[Cite as State v. Hess, 2012-Ohio-3090.]


                                        COURT OF APPEALS
                                     MORROW COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Patricia A. Delaney, P.J.
       Plaintiff-Appellee                      :      Hon. William B. Hoffman, J.
                                               :      Hon. Sheila G. Farmer, J.
-vs-                                           :
                                               :      Case No. 11-CA-11
JOHN W. HESS, JR.                              :
                                               :
                                               :
       Defendant-Appellant                     :      OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Morrow County Court of
                                                   Common Pleas, Case No. 2009CR0019



JUDGMENT:                                          DISMISSED




DATE OF JUDGMENT ENTRY:                            July 2, 2012




APPEARANCES:

For Appellant:                                        For Appellee:

JOHN W. HESS, JR., PRO SE                             CHARLES HOWLAND
North Central Corr. Inst.                             MORROW COUNTY PROSECUTOR
670 Marion/Williamsport Rd., East
P.O. Box 1812                                         JOCELYN STEFANCIN
Marion, OH 43301-1812                                 Assistant Prosecutor
                                                      60 E. High St.
                                                      Mt. Gilead, OH 43338
Hoffman, J.
         {¶1} Defendant-Appellant John W. Hess, Jr. appeals the October 12, 2011

judgment entry entered by the Morrow County Court of Common Pleas denying

Hess’s Motion to Vacate Void Sentence. Plaintiff-Appellee is the State of Ohio.

                               STATEMENT OF THE CASE1

         {¶2} On September 22, 2009, Hess was found guilty by a jury of gross sexual

imposition, in violation of R.C. 2907.05(A)(4), a felony of the third degree, and

disseminating matter harmful to juveniles, in violation of R.C. 2907.31(A)(1), a first

degree misdemeanor. The trial court classified Hess as a Tier III sex offender.

         {¶3} Via judgment entry of December 17, 2009, the trial court sentenced Hess

to four years in prison on the gross sexual imposition charge with one year mandatory.

The trial court further ordered Hess to serve six months in jail and pay a fine of $1,000

on the dissemination charge.

         {¶4} Hess appealed his conviction and sentence to this Court in State v.

Hess, 5th Dist. No. 2009CA0016, 2010-Ohio-3692 (“Hess I”). We affirmed Hess’s

conviction.

         {¶5} The State, however, appealed Hess’s sentence in State v. Hess, 5th

Dist. No. 2009CA0015, 2010-Ohio-3695 (“Hess II”). In Hess II, we applied the holding

in State v. Thomas, 3rd Dist. No. 1-04-88, 2005-Ohio-4616, to conclude the trial court

was required to impose a mandatory prison term for the entire length of the sentence

prescribed and not create a “hybrid” sentence. We remanded the case to the trial

court for resentencing in accordance with our Opinion.




1
    The underlying facts are unnecessary for the disposition of this appeal.
      {¶6} While Hess’s resentencing pursuant to Hess II was pending before the

trial court, this Court addressed a similar sentencing issue in State v. May, 5th Dist.

No. 2010CA2, 2010-Ohio-4625, issued September 27, 2010. In that case, the Morrow

County Court of Common Pleas issued a sentence for aggravated vehicular assault, a

third degree felony, with only a portion of the term being mandatory.         The State

appealed the sentence.      Upon further analysis, this Court declined to adopt the

previous rationale of Hess II. Instead, this Court held the trial court did not abuse its

discretion in imposing a one-year “mandatory” term, even though the “stated term”

was ordered to be two years. Id. at ¶ 18-19.

      {¶7} In the case sub judice, the trial court held a resentencing hearing on

December 27, 2010. By judgment entry issued March 2, 2011, the trial court relied

upon this Court’s intervening decision in State v. May, rather than Hess II, and

reimposed the sentence adopted at the original sentencing hearing on November 20,

2009. Hess was again sentenced to a stated term of four year prison term with only

one year being mandatory.

      {¶8} Hess did not appeal the March 2, 2011 judgment entry.

