Opinion
Court of Appeals No. WD-10-008 Trial Court No. 2008CR0529
02-06-2013
State of Ohio Appellee v. Cory Mendoza aka Waltz Appellant
Christopher F. Cowan, for appellant
DECISION AND JUDGMENT
Christopher F. Cowan, for appellant
OSOWIK , J.
{¶ 1} This matter is before the court on appellant's application to reconsider pursuant to App.R. 26(A). Appellant asks this court to clarify our December 14, 2012 decision in which we remanded this matter for the trial court to merge appellant's sentence for OVI with his sentences for the allied offenses of aggravated vehicular homicide and aggravated vehicular assault.
{¶ 2} As stated in Matthews v. Matthews, 5 Ohio App.3d 140, 450 N.E.2d 278 (10th Dist. 1981), paragraph two of the syllabus, "The test generally applied upon the filing of a motion for reconsideration in the court of appeals is whether the motion calls to the attention of the court an obvious error in its decision or raises an issue for consideration that was either not considered at all or was not fully considered by the court when it should have been."
{¶ 3} Appellant asserts that this court failed to instruct the trial court on remand that he is entitled to a de novo resentencing proceeding pursuant to the decision of the Ohio Supreme Court in State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381. In Wilson, the court held that when a cause is remanded to a trial court to correct an allied-offenses sentencing error, the trial court must hold a new sentencing hearing for the offenses that remain after the state selects which allied offense or offenses to pursue.
{¶ 4} Upon review, this court finds appellant's application for reconsideration well-taken.
{¶ 5} Based on the foregoing and this court's December 14, 2012 decision, this court vacates appellant's sentences for OVI, aggravated homicide and aggravated vehicular assault. Accordingly, this matter is remanded to the trial court to hold a new de novo sentencing hearing for the offenses that remain after the state selects which allied offenses to pursue. In all other matters, the judgment of the trial court remains affirmed.
Application granted.
Peter M. Handwork, J.
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
CONCUR.
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