[Cite as State v. Dzelajlija, 136 Ohio St.3d 346, 2013-Ohio-3724.]




           THE STATE OF OHIO, APPELLANT, v. DZELAJLIJA, APPELLEE.
        [Cite as State v. Dzelajlija, 136 Ohio St.3d 346, 2013-Ohio-3724.]
Criminal law—Appeals—Remand to trial court—Resentencing on remand
        improper when manifest-weight issue unresolved on appeal.
 (No. 2012-0651—Submitted February 27, 2013—Decided September 3, 2013.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 95851,
                                      2012-Ohio-913.
                                 ____________________
        PFEIFER, J.
                                       BACKGROUND
        {¶ 1} In 2006, appellee, James Dzelajlija, was found guilty of two counts
of robbery, R.C. 2911.02. He was sentenced to two concurrent terms of seven
years’ imprisonment and five years of postrelease control. On appeal, the court of
appeals determined that the trial court had admitted inadmissible and prejudicial
evidence. The appellate court reversed the convictions and granted Dzelajlija a
new trial. State v. Dzelajlija, 8th Dist. Cuyahoga No. 88805, 2007-Ohio-4050.
        {¶ 2} After a retrial in 2008, Dzelajlija was again found guilty of two
counts of robbery and again sentenced to two concurrent seven-year terms, but
this time with three years of postrelease control.
        {¶ 3} Dzelajlija appealed, raising two assignments of error. His first
assignment argued that the indictment was defective for failing to state a culpable
mental state for either offense. His second contended that the convictions were
against the manifest weight of the evidence. The court of appeals reversed on the
first ground, concluding that the indictment was defective and that the defects
amounted to structural error based on our decisions in State v. Colon, 118 Ohio
St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, and State v. Colon, 119 Ohio St.3d
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204, 2008-Ohio-3749, 893 N.E.2d 169. Accordingly, the court of appeals vacated
the convictions. The court determined that the second assignment of error was
moot, and the court reversed the judgment and remanded for further proceedings
consistent with its decision. State v. Dzelajlija, 8th Dist. Cuyahoga No. 91115,
2009-Ohio-1072 (“Dzelajlija II”).
       {¶ 4} Over a year later, and before a retrial took place, this court decided
State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, which
overruled both Colon decisions. The trial court held a hearing to address the
effect of the Horner decision on this case. It determined that the grounds for
reversal no longer existed and reimposed the sentence of two concurrent seven-
year prison terms followed by three years of postrelease control.
       {¶ 5} Dzelajlija appealed. The court of appeals stated:


       [A]lthough 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. * * * We therefore recognize that under Horner, the trial
       court properly concluded that the robbery charges herein are not
       defective.


State v. Dzelajlija, 8th Dist. Cuyahoga No. 95851, 2011-Ohio-6445, 2011 WL
6314200, ¶ 24 (“Dzelajlija III”). The court nevertheless reversed, finding that an
issue remained outstanding: Dzelajlija’s argument regarding the manifest weight
of the evidence that had earlier been declared moot and had never been resolved.
Id. at ¶ 25. The court of appeals concluded that because there was an outstanding
issue on appeal, the conviction had not become final and, therefore, the sentence
should not have been reimposed. Remarking on the confused history of this case,




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one of the judges, who dissented in part, was reminded of that immortal Laurel
and Hardy phrase “another fine mess.” He wasn’t wrong.
        {¶ 6} Then, in the decision that is before us today, the court of appeals
reconsidered its holding. It determined that even though Horner had overruled
the Colon cases, the structural-error analysis from Colon was still applicable to
this case. State v. Dzelajlija, 8th Dist. Cuyahoga No. 95851, 2012-Ohio-913,
2012 WL 759145 (“Dzelajlija IV”). Then without much structural-error analysis,
the court of appeals concluded:


        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.


Id. at ¶ 15.
        {¶ 7} Accordingly, the court of appeals reversed the judgment and
vacated the convictions and the sentences.
        {¶ 8} We granted the state’s discretionary appeal. 132 Ohio St.3d 1423,
2012-Ohio-2729, 969 N.E.2d 270.




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                                      ANALYSIS
       {¶ 9} The sole proposition of law propounded in this case states that
“[a]n inferior court may deviate from the mandate of a reviewing court when an
intervening decision from a superior court justifies such deviation.” We consider
this proposition of law to be self-evident, and unfortunately, it is not particularly
helpful in providing justice to the parties before us.
       {¶ 10} In defending the court of appeals’ decision, Dzelajlija’s argument
before this court depends in large part on his claim that the court of appeals issued
a mandate in Dzelajlija II “for the limited purpose of vacating the convictions.”
Although the court in Dzelajlija IV made the same claim, we have been unable to
find any original language or document in the record that states that the mandate
was “for the limited purpose of vacating the convictions.” Only Dzelajlija and the
court of appeals, purportedly quoting itself, have used that language.
       {¶ 11} Before reconsidering its decision, the court of appeals interpreted
Dzelajlija II (as noted earlier) as reversing and remanding the case for a new trial.
Dzelajlija III, 2011-Ohio-6445, ¶ 24 (“this court’s prior remand of this matter [in
Dzelajlija II] indicated that the convictions were reversed and the case was
remanded for a new trial”). But there is no such language in Dzelajlija II. The
convictions were vacated, 2009-Ohio-1072, ¶ 4, and the mandate states only:
“Judgment reversed and case remanded to the lower court for further proceedings
consistent with this opinion.” Id. at ¶ 29.
       {¶ 12} Based on the totality of the record before us, we are persuaded that
the judge who concurred in part and dissented in part in Dzelajlija III had it right.
He concurred in the judgment, which stated that the sentences could not be
reimposed, because there was an outstanding issue on appeal. He also stated that
the court of appeals should rule on the outstanding issue: whether Dzelajlija’s
convictions were against the manifest weight of the evidence. Id., 2011-Ohio-
6445, ¶ 30 (Rocco, J., concurring in part and dissenting in part).




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       {¶ 13} Dzelajlija’s convictions were vacated in Dzelajlija II based on two
cases from this court that we have repudiated.         On remand, the trial court
resentenced Dzelajlija. The sentence was improper because Dzelajlija’s manifest-
weight argument had not yet been resolved. Accordingly, we remand this case to
the court of appeals with instructions to consider this outstanding issue.
                                                                 Judgment reversed
                                                                and cause remanded.
       O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and O’NEILL,
JJ., concur.
       FRENCH, J., dissents and would dismiss the appeal as having been
improvidently accepted.
                             ____________________
       Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and T.
Allan Regas, Assistant Prosecuting Attorney, for appellant.
       Robert L. Tobik, Cuyahoga County Public Defender, and Cullen Sweeney
and John T. Martin, Assistant Public Defenders, for appellee.
                           ________________________




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