[Cite as State v. Barclay, 2011-Ohio-4770.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25646
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE MARK A. BARCLAY COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 02 02 0305(C)
DECISION AND JOURNAL ENTRY
Dated: September 21, 2011
CARR, Presiding Judge.
{¶1} Appellant, Marc A. Barclay, appeals the judgment of the Summit County Court of
Common Pleas. This Court affirms, in part, and vacates, in part.
I.
{¶2} On February 12, 2002, Barclay was indicted by the Summit County Grand Jury
on one count of aggravated murder, in violation of R.C. 2903.01(A); two counts of kidnapping in
violation of R.C. 2905.01(A)(3); and one count of abuse of a corpse in violation of R.C.
2927.01(B). The State subsequently moved to amend the indictment, and the trial court granted
the motion. The aggravated murder charge, as contained in the original indictment, was reduced
to the lesser included offense of murder. The case proceeded to trial. On October 25, 2002, the
jury returned guilty verdicts on all counts and Barclay was sentenced thereafter. 2
{¶3} Barclay filed a notice of appeal on November 22, 2002. This Court affirmed
Barclay’s convictions on October 15, 2003. State v. Barclay, 9th Dist. No. 21336, 2003-Ohio-
5468.
{¶4} On July 12, 2010, Barclay filed a motion to discharge. In responding to the
motion, the State acknowledged that the 2002 sentencing entry did not properly impose post-
release control and requested that Barclay be resentenced de novo. The trial court conducted a
resentencing hearing on August 25, 2010, and subsequently issued a sentencing entry on
September 20, 2010. Barclay filed a notice of appeal on October 20, 2010.
{¶5} On appeal, Barclay raises three assignments of error.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED IN NOT DISMISSING THE APPLELLANT’S INDICTMENT(S) THAT ARE CONSTITUTIONALLY INSUFFICIENT TO CHARGE ANY CRIMINAL OFFENSE WHATSOEVER UNDER OHIO LAW, VIOLATING APPELLANT’S RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND SECTION 10 ARTICLE I OF THE OHIO CONSTITUTION[.]”
{¶6} In his first assignment of error, Barclay argues that the trial court erred in not
dismissing the indictment. This Court disagrees.
{¶7} In support of his first assignment of error, Barclay argues that the indictment
contained several defects which rendered it insufficient to charge an offense. The State counters
that because Barclay did not raise these claims on direct appeal, he is now barred from raising
the issue on the basis of res judicata.
{¶8} “A determination of whether the doctrine of res judicata bars an action is a
question of law which this Court reviews de novo.” Brott v. Green, 9th Dist. No. 21209, 2003-
Ohio-1592, at ¶11, citing Davis v. Coventry Twp. Bd. of Zoning Appeals (Feb. 14, 2001), 9th 3
Dist. No. 20085; Payne v. Cartee (1996), 111 Ohio App.3d 580, 586-587. When reviewing a
matter de novo, this court does not give deference to the trial court’s decision. State v. Stallings,
150 Ohio App.3d 5, 2002-Ohio-5942, at ¶6.
{¶9} In State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus, the
Supreme Court of Ohio articulated the parameters of the doctrine of res judicata:
“Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.”
{¶10} (Emphasis added.) This Court has recognized that, by the plain language of
Perry, “the doctrine of res judicata is directed at procedurally barring convicted defendants from
relitigating matters which were, or could have been, litigated on direct appeal.” State v. Widman
(May 16, 2001), 9th Dist. No. 00CA007681.
{¶11} Barclay exercised his right to appeal to this Court in 2002. On appeal, Barclay
raised one assignment of error in which he argued that his convictions were against the manifest
weight of the evidence. This Court affirmed Barclay’s convictions on October 15, 2003. State v.
Barclay, 9th Dist. No. 21336, 2003-Ohio-5468. As Barclay did not raise any issues with the
indictment in his appeal of right, he is now barred from raising that issue in a subsequent action.
Widman, supra.
{¶12} The first assignment of error is overruled.
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES ON THE APPELLANT WHEN NO STATUTORY AUTHORITY EXIST[S] FOR THE IMPOSITION OF SUCH, VIOLATING THE APPELLANT’S CONSTITUTIONAL RIGHTS PURSUANT TO THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES 4
CONSTITUTION, AND ARTICLE I SECTION 16 & ARTICLE IV SECTION 10 OF THE OHIO CONSTITUTION[.]”
