[Cite as State v. Wallace, 2011-Ohio-4186.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 10-MA-94
)
DANA WALLACE, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 05CR573
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503-1426
For Defendant-Appellant Dana Wallace, pro-se
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901-0788
Attorney Rebecca A. Royer
7920 Knauf Rd.
Canfield, Ohio 44406
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
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Hon. Mary DeGenaro
Dated: August 16, 2011
DONOFRIO, J.
{¶1} Defendant-appellant, Dana Wallace, appeals from a Mahoning County
Common Pleas Court judgment resentencing him on his convictions for aggravated
burglary, menacing by stalking, and intimidation of a victim in a criminal case.
{¶2} On June 20, 2005, a Mahoning County Grand Jury indicted appellant
on one count of aggravated burglary, a first-degree felony; one count of intimidation
of a victim or witness in a criminal case, a third-degree felony; and one count of
menacing by stalking, a fourth-degree felony. The case proceeded to a jury trial
where the jury found appellant guilty on all counts. The trial court later sentenced
appellant to non-minimum, consecutive sentences totaling 11 years in prison.
{¶3} Appellant filed an appeal from his convictions and sentence. This court
affirmed his convictions but vacated his sentence and remanded the matter for
resentencing. State v. Wallace, 7th Dist. No. 06-MA-44, 2007-Ohio-6226.
{¶4} The trial court held a resentencing hearing on February 6, 2008. It
once again sentenced appellant to an 11-year sentence consisting of six years for
aggravated burglary, four years for intimidation, and 12 months for menacing by
stalking. The court informed appellant that following his prison term, he would be
subject to a “possible” period of postrelease control of “up to” five years.
{¶5} On December 3, 2009, appellant filed a pro se motion to vacate void
sentence. He asked the court to vacate his sentence and afford him a new
sentencing hearing arguing that the court improperly advised him that his postrelease
control was not mandatory.
{¶6} The trial court granted appellant’s motion and held a new sentencing
hearing on May 5, 2010. It once again imposed the same sentence. It then correctly
informed appellant that his prison term would be followed by a “mandatory” five-year
period of postrelease control.
{¶7} Appellant filed a timely notice of appeal on June 4, 2010.
{¶8} Appellant's counsel has filed a no merit brief and request to withdraw as
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counsel pursuant to State v. Toney (1970), 23 Ohio App.2d 203. In Toney, this court
set out the procedure to be used when appointed counsel finds that an indigent
criminal defendant's appeal is frivolous. The Toney procedure is as follows:
{¶9} “3. Where a court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the indigent's appeal is frivolous and
that there is no assignment of error which could be arguably supported on appeal, he
should so advise the appointing court by brief and request that he be permitted to
withdraw as counsel of record.
{¶10} “4. Court-appointed counsel's conclusions and motion to withdraw as
counsel of record should be transmitted forthwith to the indigent, and the indigent
should be granted time to raise any points that he chooses, pro se.
{¶11} “5. It is the duty of the Court of Appeals to fully examine the
proceedings in the trial court, the brief of appointed counsel, the arguments pro se of
the indigent, and then determine whether or not the appeal is wholly frivolous.
{¶12} “ * * *
{¶13} “7. Where the Court of Appeals determines that an indigent's appeal is
wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of
record should be allowed, and the judgment of the trial court should be affirmed.” Id.
at the syllabus.
{¶14} This court informed appellant that his counsel filed a Toney brief.
Subsequently, appellant filed a pro se brief raising two assignments of error.
{¶15} Appellant’s first assignment of error states:
{¶16} “DID THE TRIAL COURT ERROR WHEN IT IMPROPERLY
CONDUCT[ED] A SENTENCING HEARING PURSUANT TO R.C. 2929.191 AND
NOT CONDUCTING A DENOVO SENTENCING HEARING PURSUANT TO STATE
V. BEZAK, * * *?”
{¶17} Appellant argues that the trial court should have granted him a de novo
sentencing hearing because he was originally sentenced before July 11, 2006. He
contends that the court failed to inform him of his appellate rights.
{¶18} Postrelease control for a first- or second-degree-felony offender who is
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sentenced to a prison term must include a mandatory term of postrelease control to
be imposed by the parole board. R.C. 2967.28(B). When imposing the sentence, the
trial court must notify the offender of the proper term of postrelease control. R.C.
2929.19(B)(3)(c).
{¶19} In State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, at the syllabus,
the Ohio Supreme Court determined that an offender is entitled to a de novo
sentencing hearing in order for the trial court to correct a sentence that omitted the
proper notice of postrelease control.
{¶20} On July 11, 2006, the General Assembly enacted R.C. 2929.191. It
provides a statutory remedy to correct a failure to properly impose postrelease
control. Pursuant to R.C. 2929.19, a trial court may, after conducting a hearing,
correct an original sentencing judgment by entering a nunc pro tunc entry that
includes a statement that the offender will be supervised under R.C. 2967.28 after
the offender leaves prison and that the parole board may impose a prison term of up
to one-half of the stated prison term originally imposed if the offender violates
postrelease control. The hearing pertains only to postrelease control and not to the
remainder of the offender’s sentence.
{¶21} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Ohio
Supreme Court set out the procedures for trial courts to follow depending on whether
the offender’s sentence was imposed before or after July 11, 2006, the effective date
of R.C. 2929.191:
{¶22} “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.
{¶23} “For criminal sentences imposed on and after July 11, 2006, in which a
trial court failed to properly impose postrelease control, trial courts shall apply the
procedures set forth in R.C. 2929.191.” Id. at paragraphs one and two of the
syllabus.
