State v. Jenkins

2014 Ohio 3150

Opinion

[Cite as State v. Jenkins, 2014-Ohio-3150.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 14 CA 17 ISAAC JENKINS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 11 CR 334 D

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 17, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JAMES J. MAYER, JR. ISAAC JENKINS PROSECUTING ATTORNEY PRO SE JILL M. COCHRAN RICHLAND CORR. INSTITUTION ASSISTANT PROSECUTOR Post Office Box 8107 38 South Park Street Mansfield, Ohio 44901 Mansfield, Ohio 44902 [Cite as State v. Jenkins, 2014-Ohio-3150.]

Wise, J.

{¶1}. Defendant-Appellant Isaac Jenkins appeals the decision of the Court of

Common Pleas, Richland County, which denied his motion for resentencing regarding a

2012 felony conviction for drug possession and related charges. Appellee is the State of

Ohio. The relevant facts leading to this appeal are as follows.

{¶2}. On or about May 10, 2011, appellant presented a forged prescription for

Oxycodone at a Walgreen's pharmacy in Mansfield, Ohio. Based on this incident,

appellant was indicted by the Richland County Grand Jury on June 10, 2011, on one

count of forgery (R.C. 2913.31(A)(3)), a felony of the fifth degree; one count of illegal

processing of drug documents (R.C. 2925.23(B)(1)), a felony of the fifth degree (later

amended to a felony of the fourth degree); and one count of possession of Oxycodone

in an amount equal to or exceeding five times the bulk amount but less than fifty times

the bulk amount (R.C. 2925.11(A)), a felony of the second degree.

{¶3}. On September 6, 2012, appellant waived his right to a jury, and the trial

court conducted a bench trial. Appellant was thereupon found guilty and sentenced to

nine months in prison on Count I, twelve months in prison on Count II, and four years on

Count III. The sentences were ordered to be served concurrently, for a total sentence of

four years.

{¶4}. Appellant did not file a direct appeal of his conviction and/or sentence.

{¶5}. On February 3, 2014, appellant filed a pro se motion for resentencing,

citing State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238. In particular, appellant

maintained that he should have been afforded findings regarding his "more than

minimum" sentences. The State filed a response memorandum on February 12, 2014. Richland County, Case No. 14 CA 17 3

Appellant filed a reply memorandum on February 25, 2014. On that date, the trial court

issued a judgment entry overruling appellant's motion for resentencing.

{¶6}. Appellant filed a notice of appeal on March 12, 2014. He herein raises the

following sole Assignment of Error:

{¶7}. “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

FAILED TO RESENTENCE APPELLANT PURSUANT TO STATE V. FISCHER, 128

OHIO ST.3D 92.

I.

{¶8}. In his sole Assignment of Error, appellant contends the trial court erred in

overruling his motion for resentencing. We disagree.

{¶9}. In Fischer, supra, the Ohio Supreme Court held in pertinent part that "[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." Id., at paragraph one of

the syllabus.

{¶10}. In the case sub judice, appellant, in his motion for resentencing, did not

raise any issues pertaining to post-release control. Accordingly, we initially find his

reliance on Fischer to be without merit.

{¶11}. Turning to appellant's specific claim regarding his "more than minimum"

sentences, we note in State v. Foster (2006), 109 Ohio St.3d 1, the Ohio Supreme

Court held, under the United States Supreme Court's decisions in Apprendi v. New

Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, and Blakely v. Washington (2004), 542

U.S. 296, 124 S.Ct. 2531, that portions of Ohio's sentencing scheme were Richland County, Case No. 14 CA 17 4

unconstitutional because they required judicial fact finding before a defendant could be

sentenced to more than the minimum sentence, the maximum sentence, and/or

consecutive sentences. See State v. Mobley, Fairfield App.No. 07-CA-26, 2007-Ohio-

6101, ¶ 8. Therefore, in the initial post-Foster era, this Court consistently held that

judicial fact finding was not required before a trial court could impose non-minimum,

maximum or consecutive prison terms. See, e.g., State v. Williams, Muskingum App.

No. CT2009–0006, 2009–Ohio–5296, ¶ 19.

{¶12}. As a further development in this area, 2011 Am.Sub.H.B. No. 86, which

became effective on September 30, 2011, revived the language provided in former R.C.

2929.14(E) and moved it to R.C. 2929.14(C)(4); the General Assembly thus expressed

its intent to revive the statutory fact-finding provisions pertaining to the imposition of

consecutive sentences that were effective pre-Foster. See State v. Wells, Cuyahoga

App.No. 98428, 2013–Ohio–1179, ¶ 11.1 However, under H.B. 86, "*** the provisions

requiring findings for maximum and more than minimum sentences that the legislature

did not intend to revive were explicitly repealed." State v. White, 1st Dist. Hamilton No.

C-130114, 2013-Ohio-4225, ¶ 8.

{¶13}. Accordingly, assuming arguendo the doctrine of res judicata does not

apply against appellant, we find his sentence of September 12, 2012, was not only post-

Foster, but was also unaffected by H.B. 86. As such, appellant was not entitled in 2012

to statutory findings regarding his "more than minimum" sentences, and the trial court

properly denied his 2014 request for resentencing on that basis.

1 In addition, H.B. 86 reduced the maximum prison term for certain third-degree felonies; this aspect of the legislation is not pertinent to the present appeal. Richland County, Case No. 14 CA 17 5

{¶14}. Appellant's sole Assignment of Error is overruled.

{¶15}. For the foregoing reasons, the judgment of the Court of Common Pleas,

Richland County, Ohio, is hereby affirmed.

By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.

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