ASSIGNMENT OF ERROR III
“THE TRIAL COURT ERRED IN IMPOSING ANY SENTENCE UPON APPELLANT DUE TO THE UNREASONABLE DELAY IN IMPOSING A VALID SENTENCE WHICH RESULTED IN A LOSS OF JURISDICTION, VIOLATING APPELLANT’S RIGHT TO DUE PROCESS UNDER THE UNITED STATES AND OHIO CONSTITUTION[.]”
{¶13} In his second assignment of error, Barclay argues that the trial court was without
authority to impose consecutive sentences. In his final assignment of error, Barclay argues that
the trial court was without authority to resentence him due to unreasonable delay. This Court
disagrees with both propositions.
{¶14} We address Barclay’s second and third assignments of error together as both deal
with the trial court’s authority to impose sentence. In support of his second assignment of error,
Barclay argues that the trial court was without authority to impose consecutive sentences without
first making certain findings of fact. Barclay further argues that the Supreme Court of Ohio’s
decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, is unconstitutional and “nothing
more than judicial expansion of jurisdiction by fiat, as it relates to consecutive sentences.” In
support of his third assignment of error, Barclay argues that the trial court was without
jurisdiction to resentence him in 2010 because there was an unreasonable delay between the time
he was found guilty and the time a lawful sentence was imposed. Barclay contends that the trial
court failed to comply with R.C. 2967.28 in sentencing him in 2002 and, therefore, his original
sentence was void. Barclay concludes that because he was not given a lawful sentence until
2010, his resentencing violated his rights under Crim.R. 32(A).
{¶15} The Supreme Court of Ohio has held that an error in post-release control
notification does not result in a void sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio- 5
6238. In Fischer, the Supreme Court held that “when a judge fails to impose statutorily
mandated postrelease control as part of a defendant’s sentence, that part of the sentence is void
and must be set aside.” Id. at ¶26. The Court reasoned that “[n]either the Constitution nor
common sense commands anything more.” Id. The new sentencing hearing that a defendant is
entitled to “is limited to proper imposition of postrelease control.” Id. at ¶29. The Court also
held that res judicata “applies to other aspects of the merits of a conviction, including the
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[Cite as State v. Barclay, 2011-Ohio-4770.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25646
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE MARK A. BARCLAY COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 02 02 0305(C)
DECISION AND JOURNAL ENTRY
Dated: September 21, 2011
CARR, Presiding Judge.
{¶1} Appellant, Marc A. Barclay, appeals the judgment of the Summit County Court of
Common Pleas. This Court affirms, in part, and vacates, in part.
I.
{¶2} On February 12, 2002, Barclay was indicted by the Summit County Grand Jury
on one count of aggravated murder, in violation of R.C. 2903.01(A); two counts of kidnapping in
violation of R.C. 2905.01(A)(3); and one count of abuse of a corpse in violation of R.C.
2927.01(B). The State subsequently moved to amend the indictment, and the trial court granted
the motion. The aggravated murder charge, as contained in the original indictment, was reduced
to the lesser included offense of murder. The case proceeded to trial. On October 25, 2002, the
jury returned guilty verdicts on all counts and Barclay was sentenced thereafter. 2
{¶3} Barclay filed a notice of appeal on November 22, 2002. This Court affirmed
Barclay’s convictions on October 15, 2003. State v. Barclay, 9th Dist. No. 21336, 2003-Ohio-
5468.
{¶4} On July 12, 2010, Barclay filed a motion to discharge. In responding to the
motion, the State acknowledged that the 2002 sentencing entry did not properly impose post-
release control and requested that Barclay be resentenced de novo. The trial court conducted a
resentencing hearing on August 25, 2010, and subsequently issued a sentencing entry on
September 20, 2010. Barclay filed a notice of appeal on October 20, 2010.
{¶5} On appeal, Barclay raises three assignments of error.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED IN NOT DISMISSING THE APPLELLANT’S INDICTMENT(S) THAT ARE CONSTITUTIONALLY INSUFFICIENT TO CHARGE ANY CRIMINAL OFFENSE WHATSOEVER UNDER OHIO LAW, VIOLATING APPELLANT’S RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND SECTION 10 ARTICLE I OF THE OHIO CONSTITUTION[.]”
