[Cite as State v. Harris,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 10-CA-49 JASON HARRIS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas Case No. 2006-CR-651H

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: March 29, 2011

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JAMES J. MAYER, JR. RANDALL E. FRY 0011432 38 South Park Street 10 West Newlon Place Mansfield, Ohio 44902 Mansfield, Ohio 44902

KIRSTIN PSCHOLKA-GARTNER 0077792 Assistant Prosecuting Attorney (Counsel of Record) [Cite as State v. Harris,

.]

Delaney, J.

{¶1} Defendant-Appellant Jason Harris appeals the March 26, 2010

resentencing entry of the Richland County Court of Common Pleas, convicting him of

felonious assault with a three-year firearm specification, one count of domestic violence,

and one count of having a weapon while under a disability. The trial court resentenced

Appellant pursuant to State v. Baker,

,

, due to the

omission of the manner of conviction in Appellant’s original 2007 sentencing entry.

{¶2} The facts underlying Appellant’s present appeal were elicited in his direct

appeal in State v. Harris, 5th Dist. No. 2007-CA-0059,

. We adopt

those facts for purposes of this appeal.

{¶3} Appellant filed a direct appeal of his 2007 conviction to the Fifth District

Court of Appeals in case number 2007-CA-0059. In that proceeding, he raised five

assignments of error, including claims of ineffective assistance of counsel and denial of

his statutory right to a speedy trial. In an opinion dated June 2, 2008, this Court

affirmed the Appellant’s convictions, finding all five assignments of error to be without

merit.

{¶4} Appellant then appealed to the Supreme Court of Ohio, who declined to

accept jurisdiction of his case on October 29, 2008.

{¶5} Following the denial of his direct appeal, Appellant filed a post-conviction

Motion for Reconsideration of Sentence in the trial court on August 10, 2009. That

motion was overruled on August 20, 2009. Thereafter, Appellant filed an appeal with

this Court in case number 09-CA-115. The appeal was dismissed on Appellant’s own

motion on November 25, 2009. Appellant then filed a motion for resentencing in the trial Richland County, Case No. 10-CA-49 3

court, claiming that his entry was not a final appealable order because it did not comply

with the requirements of State v. Baker (2008),

,

.

Pursuant to that motion, Appellant was resentenced on March 26, 2010.

{¶6} Appellant now appeals to this court for the third time from his original

convictions; however, he has not limited his claims to his resentencing. He argues that

since his original sentencing entry was not a “final appealable order” his first direct

appeal was invalid. Accordingly, he now argues that he is entitled to appeal all errors

which arose from his trial.

{¶7} Appellant raises nine Assignments of Error:

{¶8} “I. THE TRIAL COUNSEL FOR THE DEFENDANT-APPELLANT

COMMITTED INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT OBJECTING TO

THE RE-SENTENCING HEARING.

{¶9} “II. THE TRIAL COURT ERRED PREJUDICIALLY BY FAILING TO

DISCHARGE THE DEFENDANT-APPELLANT PURSUANT TO O.R.C. 2945.73 AFTER

NOT BRINGING THE DEFENDANT-APPELLANT TO PRELIMINARY HEARING

WITHIN TEN DAYS AFTER HIS ARREST.

{¶10} “III. THE DEFENDANT-APPELLANT’S TRIAL COUNSEL COMMITTED

INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO FILE FOR A

DISCHARGE PURSUINT [SIC] TO O.R.C. 2945.73 AND FOR THE COURT

VIOLATING O.R.C. 2921.52(A)(4)(C), AND VIOLATING O.R.C.2921.45.

{¶11} “IV. THE TRIAL COURT ERRED BY GRANTING ATTORNEY BERNARD

DAVIS’ MOTION OF CONTINUANCE FILED ON SEPTEMBER 28, 2006. Richland County, Case No. 10-CA-49 4

{¶12} “V. THE TRIAL COUNSEL COMMITTED INEFFECTIVE ASSISTANCE

OF COUNSEL FOR FILING THE MOTION OF CONTINUANCE OF SEPTEMBER 28,

2006.