{¶24} Appellant was originally sentenced on April 4, 2006, before the effective
date of R.C. 2929.191. However, this court vacated that sentence in Wallace, 2007-
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Ohio-6226, and remanded the matter for resentencing. The trial court then
resentenced appellant on February 6, 2008, after the effective date of R.C. 2929.191.
It was from this February 6, 2008 sentencing judgment entry that appellant filed his
motion to vacate void sentence and it was this judgment entry that failed to properly
advise appellant that his postrelease control term was mandatory.
{¶25} Because appellant’s sentence containing the postrelease control error
was not entered until after the July 11, 2006 enactment of R.C. 2929.191, the
procedures set out in that statute as stated in Singleton, supra, apply here.
{¶26} Additionally, while the trial court did not advise appellant of his appellate
rights at the February 6, 2008 hearing, in all other respects it did provide him with a
de novo sentencing hearing. The court first heard from the state and appellant’s
counsel. (Feb. 6, 2008 Tr. 2-5). It then provided appellant with the right of allocution.
(Feb. 6, 2008 Tr. 5). The court next stated that it considered the record, the oral
statements, the presentence investigation report, the principles and purposes of
sentencing pursuant to R.C. 2929.11, and the seriousness and recidivism factors
pursuant to R.C. 2929.12. (Feb. 6, 2008 Tr. 6). The court then re-imposed its
previous sentence. (Feb. 6, 2008 Tr. 7). Finally, the court properly advised appellant
of his mandatory five-year term of postrelease control. (Feb. 6, 2008 Tr. 7). Thus,
the trial court provided appellant with a more in depth hearing than R.C. 2929.191
requires.
{¶27} Accordingly, appellant’s first assignment of error is without merit.
{¶28} Appellant’s second assignment of error states:
{¶29} “AS A MATTER OF LAW THE EVIDENCE [WAS] INSUFFICIENT TO
SUPPORT THE CONVICTION FOR INTIMIDATION OF A WITNESS?”
{¶30} Here appellant argues that his conviction for intimidation of a witness
was not supported by sufficient evidence.
{¶31} This assignment of error is barred based on the doctrine of res judicata
as dictated by State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238.
{¶32} In that case, Fischer filed an appeal from his conviction for multiple
felonies. His convictions were affirmed by the appellate court. Several years later,
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Fischer moved for resentencing after the Ohio Supreme Court issued Bezak, 114
Ohio St.3d 94 (holding that a sentence that omits a statutorily mandated postrelease
control term is void) arguing the trial court had not properly advised him about
postrelease control. The trial court granted Fischer a resentencing hearing where it
properly notified Fischer on his postrelease control obligations and re-imposed the
remainder of Fischer’s sentence.
{¶33} Fischer appealed asserting that because his original sentence was
void, his first direct appeal was not valid and this appeal was actually his first direct
appeal where he was free to raise any and all issues relating to his conviction. The
court of appeals disagreed, holding that Fischer’s appeal was precluded under the
law-of-the-case doctrine.
{¶34} The Ohio Supreme Court concluded that a direct appeal from a
resentencing ordered pursuant to Bezak, supra, is not a first appeal as of right.
Fischer, at ¶32. The Court then went through a discussion of void judgments,
sentences that are contrary to law, and Bezak. The Court reaffirmed its holding in
Bezak that, “‘[w]hen a defendant is convicted of or pleads guilty to one or more
offenses and postrelease control is not properly included in a sentence for a
particular offense, the sentence for that offense is void,’ but with the added proviso
that only the offending portion of the sentence is subject to review and correction.”
Id. at ¶27. The court went on to modify Bezak, however, holding that “[t]he new
sentencing hearing to which an offender is entitled under State v. Bezak is limited to
proper imposition of postrelease control” instead of an entirely new sentencing
hearing. Id. at paragraph two of the syllabus; ¶¶28-29.
{¶35} The Court went on to find that because Fischer had already had the
benefit of one direct appeal, he could not now raise any and all claims of error in a
second, successive appeal. Id. at ¶33. Thus, the Court held:
{¶36} “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.
{¶37} “The scope of an appeal from a resentencing hearing in which a
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mandatory term of postrelease control is imposed is limited to issues arising at the
resentencing hearing.” Id. at paragraphs three and four of the syllabus.
{¶38} Like Fischer’s sentence, appellant’s sentence was only void as to the
extent the trial court improperly advised him regarding his postrelease control
obligation. The trial court recognized its error, granted appellant a resentencing
hearing where it corrected its error, and re-imposed the same sentence. Now, on
appeal, appellant is limited to raising issues that arose at the resentencing hearing.
Res judicata precludes him from asserting any issues he raised, or could have
raised, in his first direct appeal including sufficiency of the evidence.
{¶39} Accordingly, appellant’s second assignment of error is without merit.
{¶40} The appeal here stems from a new hearing pursuant to R.C. 2929.191
to correct the court’s previous error regarding the information it gave to appellant
about postrelease control. Thus, appellant was limited to only raising errors that
arose at the resentencing hearing. This he did in his first assignment of error. As the
trial court properly informed appellant of his mandatory five-year term of postrelease
control, there are no other potential errors he can now assert.
{¶41} For the reasons stated above, the trial court’s judgment is hereby
affirmed. Counsel’s motion to withdraw is granted.
Waite, P.J., concurs.
DeGenaro, J., concurs.