[Cite as State v. Miller, 2013-Ohio-1799.]


                   Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98817



                                       STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.

                                  CHRISTOPH MILLER
                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-408458

        BEFORE:           McCormack, J., Jones, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: May 2, 2013
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, OH 44113-2098


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: T. Allan Regas
Kristen L. Sobieski
Assistant County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} Defendant-appellant, Christoph Miller (“Miller”), appeals the trial court’s

denial of his motion for resentencing. On July 26, 2012, the trial court held a hearing on

Miller’s motion for resentencing and determined that resentencing was not warranted

under existing law. For the reasons that follow, we affirm the trial court’s decision.

                         Substantive Facts and Procedural History

       {¶2} On January 30, 2002, a jury found Miller guilty of intimidation, aggravated

burglary, kidnapping, aggravated robbery, felonious assault, and rape. He was sentenced

on February 12, 2002, to an aggregate prison term of 40 years. On March 12, 2002,

Miller appealed his conviction and sentence. Upon appeal, on January 16, 2003, this

court affirmed Miller’s conviction.          However, finding that the trial court erred in

imposing consecutive sentences without making a specific finding regarding

proportionality, we remanded for resentencing. 1 Miller subsequently appealed to the

Ohio Supreme Court, which declined jurisdiction.2



           See State v. Miller, 8th Dist. No. 80999, 2003-Ohio-164.
       1




           See State v. Miller, 99 Ohio St.3d 1412, 2003-Ohio-2454, 788 N.E.2d 648. While this
       2


appeal was pending, Miller filed a motion for new trial or petition for postconviction relief. After a
hearing, the trial court denied Miller’s motion, which he appealed. Thereafter, we affirmed the trial
court’s decision, and the Ohio Supreme Court declined further review of Miller’s postconviction
petition. See State v. Miller, 8th Dist. No. 82100, 2003-Ohio-2320; State v. Miller, 100 Ohio St.3d
1423, 2003-Ohio-5253, 797 N.E.2d 91.
       {¶3} Upon remand, and pursuant to this court’s order to make consecutive

sentence findings, the trial court, on October 26, 2004, resentenced Miller to an aggregate

prison term of 40 years. Once again, Miller appealed. On September 1, 2005, we

affirmed the trial court’s decision, finding that the trial court made the necessary findings

and supporting rationale for Miller’s more-than-minimum, maximum, and consecutive

sentence.3 Miller then appealed this decision to the Supreme Court, which reversed and

remanded Miller’s sentence in order that it comply with the Supreme Court’s

pronouncement in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.4

       {¶4} On September 13, 2006, shortly after the Supreme Court’s remand, Miller

filed another motion for new trial or petition for postconviction relief. The trial court

denied this motion on May 23, 2007. Miller also filed a request for findings of fact and

conclusions of law, which the trial court also denied. Miller again appealed the court’s

denial of a new trial, and such denial was affirmed on appeal.5 Miller sought review of

this decision by the Supreme Court; however, it declined jurisdiction.6

       {¶5} On February 11, 2011, Miller filed a motion for resentencing, pursuant to

the post-Foster remand ordered by the Supreme Court in 2006. 7                     Thereafter, a


           State v. Miller, 8th Dist. No. 85564, 2005-Ohio-4583.
       3




          In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, 847
       4


N.E.2d 1173.

           State v. Miller, 8th Dist. No. 90035, 2008-Ohio-2350.
       5




           State v. Miller, 119 Ohio St.3d 1505, 2008-Ohio-5467, 895 N.E.2d 567.
       6




           In re Ohio Criminal Sentencing Statutes Cases.
       7
resentencing hearing was scheduled and then rescheduled, in April 2012. The trial court

ordered an abbreviated presentence investigation report (“PSI”) and an institutional

summary on April 17, 2012. On July 26, 2012, the trial court held a hearing on Miller’s

motion for resentencing. At the conclusion of the hearing, the court denied Miller’s

motion for resentencing, concluding that Miller’s sentence complies with the present

guidelines in sentencing under H.B. 86.

                                 Assignments of Error

      {¶6} Miller now appeals the trial court’s denial of his motion for resentencing.

He assigns the following errors for our review:

      I. Defendant was denied due process of law when the court ruled that
      defendant was not entitled to a full resentencing as ordered by the Ohio
      Supreme Court.

      II. Defendant was denied due process of law when the court failed to
      conduct a de novo resentencing as ordered by the Ohio Supreme Court.

      III. Defendant was denied due process of law when defendant was not
      resentenced in accordance with the mandate of the Ohio Supreme Court
      with[in] a reasonable period of time.
                                   Law and Analysis

                                I. Miller’s Resentencing

      {¶7} Miller argues that the trial court erred in denying his motion for resentencing

and in denying him an opportunity for a de novo resentencing.          For the following

reasons, we disagree.

