[Cite as State v. Vore,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2012-07-065

: OPINION - vs - 4/14/2014 :

WILLIAM B. VORE, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 10CR27091

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee

Neal D. Schuett, 121 West High Street, Oxford, Ohio 45056, for defendant-appellant

HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, William B. Vore, appeals from a Warren County Court of

Common Pleas decision resentencing him upon remand from this court to correct a

postrelease control sentencing error. For the reasons discussed below, we affirm.

{¶ 2} In December 2010, appellant was indicted for robbery in violation of R.C.

2911.02(A)(3), a felony of the third degree, and grand theft in violation of R.C. 2913.02(A)(1),

a felony of the fourth degree. The charges arose out of appellant's robbery of a Fifth Third Warren CA2012-07-065

Bank in Warren County, Ohio. Appellant had given a bank teller a handwritten note, which

said: "This is a Robbery Give me All your 100s, 50s, 20s, Fast, no dye packs or alarms [sic]."

He then asked the teller, "Do you got it?" Although the teller did not observe appellant

holding a weapon, the teller nonetheless felt scared and believed she would be harmed if she

did not comply. The teller handed over $9,200, and appellant fled the bank.

{¶ 3} Following a three-day jury trial, appellant was convicted of both offenses. The

grand theft charge was merged with the robbery conviction for sentencing purposes, and on

August 30, 2011, appellant was sentenced to five years in prison. Appellant timely appealed

to this court, arguing the trial court erred by failing to give a lesser-included offense jury

instruction for the robbery charge, by admitting improper "other acts" evidence, by overruling

his motion to suppress eyewitness identifications, and by denying his motion for funds to

obtain an eyewitness identification expert. State v. Vore, 12th Dist. Warren No. CA2011-08-

093,

. We found no merit to appellant's assigned errors and affirmed his

conviction. However, we noticed and raised, sua sponte, an error in the trial court's

imposition of postrelease control. Id. at ¶ 70. We therefore reversed and remanded the case

to the trial court "for the limited purpose of permitting the trial court to employ the [postrelease

control] correction procedures of R.C. 2929.191." Id. at ¶ 76.

{¶ 4} On July 18, 2012, the trial court held a resentencing hearing in accordance with

our remand. At the hearing, appellant objected to the limited nature of the proceeding and

asked that he be given additional jail-time credit for time he spent in the Warren County Jail 1 while serving the remainder of a federal sentence, which ended May 17, 2011. The trial

court denied appellant's request, re-imposed a five-year prison term, and gave appellant jail-

1. Appellant had been serving a sentence at a federal penitentiary in Terre Haute, Indiana when he was transferred into Warren County's temporary custody on March 11, 2011. Appellant's federal sentence expired May 17, 2011. -2- Warren CA2012-07-065

time credit for 428 days. The trial court then advised appellant that he was subject to three

years of mandatory postrelease control upon his release from prison.

{¶ 5} Appellant appealed, raising three assignments of error.

{¶ 6} Assignment of Error No. 1:

{¶ 7} THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO FIVE

YEARS IN PRISON FOR VIOLATING R.C. 2911.02.

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

resentencing him to a five-year prison term as 2011 Am.Sub.H.B. No. 86 (H.B. 86), which

became effective on September 30, 2011, reduced the maximum sentence for third-degree

felonies to 36 months. Because appellant was resentenced on July 18, 2012, after the

effective date of H.B. 86, appellant contends he is entitled to the benefit of a reduced

sentence. The state, however, argues H.B. 86 is inapplicable to appellant as his sentence

was actually imposed on August 30, 2011.

{¶ 9} This court has addressed the issue presented by appellant in a similar case.

See State v. Clay, 12th Dist. Madison No. CA2011-12-016,

. In Clay, the

defendant was convicted of possession of criminal tools, vandalism, and robbery. Id. at ¶ 3.

