STATE OF OHIO, PLAINTIFF-APPELLEE, v. SHAITON L. ANDREWS, DEFENDANT-APPELLANT.
CASE NO. 1-10-78
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
May 23, 2011
[Cite as State v. Andrews, 2011-Ohio-2462.]
Appeal from Allen County Common Pleas Court Trial Court No. CR2004 0537 Judgment Affirmed
Shaiton L. Andrews, Appellant
Christina L. Steffan for Appellee
PRESTON, J.
{¶1} Defendant-appellant, Shaiton L. Andrews (hereinafter “Andrews“), appeals the judgment of the Allen County Court of Common Pleas resentencing him to twenty-six (26) years in prison. For the reasons that fоllow, we affirm.
{¶2} This case originated on January 13, 2005, when the Allen County Grand Jury returned an indictment against Andrews, charging him with two separate counts of aggravated robbery in violation of
{¶3} On January 24, 2005, Andrews appeared in court for arraignment and enterеd pleas of not guilty.
{¶4} On July 21, 2005, a hearing was held on a motion filed by Andrews’ counsel, which sought leave to withdraw from the case. The triаl court found the motion to be well taken, and permitted Andrews’ counsel to withdraw. At that time, Andrews informed the trial court that he wished to represent himself. The trial court ordered that new counsel be appointed and ruled that it would take up Andrews’ request to go forward pro se after new counsel was appointed.
{¶5} On August 15, 2005, following the appointment of new defensе counsel, a hearing was held on Andrews’ request to represent himself. Again, Andrews repeated his desire to go forward prо se in the case. The trial court then
{¶6} On August 29-30, 2005, a jury trial was held, and after the presentation of evidence, the jury returned a verdict finding Andrews guilty on both counts in the indictment, as well as findings of guilty on both of the firearm specifications. The matter then proceeded to sentencing. At the sentеncing hearing, the trial court sentenced Andrews to ten (10) years in prison on each of the aggravated robbery counts and three (3) years in prison on each of the firearm specifications. All sentences were ordered to run consеcutively, for an aggregate sentence of twenty-six (26) years in prison.
{¶7} This Court affirmed Andrews’ conviction on July 24, 2006. State v. Andrews, 3d Dist. No. 1-05-70, 2006-Ohio-3764.
{¶8} On October 25, 2010, Andrews filed a Motion for Resentencing claiming that his sentence was “void” because the trial court had failed to comply with the instruсtions pertaining to postrelease control pursuant to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961 and other related cases. On October 26, 2010, the trial court granted Andrews’ motion.
{¶9} On November 17, 2010, a resentencing hearing was held, at which time, the trial court resentenced Andrews to ten (10) yеars in prison on each of the aggravated robbery counts, and three (3) years in prison on each of the firearm sрecifications. All sentences were again ordered to run consecutively, for an aggregate sentence оf twenty-six (26) years in prison. In addition, the trial court advised Andrews that he was subject to five (5) years of mandatory postreleasе control.
{¶10} Andrews now appeals and raises the following assignment of error.
ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A SENTENCE BASED ON IMPERMISSIBLE FACTORS NOT SUPPORTED BY THE RECORD AND INCONSISTENT AND NOT COMMENSURATE WITH SIMILAR OFFENDERS, AND CONTRARY TO LAW, IN VIOLATION OF DUE PROCESS.
{¶11} In his only assignment of error, Andrews argues that the triаl court abused its discretion in sentencing him to twenty-six (26) years in prison on two counts of aggravated robbery, each with a fireаrm specification. Andrews cites several reasons why he believes his sentence was unjust. First, Andrews claims that the trial court erred in finding that he had been part of an organized criminal activity. Andrews also claims that the trial court erred in referencing his juvenile record when it was sealed. Andrews additionally argues that the trial court based its decision on impermissible factоrs and failed to consider the relevant sentencing
{¶12} However, on Dеcember 23, 2010, the Ohio Supreme Court issued its decision in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, which clarified the errors that could be reviewed after a new sentencing hearing is held for purposes to correct a trial court‘s failure to properly impose postrelease control. In Fischer, the Court abrogated parts of its decision in Bezak and held “that the new sentencing hearing to which an offender is entitled under Bezak is limited to proper imposition of postrelease control.” Id. at ¶29. The Court further held that “[a] sentencе that does not include the statutorily mandated term of postrelease control is void, is not precluded from apрellate review by principles of res judicata and may be reviewed at any time, on direct appeal or by сollateral attack.” Id. at paragraph one of the syllabus. However, “res judicata still applies to other аspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence.” Id. at paragraph three of the syllabus (emphasis added).
{¶13} Consequently, under Fischer, when postrelease control is not properly included in a sentence for a particular offense, that sentence is void, but “only the offending portion оf the sentence is subject to review and correction.”
{¶14} Here, the purpose of Andrews’ resentencing hearing was to correct the portion of the sentence pertaining to postrelease control. As this Court has previously stated, a defendant‘s resentencing hearing under Bezak “cannot be used as a vehicle to reopen all other aspects of his case.” State v. Giffin, 3d Dist. No. 1-10-27, 2011-Ohio-1462, ¶9. Thus, any issues raised on appeal from Andrews’ resentencing hearing must be limited to the subject of postrelease control; however, Andrews’ assignment of error is not related to postrelease control. Furthermore, we find that the issues raised by Andrews in this appeal are barred by res judicata since they could have been raised in the trial court at his original sentencing or in this Court in his direct appeal of his conviction and sentence. See State v. Bregen, 12th Dist. No. 2010-06-039, 2011-Ohio-1872, ¶27.
{¶15} Therefore, Andrews’ assignment of error is overruled.
{¶16} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jnc