State v. Norris, 2011 Ohio 1795

Norris was indicted on two felonious assault counts with firearm specifications and tried by bench; convictions upheld on appeal and remanded for merger correction.
This court had previously held allied felonious assault convictions should merge for sentencing and remanded for the State to elect which count would merge.
On remand, the trial court resentenced Norris to five years total, including three years on firearm specs and two years on felonious assault, with the firearm specs to run before and consecutive to the felonious assault term.
The 2010 resentencing did not address postrelease control on the record, though the journal entry imposed five years of postrelease control and stated potential further prison term for violation.
On appeal, Norris challenges: (1) denial of motions for a new trial and timeliness; (2) lack of allocution at resentencing; (3) postrelease-control errors; (4) improper or undeclared court costs at remand.
This court remands to correct the July 2, 2010 entry to reflect three years of mandatory postrelease control, consistent with the original sentence and merger ruling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of appeal from March 18, 2009 order	Norris contends the March 18, 2009 denial is appealable as part of the resentencing challenge.	State asserts Norris failed to timely appeal that order; hence no jurisdiction over first two assignments.	Assignments dismissed for lack of jurisdiction; untimely appeal.
Right of allocution at resentencing	Norris argues the court failed to ask for her statement before sentencing.	State denies error; defense counsel spoke at length and Crim.R. 32(A) concerns were not prejudicial here.	Not reversible error; the absence of personal address is harmless where counsel spoke.
Postrelease control on remand and sentencing entry	The court should reimpose postrelease control orally and align with the remand mandate.	Remand was limited to merger/correct conviction entry; no oral reimposition required since original postrelease control remained valid and Saxon limits remand scope.	Remand to correct postrelease control to three years; trial court erred in issuing a new five-year term.
Court costs at resentencing	Costs should be reimposed or clearly addressed on remand.	Costs were properly imposed at original sentencing and no issue on remand; no reimposition needed.	No error; costs not reimposed on remand; original costs remained valid.

State v. Saxon, 109 Ohio St.3d 176 (Ohio 2006) (remand limited to issues on appeal; remand relevance to sentencing)
State v. Campbell, 90 Ohio St.3d 320 (Ohio 2000) (harmless error when defendant not personally addressed if counsel speaks)
State v. Smelcer, 89 Ohio App.3d 115 (Ohio App. 1993) (Crim.R. 32(A) issues may be harmless depending on counsel participation)
State v. Fischer, Ohio St.3d 2010-Ohio-6238 (Ohio 2010) (remand scope and misalignment with merger orders; sentencing on remand limited)
State v. Craddock, 8th Dist. No. 94387, 2010-Ohio-5782 (Ohio App. 2010) (Crim.R. 32 applicability and resentencing procedures in some contexts)