      {¶9} Hess filed motions for judicial release on May 17, 2011 and August 19,

2011. The trial court denied the motions because Hess is not an eligible offender.

      {¶10} On September 22, 2011, Hess filed a Motion to Vacate Void Sentence.

The trial court denied the motion on October 12, 2011.

      {¶11} It is from that decision Hess now appeals, raising the following

assignment of error:
        {¶12} “THE TRIAL COURT VIOLATED DUE PROCESS AND EQUAL

PROTECTION OF LAW.            OHIO CONST. ARTICLE I, SECTIONS 2, 4, 10, 16;

ARTICLE IV, SECTION 4; UNITED STATES CONST. AMENDMENTS 4, 5, 6, AND

14.”

        {¶13} Hess argues in his pro se appeal the March 2, 2011, resentencing is

void.   Specifically, he challenges the validity of the four year stated term of his

sentence but not the one year mandatory term.

        {¶14} As stated supra, Hess was convicted of gross sexual imposition, in

violation of R.C. 2907.05(A)(4), a felony of the third degree. The trial court sentenced

Hess to a four year prison term with one year mandatory. The State appealed the

sentence. The State argued pursuant to R.C. 2929.14 and R.C. 2907.05(C)(2), the

trial court was required to chose a prison term from the range prescribed and the

prison term was mandatory for the full length of the sentence imposed. We agreed.

        {¶15} In Hess II, we applied the holding of State v. Thomas, 3rd Dist. No. 1-04-

88, 2005-Ohio-4616, to conclude the trial court was required to impose a mandatory

prison term for the full length of the sentence prescribed and not create a “hybrid

sentence.” Id. at 18-20. We reversed Hess’s sentence and remanded the case to the

trial court for resentencing. We stated, “the trial court in the case sub judice was

required to impose a mandatory prison term for the entire length of the sentence

prescribed. The statutory requirement the court impose a definite prison term from

one of the prison terms prescribed does not allow the trial court to create a hybrid

sentence.” Id. at 21.
       {¶16} While the Hess case was pending in the trial court for resentencing, this

Court decided State v. May, 5th Dist. No. 2010CA2, 2010-Ohio-4625. May declined to

adopt the rationale of Hess II and found a hybrid sentence was permitted under Ohio

sentencing laws.      On March 2, 2011, the trial court applied May to Hess’s

resentencing and resentenced Hess to his original sentence.

       {¶17} We find the trial court’s application of May to Hess’s resentencing

violates of the law of the case doctrine.

       {¶18} The law of the case doctrine establishes the “decision of a reviewing court

in a case remains the law of that case on the legal questions involved for all subsequent

proceedings in the case at both the trial and reviewing levels.” Pipe Fitters Union Local

No. 392 v. Kokosing Constr. Co., Inc., 81 Ohio St.3d 214, 218, 690 N.E.2d 515 (1998),

quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). “[A]n inferior court

has no discretion to disregard the mandate of a superior court in a prior appeal in the

same case.” Nolan, at syllabus.

       {¶19} The decision rendered in Hess II resolved the legal questions for the

subsequent resentencing.       It was error for the trial court to apply May to the

resentencing of Hess rather than to follow the law of the case of Hess II.

       {¶20} That being said, Appellant failed to timely appeal the trial court’s March

2, 2011 resentencing entry. Had he done so, this Court likely would have reversed

based upon a law of the case analysis discussed supra.             We find Appellant’s

subsequent Motion to Vacate Void Sentence which attempts to re-raise the same

issues as previously reviewed is merely a collateral attack on the trial court’s March 2,

2011 resentencing. Having not timely appealed that judgment, and finding nothing in
the resentencing entry which would serve to render it void, we dismiss Appellant’s

instant appeal.

By: Hoffman, J.

Farmer, J. concurs,

Delaney, P.J dissents

                                   s/ William B. Hoffman _____________________
                                   HON. WILLIAM B. HOFFMAN



                                   HON. PATRICIA A. DELANEY



                                   s/ Sheila G. Farmer
                                   HON. SHEILA G. FARMER
Delaney, P.J., dissenting.