{¶13} “VI. THE TRIAL COURT ERRED IN NOT DISMISSING THE CASE

AGAINST THE DEFENDANT-APPELLANT FOR VIOLATION OF TIME LIMITS

STATED IN O.R.C. 2945.71.

{¶14} “VII. TRIAL COUNSEL FOR THE DEFENDANT-APPELLANT

COMMITTED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO ARGUE

THAT THE CONTINUANCE FILED ON SEPTEMBER 28, 2006, WAS INSUFFICIENT

TO TOLL THE SPEEDY TRIAL TIME AS DESIGNATED IN O.R.C. 2545.71[SIC] AND

MUST BE CHARGED TO THE PLAINTIFF-APPELLEE.

{¶15} “VIII. THE TRIAL COURT ERRED IN ISSUEING [SIC] A WARRANT FOR

THE DEFENDANT-APPELLANT’S ARREST ON NOVEMBER 28, 2006.

{¶16} “IX. THE TRIAL COURT ERRED IN NOT DISMISSING THE CASE AS

THE DEFENDANT-APPELLANT’S SPEEDY TRIAL RIGHTS WERE VIOLATED AS

ENUMERATED IN O.R.C. 2945.71 AND THEREFORE, PURSUANT TO O.R.C.

2945.73 THE DEFENDANT-APPELLANT SHOULD HAVE BEEN DISCHARGED.”

I - IX

{¶17} Appellant seeks to relitigate multiple claims from his original conviction in

2007. He was given the opportunity of a direct appeal at that time, and also was able to

file a post-conviction petition and litigate additional substantive claims.

{¶18} Subsequent to the Ohio Supreme Court’s decision in State v. Baker

(2008),

,

, Appellant requested to be resentenced Richland County, Case No. 10-CA-49 5

because the judgment entry did not contain the manner of conviction, i.e., that Appellant

had been convicted by a jury. Appellant was then resentenced on March 26, 2010, to

include the language that he was convicted by a jury and now appeals from that

resentencing; however, he does not limit his arguments to the resentencing with respect

to the conviction by a jury. Instead he seeks to relitigate prior substantive claims as well

as raise new claims. We do not find this to be the intent of the Supreme Court in Baker.

{¶19} In State v. Griffin, 5th Dist. No. 09-CA-21,

, Judge

Hoffman, in his dissent, stated as follows:

{¶20} “There is a distinction to be made between the finality of judgments for the

purpose of appeal and the type of finality that is required to preclude further litigation on

the issue between the parties”. Michaels Bldg. Co. v. City of Akron (Nov. 25, 1987),

Summit App. No. 13061.

{¶21} “Because Appellant herein previously invoked appellate review and

nothing in the order as it then existed prohibited or affected her ability to address all

issues relating to her previous conviction, Appellant should be judicially estopped from

now asserting our previous appellate court ruling is not entitled to law of the case status.

To hold otherwise violates the invited error doctrine and allows Appellant the proverbial

“second bite at the apple.””

{¶22} Since the decisions in Baker and in Griffin, the Supreme Court has

decided the case of State v. Fischer (2010), -- N.E.2d --,

{¶23} In Fischer, in 2002, a judge sentenced Fischer to an aggregate term of 14

years' imprisonment for aggravated robbery, felonious assault, having a weapon while

under disability, and two counts of aggravated burglary, all with firearms specifications. Richland County, Case No. 10-CA-49 6

A timely direct appeal followed, and his convictions were affirmed by the court of

appeals. State v. Fischer, 9th Dist. No. 20988,

, (rejecting sufficiency-of-

the-evidence claims and Batson challenges).

