[Cite as State v. Gregley,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97469

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DUANE GREGLEY DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-358368

BEFORE: E. Gallagher, J., Boyle, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: August 2, 2012 ATTORNEY FOR APPELLANT

Gregory Scott Robey Robey & Robey 14402 Granger Road Maple Heights, Ohio 44137

ALSO LISTED

Duane Gregley Inmate No. 358-808 Richland Correctional Institution 1001 Olivesburg Road Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Mary H. McGrath Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:

{¶1} Duane Gregley appeals from the trial court’s imposition of postrelease

control. Gregley argues the trial court erred in imposing postrelease control, in failing

to advise him of his appellate rights, in failing to conduct a de novo sentencing hearing,

that his counsel rendered ineffective assistance and that his conviction is not valid. For

the following reasons, we reverse the decision of the trial court.

{¶2} In the underlying case, in June 1998, a jury convicted Gregley of two

counts of aggravated murder with mass-murder specifications and a three-year firearm

specification, one count of attempted aggravated murder with a three-year firearm

specification, and one count of carrying a concealed weapon. The court found Gregley

guilty of having a weapon while under disability. When the jury deadlocked on the

sentencing recommendation the judge sentenced Gregley to concurrent terms of three

years on the firearm specifications, life imprisonment without parole for each of the

aggravated murder counts, nine years for the attempted murder charge and one year for

each of the weapons charges. The judge further ordered that the sentences for the

aggravated murder charges and the attempted murder charge were to be served

consecutively. The judge further added, “Sentence includes any extensions provided

by law.”

{¶3} Gregley appealed and this court affirmed his convictions. State v. Gregley, 8th Dist. No. 75032,

(Dec. 16, 1999); motion for delayed

appeal denied, State v. Gregley,

,

. Gregley also

filed an application to reopen this court’s judgment in State v. Gregley, 8th Dist. No.

75032, supra, pursuant to App.R. 26(B), which this court denied; State v. Gregley, 8th

Dist. No. 75032,

(Oct. 18, 2000).

{¶4} On December 18, 2009, Gregley filed a motion for sentencing and final

appealable order based on the trial court’s alleged failure to properly impose postrelease

control. Ten days later, the trial court denied this motion as follows: “Defendant’s

motion (pro se) for sentencing etc. is overruled. Defendant was sentenced to two

consecutive life terms without parole, and thus P.R.C. does not apply.” Gregley did not

appeal the ruling; instead, he commenced a procedendo action. In denying the writ, this

court determined that:

Gregley had notice of postrelease control issues when the trial judge added the language that “Sentence includes any extensions provided by law.” Additionally, Gregley explicitly raised the issue of postrelease control in his motion for resentencing, but chose not to appeal the denial of that motion. Furthermore, the issues of statutory interpretation, mootness, and futility as they relate to postrelease control are better resolved on appeal with a complete record, than through an extraordinary writ.

State ex rel. Duane Gregley v. Stuart Friedman, Judge, 8th Dist. No. 96255,

.

{¶5} Gregley appealed this court’s decision to the Ohio Supreme Court, which

dismissed Gregley’s action. State ex rel. Gregley v. Friedman,

,

,

. {¶6} On September 22, 2011, the trial court appointed Gregley counsel, ordered

him returned from the institution and scheduled a hearing to impose postrelease control.

On October 7, 2011, the trial court conducted a hearing and imposed five years of

mandatory postrelease control for attempted aggravated murder and three years

postrelease control for having a weapon while under disability. Gregley objected to the

proceedings and appealed, raising the six assignments of error contained in the appendix

to this opinion.

{¶7} In his first assignment of error, Gregley argues the trial court erred in

imposing postrelease control on the offenses of attempted aggravated murder, having a

weapon while under disability and carrying a concealed weapon because his sentences

for those crimes had expired. We agree.

{¶8} First, we note that while Gregley claims the court imposed a term of

postrelease control for the charge of carrying a concealed weapon, the transcript and the

court’s journal reveals that it did not. Thus, we will limit our analysis to the court’s

imposition of postrelease control for the charges of attempted aggravated murder and

having a weapon while under disability.

{¶9} With regard to defendant’s sentence, we note that in State v. Fischer,

,

,

, the Ohio Supreme Court held that

where postrelease control was erroneously imposed, resentencing is limited to proper

imposition of postrelease control. The defendant is not entitled to be resentenced on the

entire sentence — “only the portion that is void may be vacated and otherwise amended.”

