[Cite as State v. Minor,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs-

RENARDO MINOR Case No. 15CA81

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 99-CR-0372-D

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 7, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BAMBI COUCH PAGE RENARDO MINOR Prosecuting Attorney Inmate No. 377-030 Richland County, Ohio Marion Correctional Institution PO Box 57 By: DANIEL M. ROGERS 940 Marion-Williamsport Rd. E. Assistant Prosecuting Attorney Marion, Ohio 43302 38 South Park, Street Mansfield, Ohio 44902 Richland County, Case No. 15CA81 2

Hoffman, P.J.

{¶1} Defendant-appellant Renardo Minor appeals his sentence entered by the

Richland County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

STATEMENT OF PROCEDURAL HISTORY

{¶2} On July 15, 1999, the Richland County Grand Jury indicted Appellant on

one count of aiding and abetting aggravated murder with a firearm specification, in

violation of R.C. 2903.01(B), and one count of aiding and abetting aggravated robbery

with a firearm specification, in violation of R.C. 2911.01(A)(1). The Indictment also

charged Appellant’s co-defendant, Ronald Leaks, with the same offenses. Said charges

arose out of the March 12, 1999 robbery of Papa Johnny's Drive Thru in Mansfield, Ohio,

and the murder of Clarence Jacocks, the store clerk.

{¶3} Following a jury trial, Appellant was sentenced to a term of imprisonment of

twenty years to life, and a consecutive ten year term of imprisonment for abetting

aggravated robbery. The firearm specifications carried two mandatory three year terms

of imprisonment to be served consecutively.

{¶4} This Court affirmed Appellant's convictions and sentences in State v. Minor

(March 2, 2000), Richland App. No. 99CA63, unreported. On May 23, 2000, Appellant

filed a Motion to Reopen Appeal, which this Court granted on limited issues via Judgment

Entry filed June 21, 2000. State v. Minor, No. 99CA63, unreported. This Court again

affirmed Appellant's convictions and sentences via Opinion and Judgment Entry in State

v. Minor, Richland App. No. 99CA63, unreported.

{¶5} On July 27, 2015, Appellant filed separate motions for Sentencing, Final

Appealable Order and Allied Offenses Determination. On August 24, 2015, the trial court Richland County, Case No. 15CA81 3

issued an order on the Motion for Sentencing finding the motion to be an untimely petition

for post-conviction relief. The trial court applied res judicata and overruled Appellant's

first, third and fourth assignments of error. The trial court sustained Appellant's second

argument regarding post-release control, and scheduled a video conference for

resentencing for the limited purpose of imposing post-release control on the charge of

aiding and abetting robbery.1

{¶6} Appellant appealed the August 24, 2015 Order of the trial court, assigning

as error:

{¶7} “I. WHETHER THE TRIAL COURT, AFTER FINDING THE [SIC] AT LEAST

THE AILING POSTRELEASE CONTROL PORTION OF THE UNDERLYING

ATTEMPTED SENTENCES(S) WAS/IS ‘CONTRARY TO LAW’ AND THUS VOID,

ABUSED ITS DISCRETION THEREBY VIOLATING DUE PROCESS BY: (1)

ATTEMPTING TO RECHARACTERIZE THE PROCEEDINGS AS AN UNTIMELY

PETITION FOR POSTCONVICTION RELIEF; AND, (2) ASSERTING A RES JUDICATA

CONSEQUENCE WHERE THE JUDGMENT ON ITS FACE PRESENTED A PRIMA

FACIE [SIC] OF INVALIDITY. SEE: STATE V. SIMPKINS, 117 OHIO ST. 3D 420, AT:

¶23; AND, ¶30.

“II. WHETHER THE TRIAL COURT’S FAILURE TO INDICATE [‘THE

SEQUENCE’] WITH WHICH THE UNDERLYING CONSECUTIVE SENTENCES ARE

TO BE SERVED IMPLICATES DUE PROCESS RENDERING THE ATTEMPTED

SENTENCES A MERE NULLITY AND VOID. SEE: STATE V. KISH, 2014 OHIO APP.

