STATE OF OHIO, Plаintiff-Appellee, vs. PERCY J. ABERNATHY, III, Defendant-Appellant.
Case No. 10CA3341
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
2-28-11
[Cite as State v. Abernathy, 2011-Ohio-1056.]
ABELE, J.
DECISION AND JUDGMENT ENTRY; CRIMINAL APPEAL FROM COMMON PLEAS COURT
APPELLANT PRO SE: Percy J. Abernathy, III, #549-410, P.O. Box 69, London, Ohio, 43140, Pro Se
COUNSEL FOR APPELLEE: Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Scioto County Assistant Prosecuting Attorney, 602 Seventh Street, Room 310, Portsmouth, Ohio 45662
{¶ 1} This is an appeal from a Scioto County Common Pleas Court re-sentencing judgment. Percy J. Abеrnathy, III, defendant below and appellant herein, assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED DURING SENTENCING, WHEN IT FORCED DEFENDANT TO STICK TO A 9 YEAR SENTENCING AGREEMENT, AFTER JURY TRIAL, WHEN IT WAS OBVIOUS FROM THE RECORD AND THE
DEFENDANT THAT HE NO LONGER WANTED THE AGREEMENT AND THAT HE WANTED THE COURT TO CONSIDER THE APPLICABLE FACTORS TO DETERMINE WHETHER OR NOT HE QUALIFIED FOR A THREE YEAR MINIMUM/TIME SERVED SENTENCE DURING RESENTENCING.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED DURING SENTENCING, WHEN IT FAILED TO PROPERLY NOTIFY THE DEFENDANT OF ALL THE APPLICABLE CONSEQUENCES FOR A POST RELEASE CONTROL VIOLATION IF HE WAS TO VIOLATE PRC AFTER BEING PLACED UPON IT BY THE PAROLE BOARD..”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN FAILING TO SUPPRESS EVIDENCE OBTAINED AS THE RESULT OF AN UNREASONABLE WARRANTLESS SEARCH AND SEIZURE.”
{¶ 2} In 2007, appellant was convicted of (1) first-degree felony рossession of cocaine; (2) first-degree felony trafficking in crack cocaine; (3) fifth-degree felony possession of cocaine; and (4) possession of criminal tools. The trial court sentenced appellant to serve: (1) a mandatory nine-year prison term for possession of cocaine; (2) a mandatory nine-year prison term for trafficking; (3) twelve months for the fifth-degree felony drug possession charge; and (4) twelve months for the possession of criminal tools. The court further ordered the sentences to be served consecutively for a total sentence of twenty years.
{¶ 3} In State v. Abernathy, Scioto App. No. 07CA3160, 2008-Ohio-2949, at ¶¶45-46 (Abernathy I), we reversed appellant‘s sentence on the grounds that the possession and trafficking of crack cocaine arе allied offenses of similar import. The trial court issued a new judgment on
{¶ 4} Appellant commenced these particular proceedings оn May 21, 2009 and argued that the re-sentencing is void because the trial court did not adequately inform him of post-release control. A sentencing hearing was then held on December 16, 2009, at which time the court conveyed that information to appellant. The following day, the trial court issued anothеr re-sentencing judgment that imposed an aggregate sentence of nine years and repeated the warning concerning postreleasе control. On May 12, 2010, we granted appellant leave to file a delayed appeal, and the matter is properly before us for review.
I
{¶ 5} Appellant‘s first assignment of error appears to posit that the trial court erred in re-sentencing him. We agree, albeit for different reasons than appellant argues in his brief.
{¶ 6} The 2009 re-sentencing entry modified the 2008 re-sentencing entry by reducing the term of imprisonment from eleven years to nine. Once a valid sentence is carried into execution, a trial court has no jurisdiction to modify that sentence. State v. Garretson (2000), 140 Ohio App.3d 554, 558-559, 748 N.E.2d 560; State ex rel. Duffy v. Pittman, Portage App. No. 2006-P-0043, 2007-Ohio-346 at ¶9; State v. Young, Montgomery App. No. 20813, 2005-Ohio-5584, at ¶6. Of course, at the time appellant commenced the instant proceedings, the 2008 judgment was not valid as it did not contain notification about post-release control. Seе State v. Bezak, 114 Ohio St.3d 94, 868 N.E.2d 961, 2007-Ohio-3250, at the syllabus. Thus, at the time of the trial court proceedings, the trial court did possess jurisdiction to modify that sentence.
{¶ 8} Therefore, we sustain appellant‘s first assignment of error to this limited extent. The December 17, 2009 judgment will be vacated and the matter remanded for further proceedings consistent with this opinion.
II
{¶ 9} Appellant asserts in his second assignment of error that the court erred by not warning him of the consequences of violating his postrеlease control. The appellee candidly concedes this error in its brief. Although this error is technically moot, in view of our disposition of appellant‘s first assignment of error, we nevertheless agree with appellee.
{¶ 10} We acknowledge that the December 16, 2009 hearing transcript reveals that the trial court warned appellant of “consequences” for “violating conditions of post release control.” Howеver, at the hearing no further explanation of those consequences occurred. Further, the
{¶ 11} When imposing sentence, trial courts must notify an offender at the sentencing hearing that he will be supervised pursuant to
{¶ 12} Thus, we agree with the appellee it is insufficient to simply warn appellant that “consequences” would arisе for violating postrelease control. Therefore, appellant‘s second assignment of error is well-taken and hereby sustained.
III
{¶ 13} Appеllant‘s third assignment of error asserts the trial court committed reversible error by not granting his motion to suppress evidence during the original trial court prоceedings. We disagree.
{¶ 14} This is an issue that should have been pursued in Abernathy I. The doctrine of res judicata bars an issue from being raised in a subsequent appeal if it was also raised, and disposed of on the merits, in a previous appeal. Moreover, an argument that could have been raised on a previous appeal, but was not, is also barred by the doctrine of res judicata. The Ohio Supreme Court made clear in Fischer, 2010-Ohio-6238, at paragraph three of the syllabus, that res
{¶ 15} Accordingly, to the extent that this suppression issue was raised in Abernathy I, See 2008-Ohio-2949, at ¶¶15-39, it cannot be considered again at this late date. To the extent that this issuе could have been raised in Abernathy I, but was not, it is also overruled. The suppression issue cannot be considered again at this late date and apрellant‘s third assignment of error is hereby overruled.
{¶ 16} Having sustained appellant‘s first assignment of error to a limited extent, as well as his second assignment of error, the 2009 re-sentencing entry is vacated and this matter is hereby remanded for further proceedings consistent with this opinion.
JUDGMENT VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
JUDGMENT ENTRY
It is ordered that the judgment be vаcated and the case remanded for further proceedings consistent with this opinion. Appellant to recover of 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 Cоurt directing the Scioto County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, P.J. & Kline, J.: Concur in Judgment & Opinion
For the Court
BY: _________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.