{¶6} In his first assignment of error, Barclay argues that the trial court erred in not
dismissing the indictment. This Court disagrees.
{¶7} In support of his first assignment of error, Barclay argues that the indictment
contained several defects which rendered it insufficient to charge an offense. The State counters
that because Barclay did not raise these claims on direct appeal, he is now barred from raising
the issue on the basis of res judicata.
{¶8} “A determination of whether the doctrine of res judicata bars an action is a
question of law which this Court reviews de novo.” Brott v. Green, 9th Dist. No. 21209, 2003-
Ohio-1592, at ¶11, citing Davis v. Coventry Twp. Bd. of Zoning Appeals (Feb. 14, 2001), 9th 3
Dist. No. 20085; Payne v. Cartee (1996), 111 Ohio App.3d 580, 586-587. When reviewing a
matter de novo, this court does not give deference to the trial court’s decision. State v. Stallings,
150 Ohio App.3d 5, 2002-Ohio-5942, at ¶6.
{¶9} In State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus, the
Supreme Court of Ohio articulated the parameters of the doctrine of res judicata:
“Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.”
{¶10} (Emphasis added.) This Court has recognized that, by the plain language of
Perry, “the doctrine of res judicata is directed at procedurally barring convicted defendants from
relitigating matters which were, or could have been, litigated on direct appeal.” State v. Widman
(May 16, 2001), 9th Dist. No. 00CA007681.
{¶11} Barclay exercised his right to appeal to this Court in 2002. On appeal, Barclay
raised one assignment of error in which he argued that his convictions were against the manifest
weight of the evidence. This Court affirmed Barclay’s convictions on October 15, 2003. State v.
Barclay, 9th Dist. No. 21336, 2003-Ohio-5468. As Barclay did not raise any issues with the
indictment in his appeal of right, he is now barred from raising that issue in a subsequent action.
Widman, supra.
{¶12} The first assignment of error is overruled.
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES ON THE APPELLANT WHEN NO STATUTORY AUTHORITY EXIST[S] FOR THE IMPOSITION OF SUCH, VIOLATING THE APPELLANT’S CONSTITUTIONAL RIGHTS PURSUANT TO THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES 4
CONSTITUTION, AND ARTICLE I SECTION 16 & ARTICLE IV SECTION 10 OF THE OHIO CONSTITUTION[.]”
ASSIGNMENT OF ERROR III
“THE TRIAL COURT ERRED IN IMPOSING ANY SENTENCE UPON APPELLANT DUE TO THE UNREASONABLE DELAY IN IMPOSING A VALID SENTENCE WHICH RESULTED IN A LOSS OF JURISDICTION, VIOLATING APPELLANT’S RIGHT TO DUE PROCESS UNDER THE UNITED STATES AND OHIO CONSTITUTION[.]”
{¶13} In his second assignment of error, Barclay argues that the trial court was without
authority to impose consecutive sentences. In his final assignment of error, Barclay argues that
the trial court was without authority to resentence him due to unreasonable delay. This Court
disagrees with both propositions.
{¶14} We address Barclay’s second and third assignments of error together as both deal
with the trial court’s authority to impose sentence. In support of his second assignment of error,
Barclay argues that the trial court was without authority to impose consecutive sentences without
first making certain findings of fact. Barclay further argues that the Supreme Court of Ohio’s
decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, is unconstitutional and “nothing
more than judicial expansion of jurisdiction by fiat, as it relates to consecutive sentences.” In
support of his third assignment of error, Barclay argues that the trial court was without
jurisdiction to resentence him in 2010 because there was an unreasonable delay between the time
he was found guilty and the time a lawful sentence was imposed. Barclay contends that the trial
court failed to comply with R.C. 2967.28 in sentencing him in 2002 and, therefore, his original
sentence was void. Barclay concludes that because he was not given a lawful sentence until
2010, his resentencing violated his rights under Crim.R. 32(A).
