State v. Criswell

2011 Ohio 5786

• Court: Ohio Court of Appeals
• Decided: November 10, 2011
• Docket: C-110135 C-110286
• Status: Published

Opinion

[Cite as State v. Criswell, 2011-Ohio-5786.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-110135 C-110286 Plaintiff-Appellee, : TRIAL NOS. B-9907155-B B-9908329 vs. :

ANTHONY CRISWELL, : O P I N I O N. Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: November 10, 2011

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant.

Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

FISCHER, Judge.

{¶1} Defendant-appellant Anthony Criswell was convicted in the case

numbered B-9908329 of preparation of cocaine for sale, in violation of former R.C.

2925.07, possession of cocaine for sale accompanied by a major-drug-offender

specification, and two counts of having a weapon while under a disability. The trial

court imposed the sentences for the preparation-of-cocaine charge and the weapons-

under-disability charges concurrent with the possession-of-cocaine charge, and

sentenced Criswell to 15 years’ incarceration.

{¶2} In a separate case numbered B-9907155-B, Criswell was convicted of

felonious assault accompanied by a firearm specification. The trial court then

imposed a ten-year prison term to be served consecutively to the 15-year prison term

imposed in the case numbered B-9908329.

{¶3} Criswell appealed his convictions to this court in the appeals

numbered C-000222, C-000229, and C-000230. This court vacated Criswell’s

weapons-under-disability convictions, and affirmed Criswell’s convictions in all

other respects.

{¶4} On October 7, 2010, Criswell filed a pro se motion to vacate a void

sentence, arguing that the trial court had failed to inform him of postrelease control.

Because neither of the judgment entries in Criswell’s cases mentioned postrelease

control, the trial court granted Criswell’s motion and held a hearing on the matter.

{¶5} At the hearing, the trial court indicated that Criswell’s convictions in

the case numbered B-9908329 for preparation of cocaine for sale and possession of

cocaine for sale should merge because they were allied offenses of similar import.

The trial court then merged those convictions for the purposes of sentencing, but

2 OHIO FIRST DISTRICT COURT OF APPEALS

imposed the same overall 15-year sentence in that case. Criswell’s sentence in the

case numbered B-9907155-B remained the same. The trial court further notified

Criswell at the hearing that he faced a mandatory three-year period of postrelease

control in the case numbered B-9907155-B, and that he faced a mandatory five-year

period of postrelease control in the case numbered B-9908329. The judgment

entries also reflect this notification.

{¶6} Criswell now appeals, raising a single assignment of error. Criswell

contends that the trial court failed to consider the principles and purposes of

sentencing pursuant to R.C. 2929.11 and 2929.12, and that the trial court abused its

discretion in imposing the sentence in the case numbered B-9907155-B consecutively

to the sentence imposed in the case numbered B-9908329.

{¶7} Pursuant to the Ohio Supreme Court’s decision in State v. Fischer, 128

Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraphs one and two of the

syllabus, if a trial court fails to properly notify a defendant of postrelease control,

then that part of the defendant’s sentence is void, and any new sentencing hearing is

limited to the imposition of postrelease control. Res judicata bars a defendant’s

challenge to lawfully-imposed portions of a sentence. State v. Buckner, 1st Dist. No.

C-100666, 2011-Ohio-4358, ¶6.

{¶8} Because only those portions of Criswell’s sentences pertaining to

postrelease control were void, the trial court’s jurisdiction was limited to informing

Criswell of postrelease control. As a result, the trial court lacked authority to merge

Criswell’s drug offenses in the case numbered B-9908329. State v. Harris, 1st Dist.

Nos. C-100470 and C-100471, 2011-Ohio-2729, ¶5-6. Extending that principle to

Criswell’s assignment of error, the trial court did not have the authority to impose

3 OHIO FIRST DISTRICT COURT OF APPEALS

Criswell’s sentences in the separate cases concurrently instead of consecutively, as

originally imposed. Therefore, Criswell’s assignment of error is overruled.

{¶9} The trial court’s judgment in the case numbered B-9908329 is

reversed, and this cause is remanded for the imposition of Criswell’s original

sentences on the drug counts, as modified with the proper postrelease-control

notification, and the dismissal of the weapons-under-disability counts pursuant to

this court’s disposition of Criswell’s first appeal. The trial court’s judgment in the

case numbered B-9907155-B is affirmed.

Affirmed in part, reversed in part, and cause remanded.

SUNDERMANN, P.J., and CUNNINGHAM, J., concur.

Please Note: The court has recorded its own entry on the date of the release of this opinion.