1 The trial court did not proceed with the scheduled resentencing on September 16, 2015, and as of the date of oral argument herein, the trial court has not proceeded in resentencing Appellant. Richland County, Case No. 15CA81

, AT: HN1; AND, HN2; O.R.C. §2929.19(B)(3)(E) (THE ORAL

PRONOUNCEMENT REQUIREMENT); AND, STATE V. POWELL (3RD DIST.), 2014

OHIO APP. LEXIS 3771, AT: HN10, QUOTING: STATE V. CVIJETINOVIC, 8TH DIST.

CUYAHOGA NO. 99316,

; AND, STATE V. FORD (3RD DIST.), 2014

2014

“III. WHETHER (AND UPON THE ORDERED RESENTENCING PROCEDURE)

THIS CASE IS EXEMPT FROM THE MANDATES OF: O.R.C. §2929.191 AS DEFINED

IN: STATE V. SINGLETON, 124 OHIO ST. 3D 173, AS WELL A RETROACTIVE

APPLICATION OF THE NEW JUDICIAL RULING PRONOUNCED IN: STATE V.

FISCHER, 128 OHIO ST. 3D 92, IMPLICATING BOTH: CRIM.R. 43(A)’A RIGHT TO BE

‘PHYSICALLY PRESENT;’ AND, THE MANDATE FOR [‘DE NOVO’] RESENTENCING

AS DEFINED IN: ROMITO V. MAXWELL (1967), 10 OHIO ST. 2D 266, 267-268, AND

ESPECIALLY SO WHERE APPELLANT HAS FULLY COMPLETED ONE OR MORE OF

THE UNDERLYING SENTENCES. SEE: STATE V. HOLDCROFT, 137 OHIO ST. 3D

526, AT: [6]; AND, [7].

“IV. WHETHER THE TRIAL COURT’S INHERENT FAILURE TO ‘INQUIRE’

WHETHER ONE OR MORE OF THE ‘MULTIPLE COUNTS’ WERE/ARE ALLIED

OFFENSES OF SIMILAR IMPORT, O.R.C. §2941.25(A) THEREBY PROHIBITING

CONVICTION ON SUCH COUNTS, IMPLICATES DUE PROCESS. SEE: U.S.C.A.

CONST. AMEND 5.”

I

{¶8} In the first assignment of error, Appellant argues the trial court incorrectly

characterized his motion for sentencing as an untimely motion for post-conviction relief Richland County, Case No. 15CA81 5

and the trial court erred in finding the claims asserted therein barred by res judicata.

Appellant maintains the trial court's finding the post-release control portion of the

sentence void renders the entire sentence void; therefore, not subject to the timeliness

requirements of R.C. 2953.21(A)(2) and res judicata. We disagree.

{¶9} In State v. Fischer,

,

, the Ohio Supreme

Court held "only the offending portion of the sentence is subject to review and correction."

Therefore, while Appellant's sentence is void with respect to post-release control, the

remainder of his sentence is valid and subject to the timeliness requirements of R.C.

2953.21(A)(2) and res judicata.

{¶10} The Ohio Supreme Court has held motions to correct sentences are

petitions for post-conviction relief pursuant to R.C. 2953.21. State v. Reynolds,

,

(1997). Pursuant to R.C. 2953.21(A)(2), a petition for post-

conviction relief must be filed no later than 365 days after the trial transcript is filed in the

direct appeal from the judgment of conviction and sentence. Appellant did not set forth

any exceptions for the untimely filing of a petition for post-conviction relief, pursuant to

R.C. 2953.21.

{¶11} Appellant filed a direct appeal from his conviction, and reopened his appeal

via application to this Court assigning as error the ineffective assistance of trial counsel.

