[Cite as State v. Robinson,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 25795

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE GLENN DARNELL ROBINSON COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 03 01 0003

DECISION AND JOURNAL ENTRY

Dated: November 23, 2011

CARR, Presiding Judge.

{¶1} Appellant, Glenn Robinson, appeals from his conviction in the Summit County

Court of Common Pleas. This Court affirms, in part, and vacates, in part.

I.

{¶2} On January 9, 2003, the Summit County Grand Jury indicted Robinson on two

counts of aggravated murder, one count of murder, one count of aggravated robbery, one count

of having weapons while under disability, two counts of carrying concealed weapons, and one

count of felonious assault. Each of the aggravated murder, murder, aggravated robbery, and

having weapons while under disability counts carried firearm specifications. At his arraignment,

Robinson pleaded not guilty to all of the charges in the indictment. Robinson filed a motion for

relief from prejudicial joinder on the basis that the felonious assault charge arose out of an

incident occurring on June 22, 2002, while the remaining charges stemmed from events

occurring on December 30, 2002. The trial court subsequently issued a journal entry which 2

severed the felonious assault charge from the remainder of the charges in the indictment and the

matter proceeded to trial on the remaining charges.

{¶3} On April 14, 2003, a jury returned a verdict which found Robinson guilty of two

counts of aggravated murder, one count of murder, one count of aggravated robbery, one count

of having weapons while under disability, one count of carrying concealed weapons, and the

relevant firearm specifications. The jury returned a verdict of not guilty on one count of carrying

concealed weapons. At the subsequent sentencing hearing, Robinson retracted his not guilty plea

to the felonious assault charge and entered a plea of guilty. The trial court then sentenced

Robinson for the other convictions which the State had obtained at trial.

{¶4} Several weeks later at the sentencing hearing on the felonious assault charge, but

before he was actually sentenced, Robinson orally moved the trial court to withdraw his guilty

plea. The trial court denied the motion and proceeded to sentence Robinson on the felonious

assault charge.

{¶5} On May 27, 2003, Robinson filed a notice of appeal and raised two assignments

of error. On March 3, 2004, this Court held that Robinson’s conviction for aggravated robbery

was supported by sufficient evidence and was not against the manifest weight of the evidence.

This Court further held that the trial court’s denial of Robinson’s motion to withdraw his guilty

plea to the charge of felonious assault was an abuse of discretion. State v. Robinson, 9th Dist.

No. 21583,

. Robinson subsequently appeared in the trial court for a plea hearing

and again retracted his plea of not guilty to the charge of felonious assault and entered a plea of

guilty. The trial court’s sentencing entry was journalized on March 30, 2004.

{¶6} On July 23, 2010, Robinson filed a “motion for sentencing” in the trial court in

which he argued that his original sentence was void due to an error in the imposition of post- 3

release control. The State responded that the sentence was void and that Robinson had to be

resentenced de novo. On August 9, 2010, Robinson filed a second motion in which he argued

that the trial court did not have jurisdiction to sentence him because there had been unreasonable

delay between the time he was found guilty and the time he was sentenced. On September 9,

2010, the trial court issued a journal entry stating that “the sentencing entry in this matter does

not adequately inform the Defendant of Post Release Control Requirements.” The trial court

then directed the sheriff to return Robinson to the courthouse for resentencing. Robinson

subsequently appeared for a resentencing hearing on October 7, 2010. On October 13, 2010, the

trial court issued a journal entry noting that the State had conceded that Robinson had served the

entirety of his prison sentence for felonious assault. On October 20, 2010, the trial court issued

its sentencing entry in which it gave Robinson the same prison sentence with respect to his other

convictions and noted that he was subject to a mandatory five-year term of post-release control

upon his release from prison. The trial court also formally denied Robinson’s motion to dismiss

for unreasonable delay and noted that it could not resentence Robinson on the count of felonious

assault because he had already served his prison sentence.

{¶7} Robinson filed a notice of appeal on November 19, 2010. This Court dismissed

Robinson’s appeal by journal entry on December 9, 2010, due to the fact that the October 20,

2010 journal entry failed to contain a finding of guilt on the firearm specification relating to the

count of having weapons while under disability. Subsequently, on January 4, 2011, the trial

court issued a nunc pro tunc journal entry in which it corrected the omission of the firearm

specification in the October 20, 2010 entry.

{¶8} Robinson filed a notice of appeal on January 31, 2011. On appeal, Robinson

raises four assignments of error. 4

II.

ASSIGNMENT OF ERROR I

“THE TRIAL [COURT] ERRED WHEN IT IMPROPERLY SENTENCED DEFENDANT ON ALLIED OFFENSES.”

ASSIGNMENT OF ERROR II

“THE TRIAL COURT ERRED BY IMPOSING SENTENCES FOR FIVE FIREARM SPECIFICATIONS WHEN ALL FIVE AROSE FROM THE SAME ‘ACT OR [TRANSACTION]’”

ASSIGNMENT OF ERROR III

“THE TRIAL [COURT] ERRED WHEN IT RULED THAT THERE HAD NOT BEEN AN UNREASONABLE AND UNEXPLAINED DELAY IN SENTENCING BECAUSE CRIM.R. 32(C) HAD NOT BEEN VIOLATED.”