      {¶8} On January 30, 2002, Miller was convicted of intimidation, aggravated

burglary, kidnapping, aggravated robbery, felonious assault, and rape, and he was
sentenced to an aggregate prison term of 40 years. Miller appealed his conviction and

sentence. Upon appeal, this court affirmed Miller’s conviction; however, we remanded

to the trial court for resentencing, finding error in the imposition of consecutive

sentences.8

       {¶9} Upon remand, on October 26, 2004, the trial court resentenced Miller to an

aggregate term of 40 years, the same sentence originally imposed, with additional

findings consistent with this court’s order. Miller again appealed his sentence. We

affirmed the sentence, finding no error in the trial court’s imposition of the sentence:

       With regard to the court’s recitation of the factors contained in R.C.
       2929.14(B), Miller is correct that mere recitation alone is insufficient as the
       trial court is required to cite its reasons on the record in accord with R.C.
       2929.19(B)(2)(c). However, the record reflects that prior to imposing
       sentence, the trial court outlined its rationale for imposing its sentence. The
       court found that the sentence was necessary to protect the public, that the
       punishment was a necessary and appropriate punishment for Miller, and that
       the harm was so great and unusual that a single prison term did not
       adequately reflect the seriousness of the conduct. (Tr. at 11.) The court then
       noted the factors utilized in reaching this conclusion, which included the
       following: the planning and precalculation involved, the fact that Miller laid
       in wait for the victim, the coordination with another individual to bring
       about the crime, and the fact that Miller caused emotional and physical
       harm to the victim and showed no remorse. (Tr. at 11-12.) The court then
       found that the use of terror was unnecessary, that the crime was of a sexual
       and violent nature, that Miller committed the worst forms of the offenses of
       both kidnapping and rape, that his conduct was outrageous, and that he
       prayed on an innocent victim. (Tr. at 12.) Finally, and before pronouncing
       sentence, the court found that the sentence was not disproportionate to the
       crime. (Tr. at 12.)




           Miller, 8th Dist. No. 80999, 2003-Ohio-164.
       8
       It is clear from the record and the court’s recitation of both the statutory

       factors for imposing more than the minimum sentence and the supporting

       rationale, that Miller was not deprived of his due process rights when more

       than the minimum sentence was imposed.

Miller, 8th Dist. No. 85564, 2005-Ohio-4583, ¶ 14, 15.

       {¶10} The Supreme Court, however, reversed and remanded Miller’s sentence in

order to comply with its pronouncements in Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
            9
N.E.2d 470.     In Foster, the Supreme Court held that the findings required by the existing

R.C. 2929.14 were unconstitutional:

       Because R.C. 2929.14(B) and (C) and 2929.19(B)(2) require judicial

       fact-finding before imposition of a sentence greater than the maximum term

       authorized by a jury verdict or admission of the defendant, they are

       unconstitutional. Because R.C. 2929.14(E)(4) and 2929.41(A) require

       judicial finding of facts not proven to a jury beyond a reasonable doubt or

       admitted by the defendant before imposition of consecutive sentences, they

       are unconstitutional. Because R.C. 2929.14(D)(2)(b) and (D)(3)(b) require

       judicial finding of facts not proven to a jury beyond a reasonable doubt or

       admitted     by   the    defendant,    before    repeat-violent-offender    and

       major-drug-offender     penalty enhancements        are   imposed, they are


         In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, 847
       9


N.E.2d 1173.
       unconstitutional. Apprendi [v. New Jersey], 530 U.S. 466, 120 S.Ct. 2348,

       147 L.Ed.2d 435; Blakely [v. Washington], 542 U.S. 296, 124 S.Ct. 2531,

       159 L.Ed.2d 403.

Foster at ¶ 83.

       {¶11} Thereafter, on February 11, 2011, Miller petitioned the court for

resentencing pursuant to the Supreme Court’s post-Foster remand. However, following

the Supreme Court’s decision in Foster, Ohio’s sentencing law changed once again. On

September 30, 2011, Ohio’s General Assembly enacted Am.Sub. H.B. 86, which, in

effect, revived the requirement that trial courts make findings before imposing

consecutive sentences under R.C. 2929.14(C). State v. Bonner, 8th Dist. No. 97747,

2012-Ohio-2931, ¶ 5.

       {¶12} The statute, as amended by H.B. 86, requires a trial court to make specific

findings when imposing consecutive sentences. Under current R.C. 2929.14(C), when

imposing consecutive sentences, the trial court must first find the sentence is “necessary

to protect the public from future crime or to punish the offender.” Second, the trial court

must find that consecutive sentences are “not disproportionate to the seriousness of the

offender’s conduct and to the danger the offender poses to the public.” Finally, the trial

court must find that one of the following factors applies:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction imposed
       pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
       was under post-release control for a prior offense.
       (b) At least two of the multiple offenses were committed as part of one or
       more courses of conduct, and the harm caused by two or more of the
       multiple offenses so committed was so great or unusual that no single
       prison term for any of the offenses committed as part of any of the courses
       of conduct adequately reflects the seriousness of the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary to protect the public from future crime
       by the offender.