We find the arguments presented in this appeal were capable of being presented on direct

appeal and/or on reopening of the appeal. As such, we agree with the trial court

Appellant's motion was properly denied as an untimely petition for post-conviction relief

and, furthermore, Appellant’s arguments are barred by res judicata.

{¶12} The first assignment of error is overruled. Richland County, Case No. 15CA81 6

II.

{¶13} In the second assignment of error, Appellant argues the trial court erred in

failing to expressly indicate the sequence of Appellant's consecutive sentences;

therefore, Appellant's sentence is void. We disagree.

{¶14} On August 9, 1999, the trial court sentenced Appellant to an indefinite prison

term of twenty years to life on the aiding and abetting aggravated murder; to a prison term

of ten years on the aiding and abetting aggravated robbery; and to two mandatory three

year prison terms on the firearm specifications. All the terms of imprisonment were

ordered to be served consecutively without indication of order.

{¶15} In State v. Peace, 3rd Dist. No. 5-13-32,

, the Third District

Court of Appeals held,

On November 9, 1998, the trial court entered a judgment finding

Peace guilty of aggravated murder, aggravated arson, and tampering with

evidence. On February 11, 1999, the trial court sentenced Peace to a life

prison term with parole eligibility after 20 years for the aggravated murder

offense, a nine year prison term for the aggravated arson offense, and a

four year prison term for the tampering with evidence offense. The trial court

ordered that the “prison terms are to be served consecutively, one after the

other, for an aggregate prison term of life with parole eligibility after serving

thirty-three (33) years.” (Doc. No. 103 at 3).

***

Section 5120–2–03.1(M) of the Ohio Administrative Code describes

the manner in which the time served by an offender is to be allocated when Richland County, Case No. 15CA81 7

the offender is sentenced to a stated prison term consecutive to a life prison

term:

When an offender is serving any stated prison terms

consecutively to any life terms of imprisonment and/or to any one,

three, five and/or six-year mandatory prison terms imposed pursuant

to division (D)(1)(a)(i) of section 2929.14 the Revised Code, for using a

firearm in the commission of an offense, and/or division (D)(1)(a)(ii) of

section 2929.14 of the Revised Code, for committing a felony by

discharging a firearm from a motor vehicle, the aggregate of all such

one, three, five and/or six-year mandatory prison terms shall be served

first, then the aggregate of all other mandatory prison terms shall be

served, and then the aggregate of the non-mandatory portion of the

stated prison terms shall be served, and then the aggregate of the non-

mandatory portion of the life terms of imprisonment shall be served.

[Emphasis in original]

According to OAC 5120–2–03.1(M), Peace's time served is to be first

allocated to the stated prison terms of nine years and four years for the

aggravated arson and the tampering with evidence offenses. At the time of

the March 2013 hearing, Peace had completed the prison terms for these

offenses and was serving time for the life prison term for the aggravated

murder offense. We note that aggravated murder is an unclassified felony

to which the postrelease control sanction does not apply. See State v. Clark,

, 2008–Ohio–3748, ¶ 36. Richland County, Case No. 15CA81 8

Therefore, pursuant to the Supreme Court's holding in Holdcroft and

by operation of OAC 5120–2–03.1(M), the trial court was without the

authority to impose the term of postrelease control because at the time of

the hearing Peace had already completed the stated prison terms for the

aggravated arson and the tampering with evidence offenses, which were

the only portion of his aggregate sentence to which the postrelease control

sanction applied.

{¶16} Here, pursuant to R.C. 2929.14(C)(1)(a), Appellant served his three year

sentence for the firearm specification prior to and consecutive to his ten year definite

sentence for aiding and abetting aggravated robbery. Subsequently, pursuant to O.A.C.

