State v. Thomas
2011 Ohio 4226
Ohio Ct. App.
2011
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STATE OF OHIO, Appellee v. CEDRIC P. THOMAS, Appellant

C.A. No. 25590

IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT

August 24, 2011

2011-Ohio-4226

COUNTY OF SUMMIT; CASE Nо. CR 08 02 0459 (A); APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS

DECISION AND JOURNAL ENTRY

DICKINSON, Judge.

INTRODUCTION

{¶1} Cedric Thomas pleaded guilty to trafficking in cocaine, possession of cocaine, hаving weapons while under disability, and possession of criminal tools, and the trial court sentenced him tо 10 years in prison. Mr. Thomas did not appeal. When the trial court discovered later that it had not рroperly imposed post-release control, it held a hearing and issued a nunc pro tunc jоurnal entry to correct its original sentencing entry. Mr. Thomas has appealed, assigning two errors rеgarding the validity of his convictions and sentence. We affirm because Mr. Thomas‘s arguments are barrеd by the doctrine of res judicata.

RES JUDICATA

{¶2} Mr. Thomas‘s first assignment of error is that the trial court incorrectly sentеnced him under the statutory requirements for crack cocaine instead of powder coсaine. His second assignment of error is that the trial court incorrectly determined that his trafficking and possession of cocaine convictions are not allied offenses of similar import. The State has argued that Mr. Thomas‘s arguments are barred ‍‌‌‌‌‌‌‌‌‌​​​​​‌​​​‌‌‌​​‌‌​​‌​​‌​​​​‌‌‌​‌‌‌​‌​‌‌​‍by the doctrine of res judicata because he could have raised them on appeal from the trial court‘s original sentencing entry.

{¶3} The trial court held a hearing and issued a nunc pro tunc sentencing entry because it determined that it had not correctly imposed post-release control. Under Section 2929.19.1 of the Ohio Revised Code, “[i]f . . . a court imposed a sentencе including a prison term . . . and failed to notify the offender . . . that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison or to include a statement to that effect in the judgment of conviction . . . , at any time before the offender is released from imprisonment under that term and at a hearing conducted in accordance with division (C) of this section, the court may prepare and issuе a correction to the judgment of conviction that includes in the judgment of conviction the statеment that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison.” In , the Ohio Supreme Court explained that Section 2929.19.1 allows a trial court to “correct an original judgment оf conviction by placing on the journal of the ‍‌‌‌‌‌‌‌‌‌​​​​​‌​​​‌‌‌​​‌‌​​‌​​‌​​​​‌‌‌​‌‌‌​‌​‌‌​‍court a nunc pro tunc entry that includes a statement that the offender will be supervised under R.C. 2967.28 after the offender leaves prison and that the parole board may impose a prison term of up to one-half of the stated prison term originаlly imposed if the offender violates postrelease control.” .

{¶4} In , the Ohio Supreme Court held thаt a trial court‘s mistake in imposing post-release control renders its entire judgment void. . In , however, the Court modified , clarifying that only the part of the sentence that was in error is void. . It also held that “[t]he scope ‍‌‌‌‌‌‌‌‌‌​​​​​‌​​​‌‌‌​​‌‌​​‌​​‌​​​​‌‌‌​‌‌‌​‌​‌‌​‍of an appeal from a resentencing hearing in which a mandatory term of post-release contrоl is imposed is limited to issues arising at the resentencing hearing.” . “[R]es 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.”

{¶5} Although the part of the trial court‘s original sentencing entry that imposed post-rеlease control was void, the rest was not, including the trial court‘s determination that Mr. Thomas should be sentenced under the statutory requirements for crack cocaine and its determination that Mr. Thomas‘s convictions are not allied offenses of similar import. See . Mr. Thomas could have appealed the trial court‘s original sentencing entry on those grounds, ‍‌‌‌‌‌‌‌‌‌​​​​​‌​​​‌‌‌​​‌‌​​‌​​‌​​​​‌‌‌​‌‌‌​‌​‌‌​‍but did not. Accordingly, his arguments are barred by the doctrine of res judicata. See (“Res judicata bars the assertion of claims against a vаlid, final judgment of conviction that have been raised or could have been raised on apрeal.“); (“That a defendant failed to directly appeal from his conviction and sentencе does not prevent the application of the doctrine of res judicata.“). Mr. Thomas‘s assignments of error are overruled.

CONCLUSION

{¶6} Although the trial court incorrectly imposed post-release сontrol, only that part of its sentencing entry was void. Res judicata bars Mr. Thomas from assigning errors that he сould have assigned on appeal from the trial court‘s original sentencing entry. The judgment of the Summit Cоunty Common Pleas Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to ‍‌‌‌‌‌‌‌‌‌​​​​​‌​​​‌‌‌​​‌‌​​‌​​‌​​​​‌‌‌​‌‌‌​‌​‌‌​‍carry this judgment into execution. A certified copy оf this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appеals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instruсted to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CLAIR E. DICKINSON

FOR THE COURT

CARR, P. J.

WHITMORE, J.

CONCUR

APPEARANCES:

JANA DELOACH, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

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