R.C. 2929.14(C).

       {¶13} Therefore, in accordance with H.B. 86, a trial court must make specific

findings before imposing consecutive sentences.        The pronouncements of Foster, as

previously outlined, no longer apply.

       {¶14} In response to Miller’s motion for resentencing, the trial court held a hearing

on July 26, 2012. At the conclusion of the hearing, the trial court denied Miller’s

motion, finding that Miller’s sentence that was imposed on October 26, 2004 was valid.

The trial court determined that H.B. 86 requires the court to make findings and Miller’s

sentence in 2004 did, in fact, include such findings, stating as follows:

       House Bill 86 now mandates that the court make findings of fact and
       conclusions — or findings, specific findings as to maximum consecutive
       sentences. And Foster is no longer in effect for those purposes. So we’re
       back to where [the trial court] was in * * * 2004, when [it] made the
       specific findings on the record.

       Due to the fact that the Ohio Supreme Court specifically tells this Court to
       sentence the defendant in accordance with Foster, I am not inclined to find
       the motion to resentence well taken based on the fact that the new
       sentencing purposes and principles are in effect at this point in time under
       House Bill 86. That those purposes and principles require the Court to
       make findings. That in effect the Court has already made findings when
       the defendant was resentenced * * * in 2004, and those findings stated
       * * * in 2004 were affirmed by the Court of Appeals in [State v. Miller, 8th
      Dist. No. 85564, 2005-Ohio-4583] and the sentence was * * * found to be a
      valid sentence.

      {¶15} In light of the above, we find the trial court properly denied Miller’s motion

for resentencing. The trial court sentenced Miller in 2004, making the requisite statutory

findings with respect to consecutive sentences, and his sentence was upheld on appeal to

this court in 2005. Therefore, in accordance with H.B. 86 and the current sentencing

law, Miller’s 2004 sentence is valid and should be upheld, because no due process

violation has occurred. A new sentencing hearing would serve no further purpose and

would afford defendant no greater protection under the existing law.

      {¶16} Accordingly, Miller’s first and second assignments of error are overruled.

                                 II. Delay in Hearing

      {¶17} Miller contends that the delay between the Supreme Court’s decision in

2006, to remand for a post-Foster resentencing, and the hearing held on July 26, 2012,

constituted unreasonable delay. Miller’s argument is without merit.

      {¶18} With respect to the imposition of a sentence, Crim.R. 32(A) states that the

“sentence shall be imposed without unnecessary delay.”         However, this court has

repeatedly held that the requirement that a sentence be imposed “without unnecessary

delay” does not apply to resentencing.         State v. Harris, 8th Dist. No. 96887,

2011-Ohio-6762, ¶ 12; State v. Wright, 8th Dist. No. 95096, 2011-Ohio-733, ¶ 8; State v.

McQueen, 8th Dist. No. 91370, 2009-Ohio-1085, ¶ 4. In this case, because Miller is not

alleging unnecessary delay between his conviction on January 30, 2002, and his original

sentence on February 12, 2002, Crim.R. 32(A) is not applicable.
       {¶19} Furthermore, neither the courts nor Miller sat idle during the time between

the Supreme Court’s remand in 2006 and the 2012 hearing by the trial court. During

such time, Miller filed the following: a motion for new trial, which was denied by the

trial court in May 2007; a request for findings of fact and conclusions of law, which was

denied by the trial court in June 2007; an appeal of the court’s denial of a new trial, which

we affirmed in June 2008; and an appeal to the Supreme Court, which declined

jurisdiction in November 2008. Miller then filed his motion for resentencing (the subject

of this appeal) on February 11, 2011. Thereafter, the court attempted to schedule a

hearing in April 2012, and it ordered an abbreviated PSI and an institutional summary that

same month.

       {¶20} Miller, as demonstrated above, has made several attempts throughout the

years to obtain relief from his conviction. Many of his motions and appeals overlapped.

Either this court of appeals or the Supreme Court was reviewing Miller’s conviction

and/or sentence and addressing his numerous motions and appeals over the course of the

last several years. Moreover, during the hearing of July 26, 2012, the trial court found

that Miller was not prejudiced “in any manner for the delay” between the Supreme

Court’s remand and the hearing on his motion for resentencing.

       {¶21} In light of the above, Miller’s third assignment of error is overruled.

       {¶22} Judgement affirmed.

       It is ordered that appellee recover of appellant 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. 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.



______________________________________________
TIM McCORMACK, JUDGE

LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
