STATE OF OHIO v. LELAND WOODS
No. 96487
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 10, 2011
2011-Ohio-5825
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-429282
BEFORE: Keough, J., Blackmon, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: November 10, 2011
ATTORNEY FOR APPELLANT
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor James M. Price Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Leland Woods, appeals from the trial court‘s judgment entry issued after a resentencing hearing held in order to properly impose a mandatory five-year term of postrelease control. Finding no merit to the appeal, we affirm.
I.
{¶ 2} Woods was convicted in 2003 after a jury trial of one count of rape, eight counts of gross sexual imposition, and one count of kidnapping a child
{¶ 3} Woods appealed his conviction and sentence, which this court affirmed in State v. Woods, Cuyahoga App. No. 82789, 2004-Ohio-2700. The Ohio Supreme Court subsequently denied Woods‘s motion to file a delayed appeal. State v. Woods, 104 Ohio St.3d 1407, 2004-Ohio-6364, 818 N.E.2d 709.
{¶ 4} In September 2010, Woods filed a motion to vacate his sentence, contending that the sentence was void because the trial court had not imposed postrelease control. The trial court subsequently held a resentencing hearing at which it reimposed the original sentence and, recognizing that the sentences for gross sexual imposition and kidnapping had expired, imposed a mandatory five-year term of postrelease control on the rape charge only. Woods now appeals from this judgment entry.
II.
A. Life Imprisonment for Rape
Woods‘s argument is barred by the doctrine of res judicata, which precludes the further litigation in a criminal case of issues that were or could have been raised previously in a direct appeal. State v. Leek (June 21, 2000), Cuyahoga App. No. 74338, citing State v. Perry (1967), 10 Ohio St.2d 175, 180, 226 N.E.2d 104.
{¶ 6} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court clarified that when a judge fails to impose statutorily-mandated postrelease control as part of a defendant‘s sentence, it is only that part of the sentence that is void and subject to review and correction. Id. at ¶ 26-27. The Fischer court found that “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.” Id. at ¶ 40.
{¶ 7} In 2003, Woods brought a direct appeal of his conviction and original sentence, but did not raise any issue regarding the sentence of life in prison for rape. Accordingly, applying Fischer, we conclude that this assignment of error is barred by the doctrine of res judicata.
{¶ 9} The jury found that Woods, as indicted, engaged in sexual conduct with a child who was under the age of 13 by purposely compelling the victim to submit by force or threat of force. Thus, the trial court properly sentenced him to life in prison under former
{¶ 10} The first assignment of error is overruled.
B. Postrelease Control
{¶ 11} In his second assignment of error, Woods argues that the trial court improperly imposed postrelease control upon resentencing because the State did not file a cross-appeal in his original appeal asserting that the sentence was improper. Woods contends that in the absence of a
{¶ 12} Woods moved for resentencing, and specifically argued in his motions that resentencing was required because the trial court had not imposed postrelease control at the original sentencing. He cannot now complain that the trial court conducted a resentencing and imposed postrelease control upon the motions he filed. Further, the Ohio Supreme Court has made clear that trial courts are to correct sentences that do not include statutorily-mandated postrelease control. See, e.g., Fischer, supra.
{¶ 13} The second assignment of error is therefore overruled.
C. Delay in Resentencing
{¶ 14}
{¶ 15} In State v. Hawkins, Cuyahoga App. No. 94294, 2011-Ohio-74, this court adopted the reasoning of the Ninth District in State v. Culgan, Medina App. No. 09CA0060-M, 2010-Ohio-2992, and held that
{¶ 16} Here, the trial court imposed the original sentence without delay. It was then required to resentence Woods because the original sentence omitted a required term of postrelease control. The resentencing involved correcting a void part of the sentence; thus, there was no violation of
{¶ 17} The third assignment of error is therefore overruled.
D. Kidnapping
{¶ 18} Woods was indicted on nine carbon-copy counts of kidnapping. During trial, the court dismissed eight of the kidnapping counts at the close of the State‘s case; the jury then found him guilty of the remaining count. In his fourth assignment of error, Woods argues that the trial court should have dismissed the remaining kidnapping count to protect him from double jeopardy. He contends that there was no differentiation between the counts and, therefore, a finding that eight of the nine counts were not proven indicates that the remaining count should have also been dismissed.
{¶ 20} The fourth assignment of error is overruled.
E. Merger of Rape and Kidnapping Counts
{¶ 21} Woods next argues that the trial court erred in not merging his convictions for rape and kidnapping because the offenses are allied. But, as this court found in State v. Padgett, Cuyahoga App. No. 95065, 2011-Ohio-1927, the issue of merger of allied offenses is res judicata on an appeal from a resentencing. See, also, State v. Poole, Cuyahoga App. No. 94759, 2011-Ohio-716 (“[T]he time to challenge a conviction based on allied offenses is through a direct appeal — not at a resentencing hearing.“) The proper avenue for Woods‘s merger challenge would have been in his direct appeal. He did not raise the merger issue in that appeal and, therefore, it is now barred.
{¶ 22} The fifth assignment of error is overruled.
F. Allocution
{¶ 23} In his sixth assignment of error, Woods contends that the trial court erred in resentencing him without affording him his right of allocution.
{¶ 24} Under
{¶ 25} Here, Woods is unable to demonstrate that he was prejudiced by the trial court‘s failure to provide another opportunity for allocution at his resentencing. The same trial judge who originally sentenced Woods, during a hearing at which he was provided an opportunity for allocution, conducted the resentencing. The resentencing was solely for the purpose of imposing postrelease control; Woods‘s original sentence remained unchanged, and the judge was statutorily required to impose five years of postrelease control. The outcome was inevitable. Thus, the trial court‘s failure to provide Woods
{¶ 26} The sixth assignment of error is overruled.
G. Court Costs
{¶ 27} Last, in his seventh assignment of error, Woods contends that the trial court erred in imposing court costs in the sentencing journal entry without advising him at resentencing that it was imposing costs.
{¶ 28} Once again, Woods‘s argument is barred by the doctrine of res judicata. The record reflects that costs were imposed at the original sentencing.1 Any alleged error regarding the imposition of costs could have been raised by Woods on direct appeal; he did not do so and, therefore, the issue is res judicata. Fischer, supra.
{¶ 29} The seventh assignment of error is overruled.
Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA A. BLACKMON, P.J., CONCURS;
COLLEEN CONWAY COONEY, J., CONCURS IN JUDGMENT ONLY