[Cite as State v. Mitchell, 2011-Ohio-1958.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case Nos. 10-CA-61; 10-CA-62
& 10-CA-63
MARK A. MITCHELL :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas Case Nos. 97-CR-I-12-
0473; 98-CR-I-05-0161; 98-CR-I-10-0347
JUDGMENT: AFFIRMED IN PART; REVERSED IN
PART AND ORIGINAL CLASSIFICATION
REINSTATED
DATE OF JUDGMENT ENTRY: April 20, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CAROL O’BRIEN JOHN R. CORNELY 0072393
Delaware County Prosecuting Attorney 21 Middle St.
140 N. Sandusky St. P.O.Box 248
Delaware, Ohio 43015 Galena, Ohio 43021-2718
MARIANNE HEMMETER 0068896
Assistant Prosecuting Attorney
(Counsel of Record)
[Cite as State v. Mitchell, 2011-Ohio-1958.]
Delaney, J.
{¶1} Defendant-Appellant Mark A. Mitchell appeals the judgment of the
Delaware County Court of Common Pleas, who, at a resentencing hearing on July 19,
2010, imposed a Tier III sexual offender reclassification on him, informed him of
mandatory post release control, and affirmed his original sentence that was imposed in
1998. The State of Ohio is the Plaintiff-Appellee.
{¶2} On December 8, 1997, Appellant was indicted in Delaware County in
Case Number 97-CR-I-12-0473. On May 22, 1998, Appellant entered a guilty plea and
was convicted of one count of Gross Sexual Imposition, a felony of the third degree, in
violation of R.C. 2907.05(A)(4).
{¶3} On May 29, 1998, Appellant was indicted on case number 98-CR-I-05-
0161. He pled guilty to one count of rape, in violation of R.C. 2907.02, a felony of the
first degree.
{¶4} On October 22, 1998, the Delaware County Prosecutor filed a Bill of
Information in case number 98-CR-I-10-347, charging Appellant with two counts of
sexual battery in violation of R.C. 2907.03(A)(9). On October 23, 1998, Appellant
waived his right to be prosecuted by indictment and entered a guilty plea to both counts
as set forth in the Bill of Information.
{¶5} On October 23, 1998, the trial court held a sex offender classification
hearing and found Appellant to be a sexual predator. The court also held a sentencing
hearing and imposed four years imprisonment in case number 97-CR-I-12-0473 to run
consecutive to the sentences imposed in case numbers 98-CR-I-05-0161 of eight years
and 98-CR-I-10-0347, also an eight year sentence.
Delaware County, Case Nos. 10-CA-61, 10-CA-62, & 10-CA-63 3
{¶6} On June 18, 2010, the trial court scheduled a resentencing hearing and
ordered Appellant to be transported for the hearing. The resentencing hearing was held
because the trial court had originally omitted to advise Appellant that he was subject to
five years of mandatory post-release control.
{¶7} On July 19, 2010, the trial court held the hearing and imposed the same
original sentence. The trial court also reclassified Appellant as a Tier III sex offender
under the Adam Walsh Act pursuant to R.C. 2950.01 et seq.
{¶8} Appellant now appeals the resentencing, raising two Assignments of Error:
{¶9} “I. APPELLANT’S SEXUAL OFFENDER CLASSIFICATION UNDER
THE TIER SYSTEM WAS UNCONSTITUTIONAL AS DETERMINED BY THE OHIO
SUPREME COURT IN STATE V. BODYKE (2010), 128 Ohio St.3d 266, 2010-Ohio-
2424.
{¶10} “II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
CONSECUTIVE SENTENCES.”
I.
{¶1} In his first assignment of error, Appellant argues that the trial court erred
by reclassifying Appellant as a Tier III sex offender during his resentencing on July 19,
2010. Pursuant to State v. Bodyke, 128 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d
753, and State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio- 6238, 942 N.E.2d 332,
Appellant is correct. Appellee concedes that Appellant’s Tier III sex offender
designation needs to be vacated.
Delaware County, Case Nos. 10-CA-61, 10-CA-62, & 10-CA-63 4
{¶2} Appellant’s first assignment of error is sustained and that part of the entry
from which this appeal is taken that reclassified Appellant as a Trier III sex offender is
reversed, and his original status as a sexual predator is reinstated.
II.
{¶3} In Appellant’s second assignment of error, he argues that the trial court
erred in sentencing him to consecutive sentences in 1998.
{¶4} Appellant’s claims are without merit. The Ohio Supreme Court, in State v.
Fischer, supra, stated that “(1) when a judge fails to impose statutorily mandated post-
release control as part of a defendant's sentence, that part of the sentence that was
void must be set aside, and,
{¶5} “(2) defendant's remaining claims, which did not involve a void sentence
or judgment, were barred by res judicata; overruling State v. Bezak, 114 Ohio St.3d 94,
2007-Ohio-3250, 868 N.E.2d 961.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-
6238, 942 N.E.2d 332.
{¶6} Accordingly, Appellant is precluded from contesting his consecutive
sentences that were imposed in 1998.
{¶7} Appellant’s second assignment of error is overruled.
Delaware County, Case Nos. 10-CA-61, 10-CA-62, & 10-CA-63 5
{¶8} For the foregoing reasons, the judgment of the Delaware County Court of
Common Pleas is reversed with respect to Appellant’s first assignment of error and
Appellant’s original sexual predator classification is reinstated. The second assignment
of error is overruled.
By: Delaney, J.
Farmer, P.J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JULIE A. EDWARDS
[Cite as State v. Mitchell, 2011-Ohio-1958.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
MARK A. MITCHELL :
:
Defendant-Appellant : Case No. 10-CA-61
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Delaware County Court of Common Pleas is affirmed in part and
reversed in part as to Appellant’s reclassification as a Tier III sex offender and his
original sexual predator classification is reinstated. Costs assessed equally to Appellant
and Appellee.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JULIE A. EDWARDS
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
MARK A. MITCHELL :
:
Defendant-Appellant : Case No. 10-CA-62
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Delaware County Court of Common Pleas is affirmed in part and
reversed in part as to Appellant’s reclassification as a Tier III sex offender and his
original sexual predator classification is reinstated. Costs assessed equally to Appellant
and Appellee.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JULIE A. EDWARDS
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
MARK A. MITCHELL :
:
Defendant-Appellant : Case No. 10-CA-63
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Delaware County Court of Common Pleas is affirmed in part and
reversed in part as to Appellant’s reclassification as a Tier III sex offender and his
original sexual predator classification is reinstated. Costs assessed equally to Appellant
and Appellee.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JULIE A. EDWARDS