State v. Jung
| Decision Date | 23 January 2020 |
| Docket Number | No. 108223,108223 |
| Citation | 2020 Ohio 186,151 N.E.3d 1030 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Matthew C. JUNG, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant-appellant, Matthew Jung, appeals from a trial court judgment ordering that his "original sentence remains imposed," which was an indefinite sentence of two to four years in prison. He raises one assignment of error for our review:
The trial court erred in failing to correct its unauthorized sentence and void indefinite sentence of imprisonment for a violation of R.C. 3734.03.
{¶ 2} Finding merit to his appeal, we reverse and remand with instructions for the trial court to resentence Jung to a definite sentence of "at least two years, but not more than four years."
{¶ 3} In September 2016, Jung entered into a plea deal involving multiple cases and charges. In the present case, he pleaded guilty to one count of open dumping in violation of R.C. 3734.03, an unclassified felony, for dumping 13 tires. The trial court sentenced him to one-and-a-half years of community control sanctions. The trial court advised Jung that if he violated the terms of his community control sanctions, it would impose the maximum prison sentence in each case, which the trial court stated was "four years" for open dumping. The trial court also notified Jung that if he violated, it would order that he serve the prison sentences in the multiple cases consecutively.
{¶ 4} Jung subsequently violated the terms of his community control sanctions. The trial court continued Jung's community control sanctions in each case. The trial court again warned Jung that if he violated, he would be facing serious consequences, including maximum prison time in each case, and that it would order him to serve the sentences consecutively. This time, however, the trial court also advised Jung that the maximum prison sentence he was facing for open dumping was an "indeterminate sentence" of two to four years.
{¶ 5} Jung violated the terms of his community control sanctions a second time. The trial court sentenced Jung to prison "for a term of 2 - 4 years," and ordered that it be served concurrent to Jung's sentences in the other cases. The trial court also imposed a discretionary three-year period of postrelease control.
{¶ 6} Jung appealed his sentences. See State v. Jung , 2018-Ohio-1514, 111 N.E.3d 54 (8th Dist.). With respect to his sentence for open dumping, Jung argued that the trial court failed to consider the overriding purposes of felony sentencing under R.C. 2929.11 when it sentenced him to the maximum prison sentence of two to four years. He also argued that the trial court erred when it imposed postrelease control for an unclassified felony. We affirmed his prison sentence for open dumping, but agreed with him that the portion of his sentence that included postrelease control for a violation of an unclassified felony was contrary to law. We therefore vacated that portion of his sentence.
{¶ 7} The trial court held a hearing on January 25, 2019, stating that the Ohio Department of Rehabilitation and Correction had notified it that Jung's sentence should be a definite sentence rather than an indefinite one. Defense counsel agreed, arguing that Jung's sentence should have been a definite sentence rather than an indefinite one. Defense counsel requested the court to resentence Jung and impose a definite sentence of "at least two years, but not more than four years."
{¶ 8} The state did not take a position on the merits of the issue at the hearing except to say that it was a matter of statutory interpretation that the court needed to decide.
{¶ 9} The trial court considered the fact that Jung had appealed his sentence and this court upheld it. The trial court stated that the court of appeals "remained silent as to that indefinite sentence" and concluded because of that, "the law of the case is that [Jung was] sentenced to an indefinite two-to-four-year sentence."
{¶ 10} The trial court issued a judgment, stating It is from this judgment that Jung now appeals.
{¶ 11} We must first address whether there is a final appealable order in this case because the trial court simply reimposed its original sentence. This court requested the parties to brief this issue before oral argument. Although there is a unique procedural posture in this case, both parties agree that the trial court's order is final and appealable, and so do we.
