[Cite as State v. Davis,
2019-Ohio-2115.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107645
v. :
MICHAEL MARBUERY DAVIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 30, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-14-582057-B, CR-14-586437-A, CR-14-586870-A, CR-14-587857-B,
CR-14-590819-B and CR-15-596537-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant
Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Craig M.
Jaquith, Assistant State Public Defender, for appellant.
MARY EILEEN KILBANE, A.J.:
Defendant-appellant, Michael Marbuery Davis (“Marbuery Davis”)
appeals from his resentencing following our limited remand in State v. Davis, 8th
Dist. Cuyahoga No. 104574, 2018-Ohio-1147 (“Marbuery Davis I”). For the reasons
set forth below, we affirm.
The facts underlying this appeal were previously set forth in
Marbuery Davis’s prior appeal, Marbuery Davis I, and we incorporate them as if
fully rewritten herein.
In Marbuery Davis I, Marbuery Davis argued the trial court’s failure
to impose the mandatory driver’s license suspension under former R.C. 2925.03
rendered his sentence contrary to law. Finding merit to this argument, we stated:
the trial court was required to impose a suspension of Marbuery Davis’s
driver’s license for at least six months, but not more than five years. The
trial court’s failure to impose this mandatory term renders Marbuery
Davis’s sentence void in part[.]
Id. at ¶ 63.
As a result, we affirmed his numerous convictions, and based on the authority in
State v. Harris, 132 Ohio St. 3d 318,
2012-Ohio-1908,
972 N.E.2d 509, we remanded
the matter for resentencing limited to the imposition of the mandatory driver’s
license suspension. Id. at ¶ 71. Marbuery Davis did not seek reconsideration of this
decision, nor did he appeal to the Ohio Supreme Court.
Following our remand, the trial court held a resentencing hearing. At
the hearing, defense counsel argued that the entire sentence should be considered
void and Marbuery Davis was entitled to a de novo resentencing. The trial court
declined to conduct a de novo resentencing and limited the hearing to correct the
imposition of the driver’s license suspension. The court reasoned,
Everything else about all of these cases remains decided by the Court
of Appeals. And I’ve not let you address any issues you could have or
were raised because those issues are resolved.
In addressing the driver’s license suspension, the court gave
Marbuery Davis the opportunity to express his thoughts. During this time,
Marbuery Davis admitted that the reason he challenged the trial court’s failure to
impose a mandatory driver’s license suspension was because he thought “[he] was
going to get a de novo re-sentencing.”
The trial court then proceeded to sentence Marbuery Davis on the
driver’s license suspension. The court noted that at the time of the resentencing, a
driver’s license suspension is no longer mandatory under the statute, and now was
discretionary. As a result, the court chose to not impose a driver’s license
suspension.
It is from this order that Marbuery Davis now appeals, raising the
following single assignment of error for review:
Assignment of Error
The trial court erred when it did not conduct a de novo resentencing
hearing.
In his sole assignment of error, Marbuery Davis claims the trial court
erred when it conducted a limited resentencing hearing under Harris because the
license suspension was not mandatory at the time of the resentencing and, as a
result, his case was no longer controlled by Harris on remand.
Marbuery Davis argues that at the time the resentencing hearing was
held in August 2018, a mandatory driver’s license suspension was no longer required
under R.C. 2925.03(D). Marbuery Davis was originally sentenced in May 2016 and
the change to a discretionary license suspension went into effect in September 2016.
Based on this change in the law, Marbuery Davis contends he is entitled to a de novo
resentencing hearing.
Marbuery Davis attempts to distinguish Harris from the instant case
by noting that Harris involved a mandatory, rather than a discretionary, imposition
of a driver’s license suspension. This distinction is unpersuasive because at the time
Marbuery Davis was originally sentenced, the law required a mandatory driver’s
license suspension. Had the change in R.C. 2925.03(D) been in effect at the time of
Marbuery Davis’s initial sentencing, there would have been no error in the court’s
sentence and no basis for a remand. The fact that the General Assembly chose to
make driver’s license suspensions under this section discretionary rather than
mandatory did not affect the prison sentences that were imposed by the trial court
and affirmed by this court in Marbuery Davis I. As a result, a de novo resentencing
was not necessary.
Moreover, Marbuery Davis’s reasoning misconstrues our mandate in
Marbuery Davis I. “An appellate mandate works in two ways: it vests the lower
court on remand with jurisdiction and it gives the lower court on remand the
authority to render judgment consistent with the appellate court’s judgment.” State
v. Carlisle, 8th Dist. Cuyahoga No. 93266, 2010-Ohio-3407, ¶ 16. Under the
“mandate rule” a lower court is required to ‘“carry the mandate of the upper court
into execution and not consider the questions which the mandate laid at rest.”’
Id.,
quoting Sprague v. Ticonic Natl. Bank,
307 U.S. 161, 168,
59 S.Ct. 777,
83 L.Ed. 1184
(1939); see also State ex rel. Cordray v. Marshall,
123 Ohio St.3d 229, 2009-Ohio-
4986,
915 N.E.2d 633, ¶ 32 (holding that “the Ohio Constitution does not grant to a
court of common pleas jurisdiction to review a prior mandate of a court of appeals.”).
In Marbuery Davis I, this court affirmed the prison sentences
imposed by the trial court and recognized that the only issue left unresolved was the
imposition of the driver’s license suspension. Subsequently, we explicitly remanded
the case back to the trial court “for resentencing limited to the imposition of the
mandatory driver’s license suspension.” Id. at ¶ 71. Notably, Marbuery Davis did
not seek reconsideration from this decision or appeal to the Ohio Supreme Court.
With Marbuery Davis’s prison sentences having been affirmed on appeal, the trial
court did not have authority to reconsider them. As a result, the trial court was
bound by the explicit mandate from this court and could not conduct a de novo
resentencing hearing.
Accordingly, the sole assignment of error is overruled.
Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue 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.
______
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
