[Cite as State v. Cunigan, 195 Ohio App.3d 162, 2011-Ohio-4010.




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO


THE STATE OF OHIO,                                     :

        Appellee,                                      :          C.A. CASE NO.        23872

v.                                                     :          T.C. NO.   98CR2643

CUNIGAN,                                               :          (Criminal appeal from
                                                                  Common Pleas Court)
        Appellant.                                     :


                                            ..........

                                           OPINION

                        Rendered on the        12th    day of      August    , 2011.

                                            ..........

        Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Laura M.
        Woodruff, Assistant Prosecuting Attorney, for appellee.

        Adrian King, for appellant.

                                            ..........

        DONOFRIO, Judge.

        {¶ 1} Defendant-appellant, Shawn Cunigan, appeals a decision of the

Montgomery County Common Pleas Court resentencing him to 18 years in prison

for two counts of drug trafficking.

        {¶ 2} In 1999, following a jury trial, Cunigan was convicted of one count of

trafficking in cocaine in an amount between 10 and 25 grams, a second-degree

felony, and one count of trafficking in cocaine in an amount between 25 and 100
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grams, a first-degree felony. The trial court sentenced him to a total prison term of

18 years. This court affirmed Cunigan’s conviction. State v. Cunigan (Sept. 22,

2000), Montgomery App. No. 17924.

       {¶ 3} On September 18, 2008, due to a sentencing error concerning

postrelease-control notification, the trial court conducted a resentencing hearing.

Cunigan requested a sentence modification, and the trial court informed him that it

could not do so by law, and it resentenced him to 18 years in prison. Cunigan

appealed that decision to this court. We reversed the sentence on the authority of

State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250. State v. Cunigan, 185 Ohio

App.3d 332, 2009-Ohio-7042.        We reversed his sentence and remanded the

matter, finding that the trial court did have discretion to modify appellant’s sentence.

       {¶ 4} Consequently, on February 9, 2010, the trial court conducted a new

resentencing hearing. At the hearing, Cunigan testified as to his conduct during

his 11 years in prison. The court took Cunigan’s testimony into consideration. It

also considered reports from the Ohio Courts Network and Ross Correctional

Institution, which set out various rule violations Cunigan committed while in prison

in addition to numerous other factors. The trial court then once again resentenced

Cunigan to 18 years in prison.

       {¶ 5} Cunigan’s sole assignment of error states:

       {¶ 6} “A defendant has been denied due process of law when a court

sentences a defendant influenced by unchallenged information contained in

reports.”

       {¶ 7} Cunigan argues that at his resentencing hearing the trial court erred in
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considering “extrajudicial” information. Specifically he claims that the court should

not have considered the Ohio Courts Network and Ross Correctional Institution

reports. These reports included allegations of rule violations that occurred while

Cunigan was serving his prison term.        Some of the violations were described,

others were not.     Cunigan argues that he was not given the opportunity to

challenge these allegations or to provide descriptions of the undescribed violations.

 Because his sentence was influenced by unchallenged information, Cunigan asks

this court to remand this matter with a directive to permit him to challenge the

contents of any reports used in his sentencing.

       {¶ 8} The Ohio Supreme Court has held that in reviewing felony sentences,

the appellate courts must use a two-pronged approach. “First, they must examine

the sentencing court's compliance with all applicable rules and statutes in imposing

the sentence to determine whether the sentence is clearly and convincingly

contrary to law. If this first prong is satisfied, the trial court's decision in imposing

the term of imprisonment shall be reviewed under an abuse-of-discretion standard.”

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶ 4, citing State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856.

       {¶ 9} First, Cunigan's sentence is not contrary to law. The court sentenced

Cunigan to ten years for the first-degree felony and eight years for the

second-degree felony.     These sentences are within the range of sentences for

first- and second-degree felonies. See R.C. 2929.14(A)(1)(2). Furthermore, the

court stated in sentencing appellant that it had considered the principles and

purposes of sentencing as required by R.C. 2929.11. And it stated that it had
                                                                                        4

balanced the seriousness and recidivism factors as required by R.C. 2929.12.

       {¶ 10} Second, the trial court did not abuse its discretion in sentencing

Cunigan.

