[Cite as State v. Fields, 2012-Ohio-6086.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : Consolidated Case Nos. CT 12-0028 & CT 12-0030 GERALD D. FIELDS : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2009-0166
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 18, 2012
APPEARANCES:
For Appellant: For Appellee:
DAVID A. SAMS RONALD L. WELCH Box 40 Assistant Prosecuting Attorney West Jefferson, OH 43162 27 N. 5th Street, Suite 201 P.O. Box 189 Zanesville, OH 43702-0189 [Cite as State v. Fields, 2012-Ohio-6086.]
Delaney, J.
{¶1} Appellant Gerald D. Fields appeals from the April 24 and May 9, 2012
judgment entries of the Muskingum County Court of Common Pleas overruling his
motion to withdraw plea, resentencing him, and correctly advising him of postrelease
control. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on August 6, 2009, when appellant sold crack cocaine to
a confidential informant in the parking lot of the Bob Evans restaurant on Underwood
Street in Zanesville, Ohio. Appellant drove a 1990 Cadillac during the transaction.
{¶3} Appellant was charged by indictment with 13 criminal counts, and all but
two were dismissed by appellee in exchange for appellant’s guilty pleas. Appellant
ultimately entered pleas of guilty to one count of trafficking in crack cocaine in an
amount greater than or equal to 10 grams but less than 25 grams in violation of R.C.
2925.03(A)(1), a felony of the second degree; this offense included a forfeiture
specification pursuant to R.C. 2941.1417. Appellant also entered a guilty plea to one
count of permitting drug abuse pursuant to R.C. 2925.13(A), a felony of the fifth
degree.
{¶4} Appellant waived his rights and entered pleas of guilty before the trial
court on October 13, 2009. On the record at the plea hearing, the trial court advised
appellant he was subject to postrelease control for “up to three years.”
{¶5} On November 9, 2009, appellant was sentenced to an aggregate prison
term of 9 years. Muskingum County, Case No. CT 12-0030 3
{¶6} Appellant directly appealed from his conviction and sentence and we
affirmed both in State v. Fields, 5th Dist. No. CT2009-0057, 2010-Ohio-6233, appeal
not allowed, 128 Ohio St.3d 1459, 2011-Ohio-1829, 945 N.E.2d 523 [Fields I].
Appellant argued, e.g., his plea was not knowing, voluntary, and intelligent because
the trial court advised him he could receive “up to” three years of post-release control
instead of a mandatory term of three years post-release control. We overruled
appellant’s arguments because although the trial court misstated the term of post-
release control during the plea colloquy, the 3-year mandatory term was correctly
stated in the written plea form signed and acknowledged by appellant. We held,
therefore, the trial court substantially complied with Crim.R. 11 regarding the duration
of post-release control. Fields I, supra, 2010-Ohio-6233 at ¶ 20.
{¶7} On April 19, 2011, appellant filed a Motion for Post-conviction Relief
which was denied on April 21, 2011. On June 21, 2011, appellant filed a Motion to
Vacate or Set Aside Conviction or Sentence, and a motion to amend same on June
23, 2011, which were denied on June 23, 2011. We again affirmed the trial court’s
judgment in State v. Fields, 5th Dist. No. CT2011-0030, 2011-Ohio-5513 [Fields II].
{¶8} On July 19, 2011, appellant filed a motion for sentence modification
claiming his sentence should be reduced pursuant to H.B. No. 86 due to the bill’s
elimination of the distinction between crack and powder cocaine. The trial court
denied the motion and we again affirmed the judgment of the trial court in State v.
Fields, 5th Dist. No. CT11-0037, 2011-Ohio-6044, appeal not allowed, 131 Ohio St.3d
1472, 2012-Ohio-896, 962 N.E.2d 804 [Fields III]. Muskingum County, Case No. CT 12-0030 4
{¶9} On March 5, 2012, appellant filed a Motion to Withdraw Plea which was
denied by the trial court on April 24, 2012.
{¶10} On May 7, 2012, the trial court resentenced appellant solely for the
purpose of advising appellant he was subject to a 3-year mandatory term of
postrelease control.
{¶11} Appellant filed two appeals, one from the judgment entry denying his
motion to withdraw his guilty plea and one from the judgment entry of resentencing.
We consolidated both appeals herein.
{¶12} Appellant raises two Assignments of Error:
{¶13} “I. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS
CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS
WHEN THE TRIAL COURT OVERRULED HIS MOTION TO WITHDRAW HIS PLEA.”
{¶14} “II. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS
WHEN THE TRIAL COURT RESENTENCED HIM TO A MANDATORY TERM OF
POST-RELEASE CONTROL WITHOUT AFFORDING HIM A DE NOVO HEARING
UNDER HB 86.”
I.
