[Cite as State v. Petty, 2011-Ohio-2985.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
BRODERICK PETTY : Case No. 10CA9
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 05CR331D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 15, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL J. BENOIT RANDALL E. FRY
38 South Park Street 10 West Newlon Place
Second Floor Mansfield, OH 44902
Mansfield, OH 44902
Richland County, Case No. 10CA9 2
Farmer, J.
{¶1} On December 15, 2009, the trial court resentenced appellant, Broderick
Petty, pursuant to a remand citing State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250.
See, State v. Petty (2009), 121 Ohio St.3d 607. The trial court sentenced appellant to
the same aggregate original sentence, and ordered that appellant would not serve any
post-release control time.
{¶2} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶3} "THE COURT ERRED TO THE DEFENDANT-APPELLANT'S
PREJUDICE BY FAILING TO CONSIDER THE FACTORS OF ORC 2929.11 AND
2929.12 IN RE-SENTENCING THE DEFENDANT."
II
{¶4} "THE TRIAL COURT WAS DEPRIVED OF JURISDICTION TO
SENTENCE THE DEFENDANT-APPELLANT AS THERE WAS AN UNJUSTIFIED AND
SUBSTANTIAL DELAY BETWEEN THE FINDING OF GUILT AND THE
SENTENCING."
III
{¶5} "THE TRIAL COURT ERRED WHEN IN THE RE-SENTENCING ENTRY
OF JUNE 29, 2009, IT RE-SENTENCED THE DEFENDANT-APPELLANT TO ONE
YEAR OF PRISON FOR COUNT I OF POSSESSION OF CRACK COCAINE."
Richland County, Case No. 10CA9 3
I, II, III
{¶6} Appellant claims the trial court erred in failing to consider certain statutory
factors in resentencing him, there was an unjustified and substantial delay in sentencing
him, and the trial court erred in resentencing him to a sentence he already served. We
disagree.
{¶7} In this case, appellant was given a de novo hearing for resentencing under
Bezak, supra. In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, syllabus, the
Supreme Court of Ohio limited the nature of the de novo hearing as follows:
{¶8} "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.
{¶9} "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.)
{¶10} "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.
{¶11} "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."
{¶12} 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 did not impose any post-release control time and
Richland County, Case No. 10CA9 4
properly notified appellant of such. June 29, 2009 T. at 9; 2nd Amended Sentencing
Entry filed December 15, 2009. The one year sentence on the possession count was
merely re-imposed, regardless of whether appellant already served the time.
{¶13} As for the delay in filing the sentencing entry, the new sentence was
exactly the same as the original, but for the lack of any post-release control time.
Therefore, appellant has suffered no prejudice.
{¶14} Assignments of Error I, II, and III are denied.
{¶15} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby affirmed.
By Farmer, J.
Delaney, P.J. and
Wise, J. concur.
_s/ Sheila G. Farmer__________________
_s/ Patricia A. Delaney________________
_s/ John W. Wise___________________
JUDGES
SGF/sg 601
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
BRODERICK PETTY :
:
Defendant-Appellant : CASE NO. 10CA9
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to
appellant.
s/ Sheila G. Farmer__________________
_s/ Patricia A. Delaney________________
_s/ John W. Wise___________________
JUDGES