{¶15} The Supreme Court of Ohio has held that an error in post-release control
notification does not result in a void sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio- 5
6238. In Fischer, the Supreme Court held that “when a judge fails to impose statutorily
mandated postrelease control as part of a defendant’s sentence, that part of the sentence is void
and must be set aside.” Id. at ¶26. The Court reasoned that “[n]either the Constitution nor
common sense commands anything more.” Id. The new sentencing hearing that a defendant is
entitled to “is limited to proper imposition of postrelease control.” Id. at ¶29. The Court also
held that res judicata “applies to other aspects of the merits of a conviction, including the
determination of guilt and the lawful elements of the ensuing sentence.” Id. at paragraph three of
the syllabus.
{¶16} Moreover, Crim.R. 32(A) states that a sentence “shall be imposed without
unnecessary delay.” The Supreme Court of Ohio has recognized that delay for a reasonable time
does not invalidate a sentence. Neal v. Maxwell (1963), 175 Ohio St. 201, 202. This Court has
held that Crim.R. 32(A) does not apply in cases where an offender must be re-sentenced. State v.
Spears, 9th Dist. No. 24953, 2010-Ohio-1965, at ¶19, citing State v. Huber, 8th Dist. No. 85082,
2005-Ohio-2625, ¶8. See, also, State v. Culgan, 9th Dist. No. 09CA0060-M, 2010-Ohio-2992, at
¶36-37; State v. Jones, 9th Dist. No. 25032, 2010-Ohio-4455, at ¶9-10; State v. Banks, 9th Dist.
No. 25279, 2011-Ohio-1039, at ¶42-43. “This logic, as it relates to Crim.R. 32(A), recognizes
the distinction between a trial court refusing to sentence an offender and a trial court improperly
sentencing an offender.” Spears at ¶19. Furthermore, the Supreme Court of Ohio has held that a
trial court retains continuing jurisdiction to correct a void sentence. State ex rel. Cruzado v.
Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, at ¶19, citing State v. Beasley (1984), 14 Ohio
St.3d 74, 75.
{¶17} This case does not involve a scenario where the trial court refused to impose a
sentence on an offender. Rather, Barclay was sentenced immediately after he was found guilty 6
in 2002. As noted above, Barclay appealed his convictions to this Court and raised one
assignment of error relating to the weight of the evidence. This Court affirmed Barclay’s
convictions. Barclay, supra. Nearly eight years after he was convicted, on July 12, 2010,
Barclay filed a motion to be discharged on the basis that he had not been properly notified of
post-release control and, therefore, the trial court was without jurisdiction to sentence him. In
responding to the motion on July 16, 2010, the State argued that while there had, in fact, been an
error in notifying Barclay of post-release control, the appropriate remedy was to conduct a de
novo resentencing hearing. On July 23, 2010, the trial court issued a journal entry ordering the
Summit County Sheriff to return Barclay for resentencing. The trial court subsequently
conducted a resentencing hearing on August 25, 2010, and issued a new sentencing entry on
September 20, 2010. In accordance with Fischer, the scope of the new sentencing hearing to
which Barclay was entitled was limited to the proper imposition of post-release control. Fischer,
at paragraph two of the syllabus. Likewise, the scope of Barclay’s appeal from that hearing is
limited solely to issues relating to the imposition of post-release control. Id. at paragraph four of
the syllabus. It follows that the trial court had authority to impose the proper term of post-release
control on Barclay at the August 25, 2010 hearing. As the lawful portion of Barclay’s original
sentence remained in place pursuant to Fischer, the trial court did not have authority to conduct a
de novo sentencing hearing and reissue a sentence. Furthermore, as the lawful elements of
Barclay’s original sentence remained in place, Barclay cannot prevail on his argument that there
was unreasonable delay in imposing a sentence. To the extent the trial court properly imposed a
mandatory five-year period of post-release control upon Barclay at the resentencing hearing, its
judgment is affirmed. To the extent the trial court conducted a de novo sentencing hearing and
reissued a sentence to Barclay, its judgment in that respect is vacated. 7
III.
{¶18} Barclay’s first assignment of error is overruled. With respect to the second and
third assignments of error, the judgment of the Summit County Court of Common Pleas is
vacated to the extent the court exceeded its authority and resentenced Barclay. The trial court’s
decision to properly impose a mandatory five-year period of post-release control on Barclay’s
sentence is affirmed.
Judgment affirmed in part, and vacated in part.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT 8
WHITMORE, J. MOORE, J. CONCUR
APPEARANCES:
MARK A. BARCLAY, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.