[Cite as State v. Payton, 2011-Ohio-4386.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
DENNIS C. PAYTON : Case No. 2010CA00276
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 2003CR0655
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 29, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO DENNIS C. PAYTON, PRO SE
Prosecuting Attorney Inmate No. 460-700
Stark County, Ohio Mansfield Correctional Institution
P.O. Box 788
By: RONALD MARK CALDWELL Mansfield, OH 44901
110 Central Plaza South
Suite 510
Canton, OH 44702
Stark County, Case No. 2010CA00276 2
Farmer, J.
{¶1} On April 20, 2004, appellant, Dennis Payton, was found guilty of one count
of rape in violation of R.C. 2907.02, one count of kidnapping in violation of R.C.
2905.01, two counts of gross sexual imposition in violation of R.C. 2907.05, and one
count of unlawful sexual conduct with a minor in violation of R.C. 2907.04. By judgment
entry filed December 24, 2003, the trial court sentenced appellant to an aggregate term
of fourteen years and five months in prison and classified him as a sexual predator. His
convictions and sentence were affirmed on appeal. State v. Payton, Stark App. No.
2004CA00019, 2005-Ohio-737.
{¶2} On May 19, 2010, appellant filed a motion for de novo sentencing as his
original sentence did not include a term of postrelease control. A video conferencing
hearing was held on September 3, 2010. By judgment entry filed September 16, 2010,
the trial court resentenced appellant to the fourteen years, five months sentence and
imposed five years of postrelease control.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ERRED IN NOT CONDUCTING A DE NOVO
SENTENCING HEARING TO IMPOSE A VALID SENTENCE ON APPELLANT
INSTEAD OF THE LIMITED VIDEO HEARING JUST TO IMPOSE POST RELEASE
CONTROL VIOLATING APPELLANT'S CONSTITUTIONAL RIGHT TO DUE
PROCESS."
Stark County, Case No. 2010CA00276 3
II
{¶5} "THE TRIAL COURT VIOLATED THE APPELLANT'S RIGHTS
GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, AND
THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AGAINST
DOUBLE JEOPARDY WHEN IT FAILED TO FOLLOW STATUTORILY MANDATED
PROVISIONS OF RC 2941.25(A) REGARDING ALLIED OFFENSES."
III
{¶6} "PLAIN ERROR AND VOID CONVICTION RESULTED WHERE
APPELLANT WAS DEPRIVED OF HIS RIGHT TO GRAND JURY INDICTMENT, TO
DUE PROCESS AND A FAIR TRIAL PURSUANT TO ARTICLE I, SECTION 10 OF
THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION WHERE INDICTMENTS UPON WHICH
APPELLANT WAS TRIED, CONVICTED AND SENTENCED OMITTED ESSENTIAL
ELEMENTS OF OFFENSES SOUGHT TO BE CHARGED."
IV
{¶7} "THE JURY'S VERDICTS WERE INCONSISTENT WITH THE EVIDENCE
PRESENTED IN COURT AND AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE."
V
{¶8} "THE TRIAL COURT ERRED BY CLASSIFYING APPELLANT AS A
SEXUAL PREDATOR WHERE CLEAR AND CONVINCING EVIDENCE DID NOT
SUPPORT THAT CONCLUSION."
Stark County, Case No. 2010CA00276 4
I
{¶9} Appellant claims the trial court erred in imposing postrelease control via a
video conferencing hearing. We disagree.
{¶10} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Supreme
Court of Ohio held the following at paragraph one of the syllabus:
{¶11} "For criminal sentences imposed prior to July 11, 2006, in which a trial
court failed to properly impose postrelease control, trial courts shall conduct a de novo
sentencing hearing in accordance with decisions of the Supreme Court of Ohio."
{¶12} This de novo hearing has been limited by the Supreme Court of Ohio in
State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, which will be discussed infra.
{¶13} In the case sub judice, appellant was sentenced prior to July 11, 2006 and
was not properly informed of postrelease control; therefore, pursuant to Singleton, he
was entitled to a de novo hearing. Video conferencing is an acceptable method of
holding the hearing:
{¶14} "The offender has the right to be physically present at the hearing, except
that, upon the court's own motion or the motion of the offender or the prosecuting
attorney, the court may permit the offender to appear at the hearing by video
conferencing equipment if available and compatible. An appearance by video
conferencing equipment pursuant to this division has the same force and effect as if the
offender were physically present at the hearing." R.C. 2929.191(C) in part (correction to
judgment of conviction; post-release supervision).
{¶15} Assignment of Error I is denied.
Stark County, Case No. 2010CA00276 5
II, III, IV, V
{¶16} Under these assignments, appellant complains of double jeopardy/allied
offenses issues, incomplete indictment, and manifest weight and sufficiency of the
evidence regarding the jury's verdicts. Appellant also claims the trial court erred in
classifying him as a sexual predator.
{¶17} In Fischer, supra, at syllabus, the Supreme Court of Ohio limited the
nature of the de novo hearing as follows:
{¶18} "1. 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.
{¶19} "2. The new sentencing hearing to which an offender is entitled under
State v. Bezak is limited to proper imposition of postrelease control. (State v. Bezak,
114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus, modified.)
{¶20} "3. Although the doctrine of res judicata does not preclude review of a void
sentence, 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.
{¶21} "4. The 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."
{¶22} As stated by the Fischer court in paragraph two of the syllabus, the new
sentencing hearing "is limited to proper imposition of postrelease control." Upon review,
we find the trial court sub judice properly notified appellant of the mandatory five year
Stark County, Case No. 2010CA00276 6
postrelease control requirement under R.C. 2967.28(B). T. at 6-8; Judgment Entry filed
September 16, 2010
{¶23} Pursuant to Fischer, the issues of double jeopardy/allied offenses,
incomplete indictment, manifest weight and sufficiency of the evidence, and sexual
predator classification were not reviewable during this hearing. See, State v. Griffis,
Muskingum App. No. CT2010-57, 2011-Ohio-2955. In addition, all of these alleged
errors were raised or could have been raised on appellant's direct appeal therefore, they
are barred by the doctrine of res judicata. Payton, supra; Fischer, supra; State v.
Ketterer, 126 Ohio St.3d 448, 2010–Ohio–3831; Grava v. Parkman Twp., 73 Ohio St.3d
379, 1995-Ohio-331, syllabus.
{¶24} Assignments of Error II, III, IV, and V are denied.
{¶25} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Hoffman, J. concur.
_s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin____________________
_s/ William B. Hoffman________________
JUDGES
SGF/sg 823
[Cite as State v. Payton, 2011-Ohio-4386.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DENNIS C. PAYTON :
:
Defendant-Appellant : CASE NO. 2010CA00276
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to
appellant.
_s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin____________________
_s/ William B. Hoffman________________
JUDGES
State v. Payton
Combined Opinion