{¶24} Several years later, Fischer successfully moved pro se for resentencing

after the Supreme Court issued its decision in State v. Bezak,

, 2007-

Ohio-3250,

(holding that a sentence that omits a statutorily mandated

postrelease term is void) because he had not been properly advised of his postrelease-

control obligations. Thereafter, the trial court properly notified Fischer of those

obligations and reimposed the remainder of the sentence. Fischer appealed.

{¶25} On appeal, Fischer asserted that because his original sentence was void,

his first direct appeal was “not valid” and that this appeal is in fact “his first direct appeal”

in which he may raise any and all issues relating to his conviction. State v. Fischer,

,

,

, ¶ 4 and 5. The court of appeals

rejected his claim, holding that the appeal was precluded by the law-of-the-case

doctrine. Id. at ¶ 7-8.

{¶26} The Ohio Supreme Court granted discretionary review of a single

proposition arising from the appeal: whether a direct appeal from a resentencing

ordered pursuant to State v. Bezak was a first appeal as of right. State v. Fischer,

,

,

. They held that it is not.

{¶27} Similarly, we do not find that Appellant’s resentencing in the present case

allows him the opportunity to reopen his direct appeal for a second bite of the apple.

{¶28} As the Fischer Court noted, “A motion to correct an illegal sentence

‘presupposes a valid conviction and may not, therefore, be used to challenge alleged Richland County, Case No. 10-CA-49 7

errors in proceedings that occur prior to the imposition of sentence.’ ” Edwards v. State

(1996),

,

, quoting Allen v. United States (D.C. 1985),

. It is, however, an appropriate vehicle for raising the claim that a

sentence is facially illegal at any time.

The scope of relief based on a rule, like

Fed.R.Crim.P. 35, is likewise constrained to the narrow function of correcting only the

illegal sentence. It does not permit reexamination of all perceived errors at trial or in

other proceedings prior to sentencing. See, e.g., Hill v. United States (1962),

,

,

.” Id. at ¶25.

{¶29} Similarly, because a judge failed to indicate the mandated manner of

conviction as part of a defendant's sentence in 2007, that part of the sentence is void

and must be set aside. Neither the Constitution nor common sense commands

anything more.

{¶30} However, we hold that the new sentencing hearing to which an offender is

entitled is limited to including the proper manner of conviction, which legitimately could

be corrected by a nunc pro tunc entry as it could be considered a clerical error.

Appellant, having already had the benefit of one direct appeal, could not raise any and

all claims of error in a second, successive appeal. Fischer, supra, at ¶ 33, citing

,

,

. In Fischer, the Supreme Court

pointed out that the court of appeals based its decision on the law-of-the-case doctrine,

which provides that “the decision of a reviewing court in a case remains the law of that

case on the legal questions involved for all subsequent proceedings in the case at both

the trial and reviewing levels.” Nolan v. Nolan (1984),

,

. Richland County, Case No. 10-CA-49 8

{¶31} Nothing in

discusses void or voidable sentences. Rather,

the syllabus speaks only to the requirement that the judgment of conviction set forth “the

sentence” in addition to the other necessary aspects of the judgment. The fact that the

sentence was illegal does not deprive the appellate court of jurisdiction to consider and

correct the error. In fact, R.C. 2953.08(G)(2)(b) expressly authorizes a reviewing court

to modify or vacate any sentence that is “contrary to law.” Clearly, no such authority

could exist if an unlawful sentence rendered a judgment nonfinal and unappealable.

{¶32} Accordingly, we decline to address the merits of Appellant’s assignments

of error as they do not raise issues related to the narrow function of including the

manner of conviction.

{¶33} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Delaney, J.

Gwin, P.J. and

Farmer, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. SHEILA G. FARMER Richland County, Case No. 10-CA-49 9

Farmer, J., dissents

{¶34} I respectfully dissent from the majority's view that appellant's resentencing

pursuant to Baker does not allow him the opportunity to reopen his direct appeal for a

"second bite of the apple."

