State v. Simmons

[Cite as State v. Simmons, 2011-Ohio-2625.]
STATE OF OHIO, JEFFERSON COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 10-JE-4
)
MICHAEL SIMMONS, ) OPINION
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Jefferson County, Ohio
Case No. 05CR130

JUDGMENT: Affirmed

APPEARANCES:
For Plaintiff-Appellee Jane M. Hanlin
Prosecuting Attorney
Thomas R. Straus
Ass’t. Prosecuting Attorney
16001 State Route 7
Steubenville, Ohio 43952

For Defendant-Appellant Attorney Keith O’Korn
440 Polaris Parkway, Suite 150
Westerville, Ohio 43082

JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

Dated: May 26, 2011
[Cite as State v. Simmons, 2011-Ohio-2625.]
DONOFRIO, J.

{¶1} Defendant-appellant, Michael Simmons, appeals from a Jefferson
County Common Pleas Court judgment resentencing him for convictions of corrupting
a minor, trafficking in crack cocaine, tampering with evidence, and possession of
crack cocaine.
{¶2} The facts of this case were set out in State v. Simmons, 7th Dist. No.
06-JE-4, 2007-Ohio-1570 (Simmons 1), at ¶¶2-3:
{¶3} “On August 11, 2005, a confidential informant arranged to purchase
crack cocaine from appellant, with whom the confidential informant had dealt in the
past. The Steubenville police searched the informant, provided her with $300 in
marked money, wired her and set up surveillance. Appellant arrived to meet the
informant in an alley less than 500 feet from Steubenville High School with a sixteen-
year-old juvenile in the passenger seat. According to the informant, she gave
appellant the $300 in marked money in exchange for two bags later confirmed to
contain 2.46 grams of crack cocaine.
{¶4} “Upon hearing the exchange was completed, the police entered the
alley with lights and sirens activated. When appellant did not immediately stop, they
forced his vehicle to a stop. The marked money was not found in the vehicle or on its
occupants. In retracing the path of the chase, the police discovered the $300 in
marked money and .96 grams of crack cocaine in a vacant grassy lot.”
{¶5} Appellant was subsequently indicted and convicted on one count of
corrupting a minor, a first-degree felony in violation of R.C. 2925.02(A)(4)(c)(C)(1),
with a specification that the offense was committed in the vicinity of a school; one
count of trafficking in crack cocaine in an amount that equals or exceeds one gram
but is less than five grams, a third-degree felony in violation of R.C.
2925.03(A)(1)(C)(4)(c), with a specification that the offense was committed in the
vicinity of a school or a juvenile; one count of tampering with evidence, a third-degree
felony in violation of R.C. 2921.12(A)(1); and one count of possession of crack
cocaine in an amount that equals or exceeds one gram but is less than five grams, a
fourth-degree felony in violation of R.C. 2925.11(A)(C)(4)(b).
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{¶6} The trial court sentenced appellant to a total of 15 years in prison (eight
years for corrupting a minor, three years for trafficking in crack cocaine, three years
for tampering with evidence, and 12 months for possession of crack cocaine).
{¶7} Appellant appealed and this court affirmed his conviction but vacated
his sentence and remanded the matter for resentencing. Simmons 1, supra.
{¶8} On remand, the trial court held a resentencing hearing and again
imposed the same 15-year sentence. Appellant filed an appeal from this
resentencing judgment. State v. Simmons, 7th Dist. No. 07-JE-22, 2008-Ohio-3337
(Simmons 2). This time, we affirmed appellant’s sentence. Simmons 2.
{¶9} On December 11, 2009, appellant filed a motion in the trial court to
vacate his sentence. He argued that the trial court improperly imposed his
postrelease control by stating that he “may” be subject to postrelease control instead
of “shall” be subject to postrelease control, rendering his sentence void. He
requested a new sentencing hearing.
{¶10} The trial court, finding that it did in fact improperly impose postrelease
control, granted appellant’s motion for a new sentencing hearing. It held a
resentencing hearing once again imposing the same 15-year total sentence. This
time, the trial court stated that appellant “shall” be subject to a period of postrelease
control.
