STATE OF OHIO, Plаintiff-Appellee, vs. FREDRICK HALL, Defendant-Appellant.
APPEAL NO. C-100097
TRIAL NO. B-9807452
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
May 27, 2011
2011-Ohio-2527
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Roger W. Kirk, for Defendant-Appellant.
Please note: This case hаs been removed from the accelerated calendar.
Per Curiam.
{¶1} Defendant-appellant Fredrick Hall shot Johann Hart and Kevin Davis from a moving vehicle on October 17, 1998. With respеct to each victim, Hall was indicted on two counts of felonious assault, in violation of
{¶2} Hall‘s first trial ended in a hung jury, and the court declared a mistrial. After a second trial, a jury found Hall guilty of all counts and specifications except for the count charging Hall with the attempted murder of Davis.
{¶3} At an August 1999 sentencing hearing, the trial court merged some of the counts and some of the firеarm specifications within each count and stated that it was imposing an aggregate prison term of “39 years and five months.” The trial court failed to provide Hall with the proper postrelease-control notifications at the sentencing hearing or in the sentencing entry.
{¶4} Hall appealed his convictions and sentences, arguing in part that the trial court had erred by failing to merge his attempted-murder and felonious-assault convictions because they involved allied offenses of similar import.4 This court affirmed
{¶5} In July 2009, the trial court ordered that Hall, who was still serving his prison term, be returned to the court for resentencing due to the trial court‘s failure to give Hall the proper postrelease-control notification. At the “de novo” sentencing hearing, the trial court imposed the same sentences, corrected a mistake in the original sentencing entry, and notified Hall of his postrelease-control obligations orally and in the journal entry. The trial court also indicated that it was modifying the original entry “nunc pro tunc.” Hall now appeals from the sentence imposed by the trial court at the second sentencing hearing.
{¶6} In his first assignment of error, Hall argues that the attempted murder and the felonious assaults were allied offenses of similar import, committed neither separately nor with a separate animus, and therefore that the offenses should have merged intо one conviction and sentence. In his second assignment of error, he argues that the felonious assaults against the same victim were allied offenses of similar import and that the trial court failed to “merge” these convictions, even though the court imposed a sentence only for his violations of
{¶7} Before we address these assignments of error, we must first dеtermine the proper scope of the resentencing hearing. In conducting a de novo resentencing hearing, the trial court presumably acted in conformity with the Ohio Suprеme Court‘s decision in State v. Singleton,6 which required the trial court to hold a de novo sentencing hearing to
{¶8} But during the pendency of this appeal, the Ohio Supreme Court released its decision in State v. Fischer,9 which limited the Bezak remedy adopted by the Singleton court. The Fischer court reaffirmed the part of Bezak holding that a sentence that fails to include a statutorily mandated term of postrelease control is void.10 But the court clarified that when a trial court does not properly impose postrelease control as part of a defendant‘s sentence, “that part of the sentence * * * is void and must be set aside,”11 and that “only the offending portion of the sentence is subject to review and correction.”12 Thus, “[t]he scope of an appeal from а resentencing hearing in which a mandatory term of postrelease control is imposed is limited to issues arising at the sentencing hearing.”13
{¶9} The Fischer court explained that the remedy announced in Bezak needed to be modified because the rеmedy failed to consider, consistent with the court‘s decision in State v. Saxon,14 that the non-void portion of a sentence remains valid under principles of res judicata.15 To this end, the court held, in paragraph three of the syllabus, that res
{¶10} In addition to modifying the remedy in Bezak, the Fischer court applied that remedy to the case before it, which did not involve a resentencing pursuant to a remand, but instead involved a resentencing ordered upon the defendant‘s motion. And the court held that Fischer‘s first appeal was not a nullity, despite the defect in his original sеntence with respect to postrelease control.16 The Fischer court ultimately affirmed the appellate court‘s judgment.17
{¶11} In this case, as in Fischer, the only issues arising at the resentencing, and thus subject to review, were those encompassing the postreleasе-control notification. The trial court‘s failure to notify Hall of postrelease control at his August 1999 sentencing hearing had rendered that part of Hall‘s sentences void. The trial сourt‘s authority was limited under
{¶12} While the issue of postrelease control properly arose at the resentencing hearing and is properly before us for review, the doctrinе of res judicata “still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence.”18 The allied-offenses issues that Hall now raises could have been raised in his original direct appeal and some in fact were raised and rejected in that appeal. Thus, res judicata bars consideration of these issues in this appeal.19 Accordingly, we overrule the first and second assignments of error.
{¶13} In his final assignment of error, Hall challenges other nonpostrеlease-control aspects of his sentence. He contends that the maximum and consecutive sentences imposed by the court at the resentencing were excеssive and were not in compliance with
{¶14} Hall also argues that at the resentencing hearing the trial court erroneously increased his aggregate sentence of incarceration to 39 years аnd five months. In support, he cites the trial court‘s statement at the 2010 resentencing that it was reimposing the original sentence of “37 years” and this court‘s pronouncement in Hall‘s direct appeal that Hall had been sentenced to “34 years and five months.”
{¶15} We do not agree with Hall that the trial court increased his aggregate sentence in 2010. Rather, the trial cоurt misspoke at the 2010 sentencing hearing, and this court miscalculated the length of Hall‘s sentence in the direct appeal.
{¶16} While the trial court did correct language in the 1999 entry tо reflect that the term imposed for the firearm specification in count six would be consecutive to the term imposed for the firearm specification in count three, the court was permitted to do so by nunc pro tunc entry.20 The correction reflected the actual sentence the court had imposed at the 1999 sentencing hearing. Thus, the trial сourt‘s use of the “nunc pro tunc” language in the 2010 entry was appropriate.
{¶17} Accordingly, we overrule the third assignment of error.
{¶18} Therefore, the judgment of the trial court is affirmed.
CUNNINGHAM, P.J., HENDON and DINKELACKER, JJ.
Please Note:
The сourt has recorded its own entry on the date of the release of this decision.