{¶35} In support of its position, the majority analyzes the Supreme Court of

Ohio's decision in State v. Fischer,

,

. Fischer

involved the failure to properly sentence on postrelease control. The Fischer court, at

paragraphs three and four of the syllabus, held the scope of an appeal from a

resentencing hearing is limited to issues arising during the resentencing hearing:

{¶36} "Although the doctrine of res judicata does not preclude review of a void

sentence, res judicata still applies to other aspects of the merits of a conviction,

including the determination of guilt and the lawful elements of the ensuing sentence.

{¶37} "The scope of an appeal from a resentencing hearing in which a

mandatory term of postrelease control is imposed is limited to issues arising at the

resentencing hearing."

{¶38} On the issue of res judicata and postrelease control resentences, the

Fischer court explained the following at ¶30-31:

{¶39} "Correcting the defect without remanding for resentencing can provide an

equitable, economical, and efficient remedy for a void sentence. Here, we adopt that

remedy in one narrow area: in cases in which a trial judge does not impose postrelease

control in accordance with statutorily mandated terms. In such a case, the sentence is

void. Principles of res judicata, including the doctrine of the law of the case, do not Richland County, Case No. 10-CA-49 10

preclude appellate review. The sentence may be reviewed at any time, on direct appeal

or by collateral attack.

{¶40} "Our decision today is limited to a discrete vein of cases: those in which a

court does not properly impose a statutorily mandated period of postrelease control. In

cases involving postrelease control, we will continue to adhere to our narrow, discrete

line of cases addressing the unique problems that have arisen in the application of that

law and the underlying statute. In light of the General Assembly's enactment of R.C.

2929.191, it is likely that our work in this regard is drawing to a close, at least for

purposes of void sentences. Even if that is not the case, however, we would be ill-

served by the approach advocated by the dissent, which is premised on an unpalatable

and unpersuasive foundation."

{¶41} Following the Fischer case, the Supreme Court of Ohio issued a decision

in State ex rel. DeWine v. Burge, ___ Ohio St.3d ___,

. In this case,

Justice Lanzinger, in a concurring opinion at ¶24, discussed whether new appellate

rights emerge from a Baker violation:

{¶42} "I concur in the court's opinion, but write separately to note that our

decision today leaves open the question whether new appellate rights arise from a new

sentencing entry issued in order to comply with Crim.R. 32(C).FN2 We have held that a

sentencing entry that violates Crim.R. 32(C) renders that entry nonappealable. State ex

rel. Culgan v. Medina Cty. Court of Common Pleas,

, 2008-Ohio-

4609,

. In light of the facts of the present case, we eventually will

need to determine what effect an appellate decision has when the appellate court's Richland County, Case No. 10-CA-49 11

jurisdiction was premised upon a sentencing entry that violated Crim.R. 32(C) and was

thus nonappealable.

{¶43} "FN2. The state has raised this issue in its second proposition of law in

State v. Allen, case No. 2010-1342,

,

,

, and State v. Smith, case No. 2010-1345,

,

,

, both of which we accepted for review and held for our decision in the

case. The issue is also pending in State v. Lester, which we agreed to review on order

of a certified conflict and on a discretionary appeal, case Nos. 2010-1007,

,

,

and 2010-1372,

,

,

."1

{¶44} I therefore conclude there has been no guidance provided to the appellate

courts on the applicability of res judicata to a non-final order pursuant to Baker. Based

upon the case law as it stands today, I would find there was no final appealable order

until the March 26, 2010 judgment entry on resentencing, and appellant is entitled to a

review of his assignments of error.

________________________________ HON. SHEILA G. FARMER

1 I note as of March 23, 2011, the Allen and Smith cases are still stayed, and Lester is currently set for oral argument on April 6, 2011. [Cite as State v. Harris,

.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : JASON HARRIS : : Defendant-Appellant : Case No. 10-CA-49 :

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed

to Appellant.

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. SHEILA G. FARMER