      {¶21} I respectfully dissent from the majority opinion.

      {¶22} I would overrule Hess’s sole Assignment of Error based on the trial

court’s application of State v. May, 5th Dist. No. 2010CA2, 2010-Ohio-4625, and affirm

the trial court’s resentencing entry and denial of Hess’s motion to vacate a void

sentence.

      {¶23} Where a trial court fails to impose a sentence in accordance with

statutorily mandated terms, it is void. State v. Harris, -- Ohio St.3d --, 2012-Ohio-

1908, -- N.E.2d --, ¶ 7 citing Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d

811 (1964); State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶

8. In this case, the trial court imposed Hess’s original sentence in accordance with

statutorily mandated terms as established by this Court in the intervening case of

State v. May, 5th Dist. No. 2010CA2, 2010-Ohio-4625.

      {¶24} We stated in State v. May:

             We recognize that subsequent to the filing of the briefs in this

      matter, this Court decided State v. Hess, Morrow App. No.2009CA0015,

      2010-Ohio-3695, in which we applied the holding of State v. Thomas,

      Allen App.No. 1-04-88, 2005-Ohio-4616, to conclude the trial court was

      required to impose a mandatory prison term for the entire length of the

      sentence prescribed and not create a “hybrid sentence.” Id. at ¶ 32.

      However, the Generally Assembly has not specifically disallowed the

      type of partially mandatory sentence crafted by the trial court in the case

      sub judice, and, as R.C. 2929.01(FF) and R.C. 2929.20(C)(2) indicate, a
      “stated term” is not necessarily synonymous with a “mandatory term.” It

      is well-established that the sentencing provisions set forth in the Revised

      Code are to be strictly construed against the state and liberally construed

      in favor of the accused. See, e.g., State v. Fanti, 147 Ohio App.3d 27,

      30, 768 N.E.2d 718, 2001-Ohio-7028; R.C. 2901.04(A).

             Accordingly, we decline to herein adopt our previous rationale in

      Hess. We find the trial court acted within its discretion in imposing a

      one-year “mandatory” term, which comports with R.C. 2903.08(D)(1) and

      is within the range of penalties for a third-degree felony, even though the

      “stated term” was ordered to be two years.

State v. May, supra, at ¶18-19.

      {¶25} While not explicitly stated, I would find State v. May abrogated Hess II.

This District has followed State v. May in State v. Thompson, 5th Dist. No.

10CAA020014, 2010-Ohio-5449 and State v. Martin, 5th Dist. No. 2011-CA-81, 2012-

Ohio-1405. I reconsider my prior position in Hess II based on the analysis set forth in

State v. May, supra, as have Judge Edwards and Judge Hoffman in State v. May,

supra and State v. Thompson, supra, respectively.

      {¶26} The trial court must sentence a defendant pursuant to Ohio sentencing

laws. This Court decided State v. May on September 27, 2010, while the resentencing

in the present case was pending before the trial court. Hess was resentenced on

March 2, 2011 after our decision in State v. May. At the time of resentencing, this

Court interpreted Ohio sentencing laws to permit a hybrid sentence. We find no error
for the trial court to follow the intervening guidance of State v. May in reimposing

Hess’s original sentence.

         {¶27} Accordingly, I would overrule Hess’s sole Assignment of Error.



                                         s/ Patricia A. Delaney
                                         HON. PATRICIA A. DELANEY

              IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT


                                         :
STATE OF OHIO                            :
                                         :
   Plaintiff - Appellee                  :       JUDGMENT ENTRY
                                         :
                                         :
-vs-                                     :
                                         :       Case No.   11-CA-11
JOHN W. HESS, JR.                        :
                                         :
   Defendant - Appellant                 :
                                         :


       For the reason stated in our accompanying Opinion on file, this appeal is ordered

dismissed. Costs assessed to Appellant.




                                         s/ William B. Hoffman
                                         HON. WILLIAM B. HOFFMAN



                                         HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer
 HON. SHEILA G. FARMER
