[Cite as State v. McPherson, 2011-Ohio-1020.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
CARY L. MCPHERSON, II : Case No. 10-CA-99
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 02CR025
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 7, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TRACY F. VAN WINKLE WILLIAM T. CRAMER
20 South Second Street 470 Olde Worthington Road
Fourth Floor Suite 200
Newark, OH 43055 Westerville, OH 43082
Licking County, Case No. 10-CA-99 2
Farmer, J.
{¶1} On January 18, 2002, the Licking County Grand Jury indicted appellant on
one count of gross sexual imposition in violation of R.C. 2907.05, one count of
importuning in violation of R.C. 2907.07, one count of attempted rape in violation of R.C.
2907.02 and R.C. 2923.02, one count of disseminating matter harmful to juveniles in
violation of R.C. 2907.31, and one count of rape in violation of R.C. 2907.02.
{¶2} On April 15, 2002, appellant pled guilty to the gross sexual imposition
count, and entered no contest Alford pleas to the remaining counts. The trial court
found appellant guilty of the additional counts. By judgment entry filed April 16, 2002,
the trial court sentenced appellant to an aggregate term of fifteen years in prison.
{¶3} On February 25, 2010, appellant filed a motion for resentencing, claiming
his original sentence was void because it failed to set forth mandatory postrelease
control time. A hearing was held on August 16, 2010. By nunc pro tunc judgment entry
filed same date, the trial court resentenced appellant to an aggregate term of fifteen
years in prison, and imposed five years of postrelease control.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED BY FAILING TO HOLD A DE NOVO
RESENTENCING AS REQUIRED BY STATE V. BEZAK, 114 OHIO ST.3D 94, 2007-
OHIO-3250, 868 N.E.2D 961."
Licking County, Case No. 10-CA-99 3
I
{¶6} Appellant claims the trial court erred in failing to hold a de novo
resentencing hearing. We disagree.
{¶7} 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:
{¶8} "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."
{¶9} In this case, 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. However, in State v. Fischer, --- Ohio St.3d ----, 2010-
Ohio-6238, syllabus, the Supreme Court of Ohio limited the nature of the de novo
hearing:
{¶10} "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.
{¶11} "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.)
{¶12} "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.
Licking County, Case No. 10-CA-99 4
{¶13} "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."
{¶14} As stated by the Fischer court in paragraph two of the syllabus, the new
sentencing hearing is limited to the proper imposition of postrelease control. Upon
review, we find the trial court sub judice properly notified appellant of the mandatory five
year postrelease control requirement under R.C. 2967.28(B). T. at 18; Nunc Pro Tunc
Judgment Entry filed August 16, 2010.
{¶15} The sole assignment of error is denied.
{¶16} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Delaney, J. concur.
s/ Sheila G. Farmer__________________
_s/ William B. Hoffman_______________
_s/ Patricia A. Delaney_______________
JUDGES
SGF/sg 224
Licking County, Case No. 10-CA-99 5
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
CARY L. MCPHERSON, II :
:
Defendant-Appellant : CASE NO. 10-CA-99
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to
appellant.
s/ Sheila G. Farmer__________________
_s/ William B. Hoffman_______________
_s/ Patricia A. Delaney_______________
JUDGES