{¶11} Appellant filed a timely notice of appeal from this judgment on February
26, 2010.
{¶12} Appellant raises 11 assignments of error stating respectively, numbers
one through nine and eleven:
{¶13} “THE COURT ERRED BY (1) NOT PERMITTING COURT-
APPOINTED COUNSEL TO WITHDRAW AND APPOINTING ANOTHER
ATTORNEY OR (2) NOT CONTINUING THE TRIAL DATE AT LEAST ONCE SO
THAT APPELLANT AND HIS FAMILY COULD RETAIN HIS COUNSEL OF CHOICE
THEREBY DEPRIVING APPELLANT OF HIS DUE PROCESS AND EQUAL
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PROTECTION RIGHTS AND HIS RIGHT TO A FAIR TRIAL AND COUNSEL OF
CHOICE * * *.”
{¶14} “THE ADMISSION OF ‘OTHER ACTS’ EVIDENCE AGAINST
APPELLANT, INCLUDING UNSUBSTANTIATED ALLEGATIONS THAT HE ‘TOOK
OVER’ SOMEONE ELSE’S DRUG BUSINESS, THAT HE TRADED STOLEN
CREDIT CARDS FOR DRUGS, AND THAT HE ENGAGED IN SIX TO SEVEN
PRIOR SALES OF COCAINE, CONSTITUTED PLAIN ERROR AND DEPRIVED
APPELLANT OF HIS * * * [CONSTITUTIONAL RIGHTS].”
{¶15} “THE FOLLOWING INSTANCES OF IMPROPER CONDUCT BY THE
PROSECUTING ATTORNEY, INDIVIDUALLY OR IN THE AGGREGATE,
DEPRIVED APPELLANT OF HIS RIGHT TO DUE PROCESS AND A
FUNDAMENTALLY FAIR JURY TRIAL * * *.”
{¶16} “THE DEFECTIVE JURY INSTRUCTION ON THE COUNT OF
CORRUPTING ANOTHER (A JUVENILE) WITH DRUGS CONSTITUTED
STRUCTURAL AND/OR PLAIN ERROR AND DEPRIVED APPELLANT OF HIS
RIGHT TO DUE PROCESS AND RIGHT TO A JURY DETERMINATION ON EACH
ELEMENT OF THE CRIME CHARGED * * *.”
{¶17} “THE COURT’S ‘OFF THE RECORD’ COMMUNICATION WITH THE
JURY CONTRAVENED CRIM.R. 22 AND CRIM.R. 43(A), CONSTITUTED
STRUCTURAL ERROR, AND VIOLATED APPELLANT’S RIGHT[S] * * *.”
{¶18} “APPELLANT’S CONVICTION FOR CORRUPTING ANOTHER (A
JUVENILE) WITH DRUGS IS NOT SUPPORTED BY SUFFICIENT EVIDENCE * * *
AND/OR IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE * * *.”
{¶19} “THE STATE’S USE OF THE ALLEGED JUVENILE ACCOMPLICE’S
DELINQUENCY ADJUDICATION FOR COMPLICITY TO TRAFFICKING IN CRACK
COCAINE AS SUBSTANTIVE EVIDENCE OF APPELLANT’S GUILT OF
CORRUPTING ANOTHER (A JUVENILE) WITH DRUGS AND TRAFFICKING IN
COCAINE VIOLATED EVID.R. 609(D), EVID.R. 803(22) AND R.C. 2151.358(H),
CONSTITUTED PLAIN ERROR, AND DEPRIVED APPELLANT OF HIS RIGHT TO
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DUE PROCESS, RIGHT OF CONFRONTATION, AND RIGHT TO A
FUNDAMENTALLY FAIR JURY TRIAL * * *.”
{¶20} “THE COURT EXPOSED APPELLANT TO MULTIPLE PUNISHMENTS
FOR THE SAME OFFENSE IN VIOLATION OF HIS RIGHTS * * * WHEN IT FAILED
TO MERGE THE GUILTY VERDICTS ON THE COUNTS OF CORRUPTING
ANOTHER (A JUVENILE) WITH DRUGS, TRAFFICKING IN CRACK COCAINE,
POSSESSION OF CRACK COCAINE, AND THE SCHOOL AND JUVENILE
SPECIFICATIONS * * *.”
{¶21} “THE SENTENCE WAS VOID, CONTRARY TO LAW AND AN ABUSE
OF DISCRETION UNDER OHIO LAW DUE TO ITS FAILURE TO ADHERE TO
FOSTER AND ITS LACK OF PROPORTIONALITY, AND THE SENTENCE
VIOLATED THE APPELLANT’S RIGHTS AGAINST CRUEL AND UNUSUAL
PUNISHMENT * * *.”
{¶22} “APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL * * * [FOR FAILING TO OBJECT TO THE ISSUES
RAISED IN ASSIGNMENTS OF ERROR TWO, THREE, FOUR, AND SEVEN].”
{¶23} These assignments of error are virtually identical to those raised in
Simmons 1. Thus, we must dispose of them based on the doctrine of res judicata as
dictated by State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238.
{¶24} In that case, Fischer filed an appeal from his convictions for multiple
felonies. His convictions were affirmed by the appellate court. Several years later,
Fischer moved for resentencing after the Ohio Supreme Court issued State v. Bezak,
114 Ohio St.3d 94, 2007-Ohio-3250 (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 of his postrelease control
obligations and re-imposed the remainder of Fischer’s sentence.
{¶25} 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
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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.
{¶26} 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.
{¶27} 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:
{¶28} “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.
{¶29} “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.” Id. at paragraphs three and four of the syllabus.
{¶30} 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.
 -6-