However, where the defendant has completed his sentence, the trial

court may not hold a new sentencing hearing to remedy defectively imposed postrelease

control. State v. Simpkins,

,

,

.

The trial court’s authority to resentence an offender to give the required notice of

postrelease control is limited to situations where the offender’s sentence has not yet

expired. State v. Schmitt,

,

,

(3d

Dist.); State v. Watt,

,

,

(3d Dist.).

{¶10} In State v. Pesci, 8th Dist. No. 94904,

, this court

explained:

Because Pesci’s sentences had expired by the time he filed his motions to vacate, the trial court was without authority to resentence him. Once an offender has served the prison term ordered by the trial court, he or she cannot be subject to resentencing in order to correct the trial court’s failure to properly impose postrelease control.

{¶11} The Pesci court further held that the portion of the sentence that did not

pertain to postrelease control remained in effect and “only the void part of the sentence is

vacated, not the entire sentence.” See State v. Harris, 8th Dist. No. 95097,

(noting that if the defendant’s sentence has expired and he has been

released from custody, postrelease control cannot be imposed); State v. Hayden, 8th Dist.

No. 94955,

(resentencing to add postrelease control was affirmed where

the trial court held resentencing hearing solely on the issue of postrelease control and

hearing).

{¶12} In the present case, the State, in its brief to the Ohio Supreme Court in State ex rel. Gregley v.

conceded that Gregley’s prison terms for the

convictions of attempted aggravated murder and having a weapon while under disability

had expired prior to the court’s hearing on October 7, 2011. Therefore, we conclude

that the trial court was without the authority to impose postrelease control for those

crimes. Gregley has completed his sentences on the charges of attempted aggravated

murder and having a weapon while under disability and is not subject to postrelease

control.

{¶13} Gregley’s first assignment of error is sustained.

{¶14} Our analysis of Gregley’s first assignment of error renders his second,

third, fourth, and fifth assignments of error moot.

{¶15} In his sixth and final assignment of error, Gregley argues that the trial

court’s failure to initially impose postrelease control renders his convictions on all

charges invalid. We disagree.

{¶16} The Ohio Supreme Court in Fischer declared that “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.” Id. at ¶ 40.

{¶17} Throughout the lengthy procedural history of this case, Gregley has

appealed, or had the opportunity to appeal, the validity of his conviction and sentence.

As such, any arguments made during this latest appeal concerning the validity of his convictions are barred by res judicata.

{¶18} Gregley’s final assignment of error is overruled.

{¶19} The judgment of the trial court is reversed and remanded in order to

correct the record as to postrelease control by journal entry.

It is ordered that appellant recover of said appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

lower court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and SEAN C. GALLAGHER, J., CONCUR

Appendix

Assignments of Error:

I. “The trial court erred to the prejudice of Appellant in violation of the due process clause of the Fourteenth Amendment to the U.S. Constitution when it resentenced him for offenses where the sentences for those offenses had already been completed.

II. “The trial court erred to the prejudice of Appellant in violation of the due process clause of the Fourteenth Amendment to the U.S. Constitution when it issued a journal entry separate and apart from the sentencing entry and failed to properly incorporate postrelease control in a re-sentencing entry.

III. “Appellant was denied the right to effective assistance of counsel and due process in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution and Crim.R. 32(A) when counsel failed to ensure he understood his right to allocation in a manner reasonably intelligible to him, which led to the forfeiture of the right itself.

IV. “Appellant is denied counsel and due process in violation of the Sixth and Fourteenth Amendment to the U.S. Constitution when the trial court failed to inform him of his appellate rights pursuant to Crim. R. 32(B) during postrelease control re-sentencing — a critical stage of the criminal proceeding — and counsel is not appointed and re-sentencing transcript at state’s expense is not granted for the purpose of appeal where he is indigent.

V. “Appellant was denied due process and equal protection in violation of the Fourteenth Amendment to the U.S. Constitution and Article I, Sections 10 and 16 of the Ohio Constitution when the trial court failed to afford him a de novo sentencing hearing as required by case law established at the time of his motion for sentencing, but later retroactively applies State v. Fischer (2010),

. VI. “Appellant’s conviction is not valid because Ohio’s doctrine of res judicata presupposed a valid ‘final’ judgment, the doctrine cannot bar challenge to a conviction where the sentence was void, and thus, application thereof is contrary to U.S. Supreme precedent and denial of due process in violation of the Fourteenth Amendment to the U.S. Constitution.”