He was sentenced on February 2, 2011 to a one-year prison term for possession of criminal

tools and a one-year prison term for vandalism, which were to run concurrent to each other,

but consecutive to a five-year prison term for the robbery conviction. Id. On appeal, we

found the offenses of robbery and possession of criminal tools allied offenses of similar

import, and we remanded the matter to the trial court with instructions to merge the offenses

at sentencing after the state elected which of the allied offenses to pursue. Id. at ¶ 4. Clay

was resentenced on November 4, 2011, at which time the state elected to pursue sentencing

on the robbery offense. Id. at ¶ 5. The trial court, believing H.B. 86 was applicable to the

defendant, resentenced Clay to a one-year prison term for vandalism, to run consecutively to -3- Warren CA2012-07-065

a 36-month prison term for the robbery conviction. Id. at ¶ 6. On appeal, we reversed the

trial court's decision, finding that Clay's sentence was "imposed" when the penalty was

originally pronounced on February 2, 2011. Id. at ¶ 16-17. The fact that we had reversed the

sentences and remanded the matter to correct an allied offense error did not negate the fact

that a penalty had been imposed prior to the effective date of H.B. 86. Id. at ¶ 18. We

reversed and remanded for the trial court to resentence Clay using the sentencing laws that

were in effect prior to the effective date of H.B. 86. Id. at ¶ 22.

{¶ 10} Here, a sentence was imposed on appellant on August 30, 2011, when the trial

court pronounced the five-year prison term. As a penalty had been imposed on appellant

prior to the effective date of H.B. 86, appellant was not entitled to the benefit of the less

stringent sentencing provisions. See R.C. 1.58(B); Clay at ¶ 16-18.

{¶ 11} Moreover, the July 18, 2012 resentencing hearing was held for the limited

purpose of properly advising appellant of his postrelease control obligations. Only that part of

appellant's sentence failing to properly impose the statutorily mandated postrelease control

was void and set aside by our holding in Vore,

at ¶ 75-76. See State v.

Fischer,

,

(holding that "when a judge fails to impose

statutorily mandated postrelease control as part of a defendant's sentence, [only] that part of

the sentence is void and must be set aside"). In all other respects, appellant's sentence was

affirmed and, therefore, was not subject to review by the trial court on resentencing. See

State v. Schleiger, 12th Dist. Preble No. CA2011-11-012,

.

{¶ 12} Accordingly, appellant's first assignment of error is overruled.

{¶ 13} Assignment of Error No. 2:

{¶ 14} THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO

MANDATORY POST-RELEASE CONTROL FOR THREE YEARS.

{¶ 15} In his second assignment of error, appellant argues the trial court erred when it -4- Warren CA2012-07-065

determined that postrelease control was mandatory rather than optional. Appellant contends

postrelease control was optional as he did not cause or threaten to cause physical harm

during the robbery. The state, relying on the most current version of the postrelease control

statute, R.C. 2967.28, argues a three-year period of postrelease control is mandated by the

statute as robbery is an "offense of violence."

{¶ 16} At the outset, we note that the version of R.C. 2967.28 relied on by the state is

inapplicable to appellant as he was sentenced before March 22, 2013, the effective date of

the current postrelease control statute.2 The version of R.C. 2967.28 in effect at the time of

appellant's sentencing called for a mandatory term of postrelease control for first and

second-degree felonies, for felony sex offenses, and "for a felony of the third degree that is

not a felony sex offense and in the commission of which the offender caused or threatened to

cause physical harm to a person." (Emphasis added.) Former R.C. 2967.28(B). Pursuant to

this division of the statute:

[A] period of post-control required by this division for an offender shall be of one of the following periods:

(1) For a felony of the first degree or for a felony sex offense, five years;

(2) For a felony of the second degree that is not a felony sex offense, three years;

(3) For a felony of the third degree that is not a felony sex offense and in the commission of which the offender caused or threatened physical harm to a person, three years.

R.C. 2967.28(B). For felonies of the third, fourth, and fifth degree that are not subject to

2. The current version of R.C. 2967.28(B) provides that postrelease control is mandatory for first and second- degree felonies, for a felony sex offense, and "for a felony of the third degree that is an offense of violence and is not a felony sex offense." (Emphasis added.) For those third-degree felonies that constitute an "offense of violence," postrelease control is mandatory for three years. R.C. 2967.28(B)(3). R.C. 2901.01(A)(9) defines an "offense of violence" and it specifically provides that robbery in violation of R.C. 2911.02 constitutes an "offense of violence." However, as discussed above, appellant was not sentenced under this version of the postrelease control statute. -5- Warren CA2012-07-065

division (B)(1) through (3), a sentence to a prison term "shall include a requirement that the

offender be subject to a period of post-release control of up to three years" if the parole

board determines that a period of postrelease control is necessary for that offender. R.C.