Res judicata precludes him from raising any issues he raised, or could have raised, in
his first direct appeal (Simmons 1).
{¶31} Because all of the issues in assignments of error one through nine and
assignment of error eleven were raised in appellant’s first direct appeal, Fischer and
the doctrine of res judicata preclude any further review. Accordingly, appellant’s first,
second, third, fourth, fifth, sixth, seventh, eighth, ninth, and eleventh assignments of
error are meritless.
{¶32} The only assignment of error appellant asserts now that he did not
assert in Simmons 1 is his tenth assignment of error, which states:
{¶33} “THE COURT ERRED IN CONTRAVENTION OF RECENT U.S.
SUPREME COURT PRECEDENT, OREGON V. ICE, BY IMPOSING
CONSECUTIVE SENTENCES WITHOUT MAKING ALL THE REQUIRED
STATUTORY FINDINGS PURSUANT TO R.C. §§ 2929.14(E)(4), 2929.41(A).”
{¶34} Here appellant argues that Oregon v. Ice (2009), 555 U.S. 160, has
abrogated State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, wherein the Ohio
Supreme Court excised as unconstitutional R.C. 2929.14(E)(4) and 2929.41(A),
which required trial courts to make certain findings before imposing consecutive
sentences. He contends that because the trial court did not make these findings, it
could not sentence him to consecutive sentences.
{¶35} In Oregon v. Ice (2009), 555 U.S. 160, the United States Supreme
Court upheld the constitutionality of an Oregon statute similar to Ohio's pre-Foster
consecutive-sentencing statute. The Oregon statute upheld by the Supreme Court
requires trial judges to make factual findings prior to imposing consecutive
sentences.
{¶36} Ice was not decided until January 2009, several years after appellant’s
first appeal. Thus, he would not have raised this specific assignment of error then.
{¶37} But the issue is nonetheless barred by the doctrine of res judicata. This
is because Fischer instructs us that on appeal from a resentencing judgment in which
the only issue is the proper advisement of postrelease control, “only the offending
 -7-

portion of the sentence is subject to review and correction.” Fischer, 128 Ohio St.3d
at ¶27. The “offending portion” of appellant’s sentence was the trial court’s incorrect
statement that appellant’s postrelease control term was discretionary when in fact it
was mandatory. Consequently, we may now only consider whether the trial court
corrected this error, which it did.
{¶38} Furthermore, even if we were to consider the merits of appellant’s
argument, the outcome would remain the same.
{¶39} The Ohio Supreme Court recently decided State v. Hodge, 128 Ohio
St.3d 1, 2010-Ohio-6320, wherein it held:
{¶40} “The United States Supreme Court's decision in Oregon v. Ice * * *
does not revive Ohio's former consecutive-sentencing statutory provisions, R.C.
2929.14(E)(4) and 2929.41(A), which were held unconstitutional in State v. Foster * *
*.
{¶41} “Trial court judges are not obligated to engage in judicial fact-finding
prior to imposing consecutive sentences unless the General Assembly enacts new
legislation requiring that findings be made.” Id. at paragraphs two, and three of the
syllabus.
{¶42} The Hodge Court acknowledged that Ice undermined some of the
Foster reasoning that judicial fact-finding in the imposition of consecutive sentences
violates the Sixth Amendment. Id. at ¶19. It even went so far as to note, “[h]ad we
the benefit of the United States Supreme Court's decision in Ice regarding Oregon's
consecutive-sentencing statutes prior to our decision in Foster, we likely would have
ruled differently as to the constitutionality, and continued vitality, of our own state's
consecutive-sentencing provisions.” Id. at ¶20. But the Hodge Court also pointed out
that the United States Supreme Court did not accept Foster for direct review and
therefore Ice did not specifically overrule Foster. Id. at ¶18.
{¶43} Thus, the Ohio Supreme Court held that the judicial findings previously
required in order to impose consecutive sentences are not required despite the
United States Supreme Court’s decision in Ice, supra.
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{¶44} Accordingly, appellant’s tenth assignment of error is meritless.
{¶45} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Waite, P.J., concurs.

DeGenaro, J., concurs.