{¶15} In his first assignment of error, appellant argues the trial court violated
his state and federal due process rights when it denied his motion to withdraw his
guilty pleas because he was improperly advised of postrelease control in his original
plea colloquy on October 13, 2009. We disagree. Muskingum County, Case No. CT 12-0030 5
{¶16} Appellant’s March 5, 2012 “Motion for Leave to Withdraw Guilty Plea”
asserts his plea must be vacated because the trial court improperly advised him of a
period of post-release control of “up to three years” at his original plea hearing on
October 13, 2009. Appellant had the opportunity to litigate this claim in his original
direct appeal; his most recent round of argument is therefore barred under the
doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104
(1967). Res judicata bars the assertion of claims against a valid, final judgment of
conviction that have been raised or could have been raised on appeal. Id. “Ohio
courts of appeals have applied res judicata to bar the assertion of claims in a motion
to withdraw guilty plea that were or could have been raised on appeal. State v.
Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59, citations omitted.
In Fields I, we found the sentencing entry was neither illegal nor void because the trial
court completely explained the consequences of a violation of the terms of post-
release control, and appellant failed to demonstrate he would not have entered a plea
of guilty but for the statement at the sentencing hearing. State v. Fields, supra, 2010-
Ohio-6233 at ¶ 31. The trial court thus properly overruled appellant’s motion on the
basis of res judicata.
{¶17} Moreover, we note appellant was resentenced on May 7, 2012, and
properly advised of the mandatory 3-year period of postrelease control.
{¶18} Accordingly, appellant’s first assignment of error is overruled. Muskingum County, Case No. CT 12-0030 6
II.
{¶19} In his second assignment of error, appellant argues he was entitled to a
de novo sentencing hearing. We disagree.
{¶20} In State v. Fischer, the Ohio Supreme Court held the new sentencing
hearing to which an offender is entitled under Bezak [114 Ohio St.3d 94, 2007-Ohio-
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[Cite as State v. Fields, 2012-Ohio-6086.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : Consolidated Case Nos. CT 12-0028 & CT 12-0030 GERALD D. FIELDS : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2009-0166
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 18, 2012
APPEARANCES:
For Appellant: For Appellee:
DAVID A. SAMS RONALD L. WELCH Box 40 Assistant Prosecuting Attorney West Jefferson, OH 43162 27 N. 5th Street, Suite 201 P.O. Box 189 Zanesville, OH 43702-0189 [Cite as State v. Fields, 2012-Ohio-6086.]
Delaney, J.
{¶1} Appellant Gerald D. Fields appeals from the April 24 and May 9, 2012
judgment entries of the Muskingum County Court of Common Pleas overruling his
motion to withdraw plea, resentencing him, and correctly advising him of postrelease
control. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on August 6, 2009, when appellant sold crack cocaine to
a confidential informant in the parking lot of the Bob Evans restaurant on Underwood
Street in Zanesville, Ohio. Appellant drove a 1990 Cadillac during the transaction.
{¶3} Appellant was charged by indictment with 13 criminal counts, and all but
two were dismissed by appellee in exchange for appellant’s guilty pleas. Appellant
ultimately entered pleas of guilty to one count of trafficking in crack cocaine in an
amount greater than or equal to 10 grams but less than 25 grams in violation of R.C.
2925.03(A)(1), a felony of the second degree; this offense included a forfeiture
specification pursuant to R.C. 2941.1417. Appellant also entered a guilty plea to one
count of permitting drug abuse pursuant to R.C. 2925.13(A), a felony of the fifth
degree.
{¶4} Appellant waived his rights and entered pleas of guilty before the trial
court on October 13, 2009. On the record at the plea hearing, the trial court advised
appellant he was subject to postrelease control for “up to three years.”
{¶5} On November 9, 2009, appellant was sentenced to an aggregate prison
term of 9 years. Muskingum County, Case No. CT 12-0030 3
{¶6} Appellant directly appealed from his conviction and sentence and we
affirmed both in State v. Fields, 5th Dist. No. CT2009-0057, 2010-Ohio-6233, appeal
not allowed, 128 Ohio St.3d 1459, 2011-Ohio-1829, 945 N.E.2d 523 [Fields I].
Appellant argued, e.g., his plea was not knowing, voluntary, and intelligent because
the trial court advised him he could receive “up to” three years of post-release control
instead of a mandatory term of three years post-release control. We overruled
appellant’s arguments because although the trial court misstated the term of post-
release control during the plea colloquy, the 3-year mandatory term was correctly
stated in the written plea form signed and acknowledged by appellant. We held,
therefore, the trial court substantially complied with Crim.R. 11 regarding the duration
of post-release control. Fields I, supra, 2010-Ohio-6233 at ¶ 20.
{¶7} On April 19, 2011, appellant filed a Motion for Post-conviction Relief
which was denied on April 21, 2011. On June 21, 2011, appellant filed a Motion to
Vacate or Set Aside Conviction or Sentence, and a motion to amend same on June
23, 2011, which were denied on June 23, 2011. We again affirmed the trial court’s
judgment in State v. Fields, 5th Dist. No. CT2011-0030, 2011-Ohio-5513 [Fields II].
{¶8} On July 19, 2011, appellant filed a motion for sentence modification
claiming his sentence should be reduced pursuant to H.B. No. 86 due to the bill’s
elimination of the distinction between crack and powder cocaine. The trial court
denied the motion and we again affirmed the judgment of the trial court in State v.