2967.28(C).

{¶ 17} Appellant was convicted of third-degree felony robbery in violation of R.C.

2911.02(A)(3). The issue, therefore, is whether appellant, in the commission of the robbery,

caused or threatened to cause physical harm to the bank teller. "Physical harm to persons"

is defined as "any injury, illness or other physiological impairment, regardless of its gravity or

duration." R.C. 2901.01(A)(3). The term "physiological impairment" is not defined by statute.

As such, the term is accorded its common, ordinary, everyday meaning. State v. Martin, 12th

Dist. Brown No. CA99-09-026,

, * 5 (Aug. 14, 2000); Sharp v. Union

Carbide Corp.,

(1988). "Impair" means to "make worse" or "diminish in

quantity, value, excellence, or strength." Webster's Third New International Dictionary 1131

(1993). "Physiological" means "characteristic of or appropriate to an organism's healthy or

normal functioning." Id. at 1707. The term "physiological impairment" may, therefore, "be

defined as a damaging or lessening of a person's normal physical functioning." State v.

Roof, 1st Dist. Butler No. CA77-10-0110,

, * 1 (Nov. 8, 1978).

{¶ 18} After reviewing the record, we find sufficient facts for the trial court to conclude

appellant caused or threatened to cause physical harm to the bank teller, such that

mandatory postrelease control is required. The bank teller testified at trial that appellant's

handwritten note demanding money had a significant impact on her ability to physically

function. Specifically, the teller testified appellant's action of handing her the demand note

caused her to "freeze." The teller testified she was unable to act and did not "snap out of it"

until appellant then questioned her "you got it?" Once appellant questioned her, she grabbed

the money from her drawer and handed it over to appellant, who immediately left the bank. -6- Warren CA2012-07-065

The teller testified that after appellant left, she again "froze," and she did not "snap out of it"

the second time until a manager walked by and asked her if something was wrong. The

teller's testimony clearly established appellant's actions diminished or lessened her normal

physical functioning, at least for a short period of time. As any physiological impairment,

"regardless of its gravity or duration," is sufficient under R.C. 2901.01(A)(3), we conclude that

the evidence supports the trial court's finding that postrelease control was mandatory for a

period of three years.

{¶ 19} Appellant's second assignment of error is, therefore, overruled.

{¶ 20} Assignment of Error No. 3:

{¶ 21} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S REQUEST TO

AWARD JAIL-TIME CREDIT FOR THE TIME HE WAS IN CUSTODY.

{¶ 22} In his third assignment of error, appellant argues the trial court violated his

Equal Protection rights when it failed to award him jail-time credit for the full period of time he

was in the custody of Warren County. Appellant contends he was taken into custody by

Warren County on March 11, 2011 and held during the pendency of his robbery charges. He

argues this date should be used by the court in determining his jail-time credit, not the May

17, 2011 date, which marked the expiration of his federal sentence. Appellant asserts he is

entitled to an additional 67 days of jail-time credit. The state contends appellant's argument

is barred by the doctrine of res judicata. We agree with the state.

{¶ 23} The doctrine of res judicata provides that "a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding except an appeal from that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant at the trial which

resulted in that judgment of conviction, or on an appeal from that judgment." State v.

Wagers, 12th Dist. Preble No. CA2011-08-007,

, ¶ 10, citing State v. -7- Warren CA2012-07-065

Szefcyk,

(1996), syllabus. Here, appellant does not seek to challenge the

propriety or validity of the July 18, 2012 resentencing. Rather, he attempts to attack the date

the trial court used for calculating jail-time credit. The May 17, 2011 date was utilized by the

trial court at appellant's original sentencing hearing on August 30, 2011. As such, appellant

could have, and should have, raised the issue of the proper starting date for calculating jail-

time credit on his original appeal. Appellant's resentencing for postrelease control purposes

does not open the door for him to retry issues that were previously raised or could have been

previously raised on direct appeal. See Fischer,

; State v. Sprauer,

12th Dist. Warren No. CA2010-04-033,

, ¶ 29 ("while 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").

{¶ 24} Appellant's third assignment of error is, therefore, overruled.

{¶ 25} Judgment affirmed.

PIPER and M. POWELL, JJ., concur.

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