has the jurisdiction to actually

resentence today on Counts 2 and 3 [failure to comply and possessing criminal tools].”

Third, this court’s language that Stockwell’s sentence was “affirmed in all other respects” was

not “mere surplusage”: the language was used twice in the opinion, and the express mandate
                                                                      4




was that “the Administrative Judge of the Court of Common Pleas [was] to reassign this

matter to a new judge to expeditiously carry this sentence into execution.”            (Emphasis

added.)

       {¶ 18} In light of the above, the state’s assignment of error is sustained.            The

concurrent sentences on the failure to comply and possessing criminal tools counts is vacated

and the consecutive sentences on those charges are reinstated.     On remand, the trial court is

instructed to issue a new sentencing entry not inconsistent with this opinion.

       Judgment reversed.

       It is ordered that appellant recover of appellee his costs herein taxed.


       4
          See ¶8 and 9.
      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. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

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

Rule 27 of the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE

JAMES J. SWEENEY, P.J., and
SEAN C. GALLAGHER, J., CONCUR