{¶ 12} Jung did not initiate the proceedings in this case; the Ohio Department of Rehabilitation and Correction did. Although Jung did not initiate the proceedings, he orally moved for the trial court to vacate his original sentence because it was not authorized under R.C. 3734.99. Thus, the trial court's judgment in this case is akin to a judgment denying a defendant's motion to vacate his or her sentence that is contrary to law. A sentence that is not "in accordance with statutorily mandated terms" is contrary to law and may be challenged at any time. State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 8, 39.
{¶ 13} We must first address the state's argument that because Jung could have raised this issue in his direct appeal, but did not, his arguments are barred by res judicata.
{¶ 14} Jung argues that his sentence is contrary to law because the trial court did not follow the mandates of R.C. 3734.99. The law is well settled. As the Ohio Supreme Court explained in Fischer nearly ten years ago:
Judges have no inherent power to create sentences. Griffin & Katz, Ohio Felony Sentencing Law (2008) 4, Section 1:3, fn. 1. See also Woods v. Telb[ (2000) ], 89 Ohio St.3d [504] at 507-509, 733 N.E.2d 1103 (). Rather, judges are duty-bound to apply sentencing laws as they are written. See State v. Thomas (1996), 111 Ohio App.3d 510, 512, 676 N.E.2d 903. Colegrove [v. Burns (1964) ], 175 Ohio St. [437]at 438, 25 O.O.2d 447, 195 N.E.2d 811 .
{¶ 15} The Ohio Supreme Court had further made it clear that res judicata does not bar a challenge to a sentence that does not comport with statutory sentencing mandates because such sentences are contrary to law and "may be reviewed at any time, on direct appeal or by collateral attack." Id. at ¶ 40. The Supreme Court explained that "[a]lthough the interests in finality of a sentence are important, they cannot trump the interests of justice, which require a judge follow the letter of the law in sentencing a defendant." Id. at ¶ 23. Therefore the state's res judicata argument is without merit.
{¶ 16} We further note that the trial court erred when it denied Jung's request to vacate his indefinite sentence and impose a definite one based on the law-of-the-case doctrine. This doctrine is rooted in the principles of res judicata and issue preclusion and does not apply to a sentence that does not comply with statutory sentencing mandates. Id. at ¶ 35.
{¶ 17} The penalties for violating open dumping under R.C. 3734.03 are set forth in R.C. 3734.99. Under R.C. 3734.99, an offender convicted of open dumping "is guilty of a felony and shall be fined at least ten thousand dollars, but not more than twenty-five thousand dollars, or imprisoned for at least two years, but not more than four years , or both." (Emphasis added.) The issue presented in this case is whether the language, "imprisoned for at least two years, but not more than four years," denotes a definite sentence between two and four years or an indefinite sentence of two to four years.
{¶ 18} Jung argues that State v. Quisenberry , 69 Ohio St.3d 556, 634 N.E.2d 1009 (1994), supports his position that his sentence under R.C. 3734.99 should have been a definite sentence. We agree.
{¶ 19} The defendant in Quisenberry had been convicted of failure to appear under R.C. 2937.29, which the Ohio Supreme Court explained was an unclassified felony — just as the offense in the present case. In Quisenberry , the Ohio Supreme Court analyzed whether R.C. 2937.99, which set forth the penalty for failure to appear, mandated an indefinite or definite sentence. At the time Quisenberry was decided, R.C. 2937.99 provided in relevant part that one convicted of failure to appear "be * * * imprisoned in the penitentiary not less than one nor more than five years[.]" The Supreme Court stated that the question presented was whether "the phrase ‘not less than one nor more than five years’ denotes a definite or indefinite term." Id. at 558, 634 N.E.2d 1009.
{¶ 20} The Ohio Supreme Court discussed how R.C. 2937.99 was first enacted in 1965 and had never been amended, not even as part of the 1973 overhaul of felony sentencing. Id. It stated, Id. The Supreme Court explained how the "rest of the Code," specifically former R.C. 2929.11, used "the words ‘minimum’ and ‘maximum’ in describing indefinite terms of incarceration." Id. For example, former R.C. 2929.11(A) stated:
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