[Cite as State v. Myers, 2012-Ohio-660.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 11-CA-7
CRISTEN L. MYERS, SR. :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court of
Common Pleas Case No. 00-CR-6996
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: February 15, 2012
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOSEPH A. FLAUTT STEVEN P. SCHNITTKE
Prosecuting Attorney Schnittke and Smith
111 North High Street 114 South High Street
New Lexington, Ohio 43764 New Lexington, Ohio 43764
[Cite as State v. Myers, 2012-Ohio-660.]
Delaney, J.
{¶1} Defendant-Appellant Cristen L. Myers appeals the decision of the Perry
County Court of Common Pleas following a resentencing hearing to correct the
imposition of postrelease control.
{¶2} In 2001, Appellant was convicted by a jury for one count of attempted
murder, one count of aggravated burglary, one count of felonious assault and one count
of violating a protection order. By judgment entry of sentence filed March 13, 2001, the
trial court sentenced appellant to an aggregate term of twenty years in prison. By
judgment entry of resentence filed July 13, 2001, Appellant was resentenced in order to
include the findings necessary to impose consecutive sentences. The entry stated that
the trial court notified Appellant that postrelease control up to three years was
mandatory in this case. Appellant’s convictions and sentences were affirmed on
appeal. State v. Myers, 5th Dist. No. 01-CA-5, 2002-Ohio 253.
{¶3} On May 22, 2009, Appellant filed a motion to void the unexpired term of
incarceration and for resentencing to correct the error in the July 13, 2001 entry he was
subject to only three years of postrelease control instead of the mandatory five years.
By entry filed June 24, 2009, the trial court denied Appellant’s request to void the
unexpired term of incarceration. By nunc pro tunc judgment entry of resentence filed
July 10, 2009, the trial court corrected the error.
{¶4} Appellant appealed the nunc pro tunc judgment entry. In State v. Myers, 5
th Dist. No. 10-CA-4, 2010-Ohio-5979, (“Myers II”) this Court found the trial court erred
in filing a nunc pro tunc entry and resentencing Appellant without a hearing. The matter
Perry County, Case No. 11-CA-7 3
was remanded to the trial court for a de novo hearing, citing State v. Bezak, 114 Ohio
St.3d 94, 2007-Ohio-3250 and State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085.
{¶5} A resentencing hearing on the matter of postrelease control was held on
March 3, 2011. By entry filed March 29, 2011, the trial court notified Appellant that
postrelease control of five years was mandatory in this case, as well as the
consequences of violating condition of postrelease control imposed by the Parole
Board.
{¶6} Appellant timely appealed the resentencing entry.
{¶7} Appellant raises seven Assignments of Error:
{¶8} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING
DEFENDANT/APPELLANT TO CONSECUTIVE SENTENCES FOR THE
CONVICTIONS OF ATTEMPTED MURDER (ORC 2903.02(A) AND FELONIOUS
ASSULT (ORC 2903.11(A) AS SAID CRIMES ARE ALLIED OFFENSES OF SIMILAR
IMPORT.
{¶9} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING
DEFENDANT/APPELLANT TO CONSECUTIVE SENTENCES FOR THE
CONVICTIONS OF FELONIOUS ASSAULT (ORC 2903.11(A)(1) AND ATTEMPTED
MURDER (ORC 2903.02(A)(1) AS SAID CRIMES ARE ALLIED OFFENSES OF
SIMILAR IMPORT.
{¶10} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
DISREGARDING THE MANDATE OF THE FIFTH DISTRICT COURT OF APPEALS
WHICH VACATED DEFENDANT/APPELLANT’S SENTENCE WITH REMAND FOR A
DE NOVO RE-SENTENCING HEARING, CREATING AN INJUSTICE.
Perry County, Case No. 11-CA-7 4
{¶11} “IV. THE TRIAL COURT WAS IN ERROR WHEN IT APPLIED THE
PRINCIPLE OF RES JUDICATA TO BAR THE APPLICATION OF THE NEW
SUBSTANTIVE INTERPRETATION ANNOUNCED IN STATE V JOHNSON, 124 OHIO
ST. 3D 153.
{¶12} “V. THE MITTIMUS ISSUED BY THE COMMON PLEAS COURT OF
PERRY COUNTY, OHIO FOLLOWING THE MARCH 3, 2011 RESENTENCING
HEARING IS VOID AND INSUFFICIENT TO WARRANT THE DETENTION OF
CRISTEN L. MYERS, SR.
{¶13} “VI. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT/APPELLANT BY EXCEEDING ITS JURISDICTIONAL AUTHORITY
WHEN IMPOSED CONSECUTIVE SENTENCES IN THE ABSENCE OF STATUTORY
AUTHORITY.
{¶14} “VII. THE CONSECUTIVE SENTENCE IMPOSED BY TRIAL COURT IS
VIOLATIVE OF THE DEFENDANT/APPELLANT’S LIBERTY INTEREST PROTECTED
BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
{¶15} At the outset, it must be noted that shortly after our opinion was issued in
Myers II, the Ohio Supreme Court rendered its decision in State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238. In Fischer, the Court clarified that a new sentencing hearing
to which an offender is entitled under Bezak, supra, is limited to the proper imposition of
postrelease control. Id. at syllabus two. The Court also stated that res judicata applies
to all other aspects of the merits of the conviction, including the determination of guilt
and the lawful elements of the ensuing sentence. Id. at syllabus three.
Perry County, Case No. 11-CA-7 5
{¶16} The record in this case demonstrates that the trial court properly followed
the law established by Fischer and limited Appellant’s rehearing to the imposition of
postrelease control, rather than conducting a de novo hearing as instructed by this
Court on remand.
{¶17} On appeal, Appellant raises matter pertaining to the merger of allied
offenses, the propriety of consecutive sentences and validity of the underlying prison
sentence. The trial court did not address these issues at rehearing, nor are they
address in the entry filed March 29, 2011.
{¶18} In addition, Fischer further instructs that “[t]he scope of an appeal from a
resentencing hearing in which a mandatory term of postrelease control is imposed is
limited to issues arising at the resentencing hearing.
{¶19} Accordingly, Appellant’s assignments of error are overruled in total.
{¶20} The judgment of the Perry County Court of Common Pleas is affirmed.
By: Delaney, J.
Gwin, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
[Cite as State v. Myers, 2012-Ohio-660.]
IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
CRISTEN L. MYERS, SR. :
:
Defendant-Appellant : Case No. 11-CA-7
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Perry County Court of Common Pleas is affirmed. Costs assessed to
Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE