State v. Krug, 2019 Ohio 926

Jon P. Krug was convicted after a jury trial of four counts of felonious assault (each with a repeat violent offender specification) and one count of carrying a concealed weapon for stabbing two men during a bar fight; he received an aggregate 37½-year sentence.
Krug lost multiple prior appeals and postconviction efforts: direct appeal (Krug I), postconviction appeal (Krug II), and appeals denying delayed new-trial and disclosure motions (Krug III).
The instant appeal challenges a trial-court April 6, 2018 entry that corrected his sentence to properly impose post-release control sanctions following a hearing on April 5, 2018.
Krug raises six assignments of error attacking his underlying conviction and trial counsel’s performance (self-defense burden, spoliation, jury instructions on duty to retreat, exclusion of a favorable witness/expert, sentencing findings, and a lesser-included offense instruction).
Krug argues the Sixth Circuit’s In re Stansell decision means a resentencing that corrects post-release control reopens the entire case for review; he asks this court to apply that reasoning to allow review of his prior claims.
The court declined to apply In re Stansell to Ohio state resentencings, held Krug’s substantive challenges were barred by res judicata, and affirmed the trial court’s judgment.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Krug)	Held
Whether resentencing to correct post-release control reopens all claims	Resentencing does not reopen prior adjudicated issues; only the corrected sentencing matters are reviewable	In re Stansell permits full review after resentencing for post-release control, so Krug may relitigate prior claims	Court: In re Stansell (federal habeas context) inapplicable to Ohio state resentencing; res judicata bars relitigation
Constitutionality of Ohio’s burden-shifting self-defense law (R.C. 2901.05(A) as applied)	State: statute was constitutional and prior decisions settle the issue	Krug: statute violates 2nd, 5th, and 14th Amendments by shifting burden of proof	Court: claim barred by res judicata; prior controlling precedent (Martin) upholds Ohio’s rule
Trial counsel ineffective for failing to seek spoliation sanction / independent testing of pooled blood	State: no basis to revisit trial errors on this resentencing appeal	Krug: counsel was ineffective for not preserving/testing blood evidence	Court: claim could have been raised earlier and is barred by res judicata
Challenges to jury instructions, witness/expert exclusion, maximum consecutive sentence, and denial of inferior-degree instruction	State: sentencing correction did not open these issues	Krug: these are meritorious trial errors warranting review	Court: all such challenges were or could have been raised in prior appeals and are barred by res judicata; no reopen by resentencing

Magwood v. Patterson, 561 U.S. 320 (2010) (a new judgment following resentencing creates a new habeas petitioning opportunity)
Martin v. Ohio, 480 U.S. 228 (1987) (upheld Ohio practice requiring defendant to prove self-defense)
District of Columbia v. Heller, 554 U.S. 570 (2008) (held individual right to possess firearms in the home; did not decide burden-of-proof for self-defense)
In re Stansell, 828 F.3d 412 (6th Cir. 2016) (applied Magwood to hold that resentencing to correct post-release control creates a new federal habeas judgment for filing purposes)
State v. Awan, 22 Ohio St.3d 120 (1986) (appellate courts will not consider errors not raised at a time they could have been corrected)
State v. Fisher, 128 Ohio St.3d 92 (2010) (res judicata does not permit relitigation of issues that were or could have been raised previously)