ASSIGNMENT OF ERROR IV

“THE TRIAL COURT ERRED BY SENTENCING GLENN ROBINSON TO MAXIMUM, CONSECUTIVE PRISON TERMS BASED ON FACTS NOT FOUND BY THE JURY OR ADMITTED BY GLENN ROBINSON.”

{¶9} Robinson raises four assignments of error which relate to his sentence. In his

third assignment of error, Robinson argues that the trial court was without authority to impose a

sentence due to unreasonable delay. In his first, second, and fourth assignments of error,

Robinson raises substantive challenges to his sentence.

{¶10} The Supreme Court of Ohio has held that an error in post-release control

notification does not result in a void sentence. State v. Fischer,

, 2010-Ohio-

6238. In Fischer, the Supreme Court held that “when a judge fails to impose statutorily

mandated postrelease control as part of a defendant’s sentence, that part of the sentence is void

and must be set aside.” Id. at ¶26. The Court reasoned that “[n]either the Constitution nor

common sense commands anything more.” Id. The new sentencing hearing that a defendant is

entitled to “is limited to proper imposition of postrelease control.” Id. at ¶29. The Court also 5

held that res judicata “applies to other aspects of the merits of a conviction, including the

determination of guilt and the lawful elements of the ensuing sentence.” Id. at paragraph three of

the syllabus.

{¶11} Moreover, Crim.R. 32(A) states that a sentence “shall be imposed without

unnecessary delay.” The Supreme Court of Ohio has recognized that delay for a reasonable time

does not invalidate a sentence. Neal v. Maxwell (1963),

, 202. This Court has

held that Crim.R. 32(A) does not apply in cases where an offender must be re-sentenced. State v.

Spears, 9th Dist. No. 24953,

, at ¶19, citing State v. Huber, 8th Dist. No. 85082,

. See, also, State v. Culgan, 9th Dist. No. 09CA0060-M,

, at

¶36-37; State v. Jones, 9th Dist. No. 25032,

, at ¶9-10; State v. Banks, 9th Dist.

No. 25279,

, at ¶42-43. “This logic, as it relates to Crim.R. 32(A), recognizes

the distinction between a trial court refusing to sentence an offender and a trial court improperly

sentencing an offender.” Spears at ¶19. Furthermore, the Supreme Court of Ohio has held that a

trial court retains continuing jurisdiction to correct a void sentence. State ex rel. Cruzado v.

Zaleski,

,

, at ¶19, citing State v. Beasley (1984),

.

{¶12} This is not a case where the trial court refused to impose a sentence on the

offender. Rather, Robinson was timely sentenced after he was found guilty in 2003. Robinson

appealed his convictions to this Court and raised two assignments of error. This Court reversed

Robinson’s felonious assault conviction and his other convictions were affirmed. Robinson,

supra. Robinson subsequently entered a guilty plea to the felonious assault charge and was

sentenced in March 2004. More than six years later, on July 23, 2010, Robinson filed a motion

in the trial court in which he argued that his original sentence was void due to an error in the 6

imposition of post-release control. The trial court set the matter for resentencing due to the post-

release control error. The trial court subsequently conducted a resentencing hearing on October

7, 2010, and issued a new sentencing entry. In accordance with Fischer, the scope of the new

sentencing hearing to which Robinson was entitled was limited to the proper imposition of post-

release control. Fischer, at paragraph two of the syllabus. Likewise, the scope of Robinson’s

appeal from that hearing is limited solely to issues relating to the imposition of post-release

control. Id. at paragraph four of the syllabus. It follows that the trial court had authority to

impose the proper term of post-release control on Robinson at the October 7, 2010 hearing. As

the lawful portion of Robinson’s original sentence remained in place pursuant to Fischer, the

trial court did not have authority to conduct a de novo sentencing hearing and reissue a sentence.

Furthermore, as Robinson’s original sentence remained in place, Robinson cannot prevail on his

argument that there was unreasonable delay in imposing a sentence. To the extent the trial court

properly imposed a mandatory five-year period of post-release control upon Robinson at the

resentencing hearing, its judgment is affirmed. To the extent the trial court conducted a de novo

sentencing hearing and reissued a sentence to Robinson, its judgment in that respect is vacated.

III.

{¶13} The judgment of the Summit County Court of Common Pleas is vacated to the

extent the court exceeded its authority and resentenced Robinson. The trial court’s decision to

notify Robinson that he is subject to a mandatory five-year term of post-release control is

affirmed. The remainder of Robinson’s original sentence remains in place.

Judgment affirmed, in part, and vacated in part. 7

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

MOORE, J. DICKINSON, J. CONCUR

APPEARANCES:

GLENN D. ROBINSON, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.