State v. GatesState v. Gates
Spiros P. Cocoves, for appellant.
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OSOWIK, P.J.
{¶ 1} This is an appeal from a resentencing judgment of the Lucas County Court of Common Pleas. On April 27, 2010, appellant was resentenced pursuant to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, in order to correct an initial failure tо include the requisite notice of postrelease control in the original August 5, 2003 sentencing entry.
{¶ 2} In the course of the Bezak resentencing, the trial court judgment addressed several postfactum motions bearing no correlation to the postrelease control purpose of
{¶ 3} Appellant, John B. Gates, sets forth the following two аssignments of error:
{¶ 4} “FIRST ASSIGNMENT OF ERROR THAT: The Court of Common Pleas abused its discretion in denying appellant‘s motion to withdraw his appeal [sic].
{¶ 5} “SECOND ASSIGNMENT OF ERROR: The Court of Common Pleas erred in overruling appellant‘s motion to dismiss the indictment on grounds that it failed to set forth an essential element of the charged offense, to wit that defendant committed robbery knowingly.”
{¶ 6} The following undisputed facts are relevant to this appeal. On May 30, 2003, appellant was indicted on one count of receiving stolen property, in violation of
{¶ 7} On July 22, 2003, pursuant to a nеgotiated plea agreement, appellant pled no contest to the charges. In exchange, appellee agreed to dismiss additional robbеry
{¶ 8} On October 1, 2009, approximately six years after the conclusion of the case, appellant filed a motion to withdraw his pleas in conjunction with a request for resentencing on the basis of incomplete postrelease control notification. On February 25, 2010, approximately seven years follоwing the conclusion of the case, appellant filed a motion to dismiss the robbery indictment to which he had confessed and been convicted in 2003.
{¶ 9} In April 2010, a hearing was held on appellant‘s postrelease control resentencing motion. Appellant was fully resentenced and the original incomplete postrelease control notification was rectified. In addition, the trial court denied appellant‘s motion to withdraw his original pleas and simultaneously denied the motion tо dismiss the 2003 robbery indictment. This appeal ensued.
{¶ 10} The outcome of this appeal is determined and controlled by the recent Supreme Court of Ohio ruling set forth in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, and its progeny. In Fischer, the court held in relevant part, “We hold that the new sentencing hearing to which an offender is entitled under Bezak is limited to proper imposition of postrelease control. In so holding, we come more into line with legislative provisions concerning appellate review of criminal sentences.”
{¶ 11} In conjunction with this, the court exprеssly authorized appellate courts to directly correct such sentencing defects without remanding for resentencing. The court
{¶ 12} A wealth of consistent post-Fischer appellate rulings is illustrative of its impact on determinations suсh as that currently pending before this court. In a recent Ninth District Court of Appeals case, which similarly included a disputed motion to withdraw guilty plea accompаnying a Bezak postrelease control resentencing, the court held in relevant part, “In accordance with Fischer, the postrelease control portion was the only portion of his sentence subject to review and correction. Id. The new sentencing hearing should have been limited to notifying Lewis of postrelease cоntrol and including it in his sentence. The trial court, however, exceeded the limited scope of the hearing and attempted to reimpose the original sentence. Because the trial court exceeded its authority when it attempted to resentence Lewis on aspects of his sentence that were not void, we vacate those parts of the resentencing entry that address anything other than postrelease control. Lewis’ original consecutive sentences remain valid, as does the portion of the appealed resentencing judgment that addresses post release control.” State v. Lewis, 9th Dist. No. 25080, 2011-Ohio-2014.
{¶ 13} Similarly, in a recent Eighth District Court of Appeals case, the court rejected efforts by the appellant on a postrelease control resentencing to raise for the first time the issue of merger of allied offenses from his original 1999 case that, like the
{¶ 14} In conformity with the foregoing controlling case law, we decline to address the merits of the assignments of error as they stem from the court‘s void actions at resentencing that are unrelated to the imposition of postrelease control. In the present
{¶ 15} Wherеfore, solely that portion of the appealed resentencing judgment addressing postrelease control is hereby affirmed. Those portions of the resеntencing judgment that address anything other than postrelease control are res judicata, void, and hereby vacated. Pursuant to App.R. 24, costs of this appeal are to be divided equally between the parties.
JUDGMENT AFFIRMED, IN PART, AND VACATED, IN PART.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Arlene Singer, J.
Thomas J. Osowik, P.J. CONCUR.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.