Fields, 5th Dist. No. CT11-0037, 2011-Ohio-6044, appeal not allowed, 131 Ohio St.3d
1472, 2012-Ohio-896, 962 N.E.2d 804 [Fields III]. Muskingum County, Case No. CT 12-0030 4
{¶9} On March 5, 2012, appellant filed a Motion to Withdraw Plea which was
denied by the trial court on April 24, 2012.
{¶10} On May 7, 2012, the trial court resentenced appellant solely for the
purpose of advising appellant he was subject to a 3-year mandatory term of
postrelease control.
{¶11} Appellant filed two appeals, one from the judgment entry denying his
motion to withdraw his guilty plea and one from the judgment entry of resentencing.
We consolidated both appeals herein.
{¶12} Appellant raises two Assignments of Error:
{¶13} “I. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS
CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS
WHEN THE TRIAL COURT OVERRULED HIS MOTION TO WITHDRAW HIS PLEA.”
{¶14} “II. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS
WHEN THE TRIAL COURT RESENTENCED HIM TO A MANDATORY TERM OF
POST-RELEASE CONTROL WITHOUT AFFORDING HIM A DE NOVO HEARING
UNDER HB 86.”
I.
{¶15} In his first assignment of error, appellant argues the trial court violated
his state and federal due process rights when it denied his motion to withdraw his
guilty pleas because he was improperly advised of postrelease control in his original
plea colloquy on October 13, 2009. We disagree. Muskingum County, Case No. CT 12-0030 5
{¶16} Appellant’s March 5, 2012 “Motion for Leave to Withdraw Guilty Plea”
asserts his plea must be vacated because the trial court improperly advised him of a
period of post-release control of “up to three years” at his original plea hearing on
October 13, 2009. Appellant had the opportunity to litigate this claim in his original
direct appeal; his most recent round of argument is therefore barred under the
doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104
(1967). Res judicata bars the assertion of claims against a valid, final judgment of
conviction that have been raised or could have been raised on appeal. Id. “Ohio
courts of appeals have applied res judicata to bar the assertion of claims in a motion
to withdraw guilty plea that were or could have been raised on appeal. State v.
Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59, citations omitted.
In Fields I, we found the sentencing entry was neither illegal nor void because the trial
court completely explained the consequences of a violation of the terms of post-
release control, and appellant failed to demonstrate he would not have entered a plea
of guilty but for the statement at the sentencing hearing. State v. Fields, supra, 2010-
Ohio-6233 at ¶ 31. The trial court thus properly overruled appellant’s motion on the
basis of res judicata.
{¶17} Moreover, we note appellant was resentenced on May 7, 2012, and
properly advised of the mandatory 3-year period of postrelease control.
{¶18} Accordingly, appellant’s first assignment of error is overruled. Muskingum County, Case No. CT 12-0030 6
II.
{¶19} In his second assignment of error, appellant argues he was entitled to a
de novo sentencing hearing. We disagree.
{¶20} In State v. Fischer, the Ohio Supreme Court held the new sentencing
hearing to which an offender is entitled under Bezak [114 Ohio St.3d 94, 2007-Ohio-
3250, 868 N.E.2d 961] is limited to proper imposition of postrelease control. 128 Ohio
St.3d 92, 99, 2010-Ohio-6238, 942 N.E.2d 332. Appellant contends, however, that he
was resentenced before Fischer was decided and we should therefore apply the
reasoning of State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d
958, which would require the trial court to hold a de novo sentencing hearing. We
explicitly rejected a similar argument in State v. Kirkpatrick, 5th Dist. No. 10-CA-109,
2011-Ohio-4528.
{¶21} Other appellate courts have agreed Singleton has been effectively
overruled by Fischer, which “abrogates the offender’s entitlement to a de novo
sentencing hearing.” State v. Sanders, 11th Dist. No. 2011-P-0088, ¶ 15, citing State
v. Pesci, 11th Dist. No.2011–L–096, 2012–Ohio–3743, ¶ 9–11; State v. Reid, 2nd Dist.
No. 24841, 2012–Ohio–2666, ¶ 21; State v. Bunting, 5th Dist. Nos.2011 CA00112,
00130, and 00131, 2012–Ohio–445, ¶ 19–20; and State v. Deaver, 4th Dist. No.
10CA7, 2011–Ohio–1393, ¶ 6–9.
{¶22} We conclude, therefore, appellant is subject to Fischer and the trial court
did not err in resentencing him for the limited purpose of correctly advising him of the
mandatory 3-year term of postrelease control. Appellant’s second assignment of error
is overruled. Muskingum County, Case No. CT 12-0030 7
{¶23} Having overruled both of appellant’s assignments of error, we therefore
affirm the judgments of the Muskingum County Court of Common Pleas.
By: Delaney, P.J.
Farmer, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE
PAD:kgb [Cite as State v. Fields, 2012-Ohio-6086.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : GERALD D. FIELDS : : : Consolidated Case Nos. CT 12-0028 & CT 12-0030 Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgments of the
Muskingum County Court of Common Pleas are affirmed. Costs assessed to
Appellant.