[Cite as State v. Andrews, 2011-Ohio-2462.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO, CASE NO. 1-10-78
PLAINTIFF-APPELLEE,
v.
SHAITON L. ANDREWS, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2004 0537
Judgment Affirmed
Date of Decision: May 23, 2011
APPEARANCES:
Shaiton L. Andrews, Appellant
Christina L. Steffan for Appellee
Case No. 1-10-78
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 follow, 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 R.C. 2911.01(A)(1), felonies
of the first degree. Each count of the indictment also contained a firearm
specification pursuant to R.C. 2941.145(A).
{¶3} On January 24, 2005, Andrews appeared in court for arraignment and
entered 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 trial 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 defense
counsel, a hearing was held on Andrews’ request to represent himself. Again,
Andrews repeated his desire to go forward pro se in the case. The trial court then
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held a lengthy dialogue with Andrews, advising him of the potential problems of
self-representation. Nevertheless, based on Andrews’ repeated insistence on
representing himself, the trial court permitted Andrews to go forward pro se, on
the condition that Andrews’ defense counsel stay on the case as “shadow counsel”
to assist Andrews.
{¶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 sentencing
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 consecutively, 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 instructions 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.
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{¶9} On November 17, 2010, a resentencing hearing was held, at which
time, the trial court resentenced 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 again ordered to run consecutively, for an
aggregate sentence of twenty-six (26) years in prison. In addition, the trial court
advised Andrews that he was subject to five (5) years of mandatory postrelease
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 trial court
abused its discretion in sentencing him to twenty-six (26) years in prison on two
counts of aggravated robbery, each with a firearm 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 factors and failed to consider the relevant sentencing
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Case No. 1-10-78
factors. Moreover, Andrews claims that twenty-six (26) years is excessive for a
robbery charge. Finally, Andrews asserts that consecutive sentences are expressly
forbidden under R.C. 5145.01.
{¶12} However, on December 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] sentence that does not include the statutorily mandated term of
postrelease control is void, is not precluded from appellate review by principles of
res judicata and may be reviewed at any time, on direct appeal or by collateral
attack.” Id. at paragraph one of the syllabus. However, “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 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 of the sentence is subject to review and correction.”
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Fischer, 2010-Ohio-6238, at ¶27. Furthermore, the doctrine of res judicata still
applies to other aspects of a defendant’s case, including specifically “the lawful
elements of the ensuing sentence.” Id. at paragraph three of the syllabus.
{¶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
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