5120-2-03.1M, Appellant served his ten year definite sentence for aiding and abetting

aggravated robbery prior to and consecutive to his indefinite twenty years to life sentence

for aiding and abetting aggravated murder. Therefore, as of November 30, 2015,

Appellant has completed his sentences for the firearm specification and aiding and

abetting aggravated robbery and is currently serving his sentence for aiding and abetting

aggravated murder.

{¶17} We do not find Appellant’s sentence void for failure to set forth the sequence

of consecutive sentences, pursuant to State v.

{¶18} The second assignment of error is overruled.

III.

{¶19} In the third assignment of error, Appellant maintains the trial court erred in

applying R.C. 2929.191 in denying Appellant's request for a de novo sentencing hearing Richland County, Case No. 15CA81 9

and ordering Appellant resentenced via video conference for the limited purpose of

imposing post- release control.

{¶20} In State v. Fischer,

,

, the Ohio Supreme

Court held sentences failing to properly impose post-release control are void only with

respect to the portion of the sentence failing to impose post-release control; thus, the

"new sentencing hearing to which an offender is entitled…is limited to proper imposition

of postrelease control." This Court has applied Fischer to cases in which defendants were

sentenced prior to July 11, 2006, and affirmed decisions in which the trial court denied

the defendant a de novo sentencing hearing. See, State v. Bunting, Stark App. Nos. 2011

CA 00112, 2011 CA 00130, 2011CA 00131, 2012- Ohio- 445.

{¶21} In Bunting, supra, this Court also held with regard to video conferencing,

This Court recently addressed the issue of a defendant's right to be

physically present at a re-sentencing hearing in State v. Dunivent, Stark

App.No.2011 CA00160, 2011–Ohio–6874.

In Dunivent, this Court concurred with the analysis of the Tenth

District Court of Appeals in State v. Mullins, Franklin App. No. 09AP–1185,

2011–Ohio–1256, ¶ 6–11, which held that such error was not structural

error, and finding that the issue should be reviewed under the plain error

doctrine.

This Court went on to find that “any error in the video procedure is

harmless. Harmless error is “[a]ny error, defect, irregularity, or variance

which does not affect substantial rights shall be disregarded.” Crim.R.

52(A). Overcoming harmless error requires a showing of undue prejudice Richland County, Case No. 15CA81 10

or a violation of a substantial right. Appellant has not demonstrated any

prejudice in the video procedure or that the outcome would have been

different.”

The Appellant herein, like the Appellant in Dunivent, has failed to

allege that he was prejudiced in any way by the video conferencing,

We therefore find that even if it were error to re-sentence Appellant

by video conferencing in this case, any such error is harmless.

{¶22} As with the defendants in both Dunivent and Bunting, Appellant herein has

not demonstrated prejudice as a result of the scheduled video proceedings and any

presumed error would be harmless. Case law in Ohio does not require the trial court to

make Appellant physically present for the limited purpose of resentencing to properly

impose post-release control, and Appellant is not entitled to a de novo sentencing

hearing.2

{¶23} The third assignment of error is overruled.

IV.

{¶24} In the fourth assignment of error, Appellant argues the trial court erred in

finding his arguments with regard to allied offenses barred by res judicata. We disagree.

{¶25} Appellant maintains his convictions for aiding and abetting aggravated

murder and aiding and abetting aggravated robbery are allied offenses and should merge

for sentencing.

2Because the trial court has not filed an order resentencing Appellant to PRC as of the date of oral argument, we find Appellant’s Holdcroft argument premature. Richland County, Case No. 15CA81 11

{¶26} As set forth in the Statement of Procedural History above, Appellant filed a

direct appeal from his conviction and sentence. Appellant further reopened his appeal to

assign as error the ineffective assistance of trial counsel. Appellant did not assign as

error the argument his convictions were allied offenses subject to merger although the

argument could have been raised upon information contained in the original record.

{¶27} Accordingly, we find the trial court did not err in finding the argument barred

by the doctrine of res judicata.

{¶28} The fourth assignment of error is overruled.

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

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur