State v. Barcus

2011 Ohio 1313

Opinion

[Cite as State v. Barcus, 2011-Ohio-1313.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Julie A. Edwards, J. -vs- : : ROBERT BARCUS : Case No. 10-CA-101 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case. No. 2004CR0089

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 21, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

TRACY F. VAN WINKLE ANDREW T. SANDERSON 20 South Second Street 21 West Church Street 4th Floor Suite 201 Newark, OH 43055 Newark, OH 43055 Licking County, Case No. 10-CA-101 2

Farmer, P.J.

{¶1} On September 2, 2004, appellant, Robert Barcus, pled no contest to one

count of complicity to trafficking in marijuana in violation of R.C. 2923.03 and R.C.

2925.03, two counts of possession of marijuana in violation of R.C. 2925.11, and two

counts of trafficking in marijuana in violation of R.C. 2925.03 (Case No. 04CR0089). By

judgment entry filed September 2, 2004, the trial court sentenced appellant to an

aggregate term of five years in prison. The trial court did not issue any jail time credit as

at the time of his sentencing, appellant was already incarcerated on unrelated charges

(Case No. 02CR00096).

{¶2} On March 5, 2009, appellant filed a motion for jail time credit. By

judgment entry filed March 25, 2009, the trial court denied the motion. This court

affirmed the decision on appeal. See, State v. Barcus, Licking App. No. 09-CA-115,

2010-Ohio-122.

{¶3} On June 7, 2010, appellee, the state of Ohio, filed a motion to correct

appellant's sentence to include a term of postrelease control. A hearing was held on

September 3, 2010. By judgment entry filed same date, the trial court resentenced

appellant to five years in prison and imposed three years of postrelease control.

{¶4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶5} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN FAILING TO

GRANT THE DEFENDANT-APPELLANT JAIL TIME CREDIT AT THE TIME OF HIS

SENTENCING HEARING." Licking County, Case No. 10-CA-101 3

II

{¶6} "THE RESENTENCING OF THE DEFENDANT-APPELLANT WAS IN

ERROR."

I, II

{¶7} Appellant claims the trial court erred in failing to grant him jail time credit

and erred in resentencing him. We disagree.

{¶8} 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:

{¶9} "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."

{¶10} 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, the Supreme Court of Ohio limited the nature of the de novo hearing:

{¶11} "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.

{¶12} "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.) Licking County, Case No. 10-CA-101 4

{¶13} "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.

{¶14} "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."

{¶15} As stated by the Fischer court in paragraph two of the syllabus, the new

sentencing hearing "is limited to proper imposition of postrelease control." Upon review,

we find the trial court sub judice properly notified appellant of the mandatory three year

postrelease control requirement under R.C. 2967.28(B). T. at 12; Judgment Entry filed

September 3, 2010. Jail time credit was not a reviewable issue during this hearing. In

addition, the issue was already reviewed on appeal and found to be barred by the

doctrine of res judicata. See, State v. Barcus, Licking App. No. 09-CA-115, 2010-Ohio-

122.

{¶16} Appellant's arguments on res judicata and cruel and unusual punishment

are denied based upon the well reasoned opinion by this court in State v. Burley,

Licking App. No. 09-CA-136, 2010-Ohio-4840.

{¶17} Assignments of Error I and II are denied. Licking County, Case No. 10-CA-101 5

{¶18} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Edwards, J. concur.

_s/ Sheila G. Farmer__________________

_s/ John W. Wise_____________________

_s/ Julie A. Edwards__________________

JUDGES

SGF/sg 312 Licking County, Case No. 10-CA-101 6

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : ROBERT BARCUS : : Defendant-Appellant : CASE NO. 10-CA-101

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.