       {¶ 11} Cunigan is barred from arguing that the trial court should not have

considered his prison conduct under the doctrine of invited error.

       {¶ 12} “‘The doctrine of invited error is a corollary of the principle of equitable

estoppel. Under the doctrine of invited error, an appellant, in either a civil or a

criminal case, cannot attack a judgment for errors committed by himself or herself;

for errors that the appellant induced the court to commit; or for errors into which the

appellant either intentionally or unintentionally misled the court, and for which the

appellant is actively responsible. Under this principle, a party cannot complain of

any action taken or ruling made by the court in accordance with that party's own

suggestion or request.’”      (Citations omitted.)     Daimler/Chrysler Truck Fin. v.

Kimball, Champaign App. No. 2007-CA-07, 2007-Ohio-6678, at ¶ 40, quoting 5

Ohio Jurisprudence 3d (1999, Supp.2007) 170-171, Appellate Review, Section 448.

       {¶ 13} Cunigan himself placed his prison conduct at issue when he testified

regarding his “hole shots” (time spent in solitary confinement), stated that he

“stay[s] out of trouble” in prison, and stated that “it’s a good record—considered to

what maybe 80 percent of those guys got in the institution.”           He also testified

regarding some programs he became involved with in prison.                 Thus, it was

reasonable for the court to have considered the prison reports given that Cunigan

invited the court to consider his prison conduct. Cunigan cannot now argue that it

was error for the court to do so.
                                                                                        5

       {¶ 14} Additionally, Cunigan’s prison conduct was only one of many factors

that the trial court considered in resentencing him.       The court also considered

Cunigan’s statements, Cunigan’s counsel’s statement on his behalf, the letters

Cunigan provided to the court from his family members, the prior presentence

investigation, Cunigan’s seven prior felony convictions, his prior prison sentences,

and his history of lack of employment. Thus, the court had a wide variety of factors

on which it based its decision.

       {¶ 15} As an aside, we also note that later the same year, after the court

resentenced Cunigan, the Ohio Supreme Court decided the case of State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. Several years after being convicted

of multiple felonies, Fischer moved for resentencing after the Ohio Supreme Court

issued Bezak, 114 Ohio St.3d 94 (holding that a sentence that omits a statutorily

mandated postrelease-control term is void), arguing that the trial court had not

properly advised him about postrelease control. The trial court granted Fischer a

resentencing hearing where it properly notified Fischer of his postrelease-control

obligations and re-imposed the remainder of Fischer’s sentence.

       {¶ 16} Fischer appealed, asserting that because his original sentence was

void, his first direct appeal was not valid and his new appeal was actually his first

direct appeal, so he was free to raise any and all issues relating to his conviction.

       {¶ 17} The Ohio Supreme Court reaffirmed its holding in Bezak that “ ‘[w]hen

a defendant is convicted of or pleads guilty to one or more offenses and

postrelease control is not properly included in a sentence for a particular offense,

the sentence for that offense is void,’ but with the added proviso that only the
                                                                                   6

offending portion of the sentence is subject to review and correction.” Id. at ¶ 27.

The court went on to modify Bezak, however, holding that “[t]he new sentencing

hearing to which an offender is entitled under State v. Bezak is limited to proper

imposition of postrelease control” instead of an entirely new sentencing hearing.

Id. at paragraph two of the syllabus; ¶ 28-29.

      {¶ 18} Thus, under the new law of Fischer, Cunigan would not even have

been entitled to a new sentencing hearing. The trial court would have been able to

review only the portion of his sentence dealing with postrelease control.

      {¶ 19} The trial court in this case ultimately imposed the same sentence as it

had originally imposed. Thus, whether Cunigan’s prison record was considered or

not, the court still meted out the same sentence.

      {¶ 20} In conclusion, the trial court did not abuse its discretion in

resentencing appellant to 18 years in prison.

      {¶ 21} Accordingly, appellant’s sole assignment of error is without merit.

      {¶ 22} For the reasons stated above, the trial court’s judgment is hereby

affirmed.

                                                                 Judgment affirmed.

                                    ..........


      GRADY, P.J. and HALL, J., concur.

      Gene Donofrio, J., of the Seventh District Court of Appeals, sitting by
assignment.

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