State v. McPherson

2011 Ohio 1020

• Court: Ohio Court of Appeals
• Decided: March 7, 2011
• Docket: 10-CA-99
• Status: Published

Opinion

[Cite as State v. McPherson, 2011-Ohio-1020.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : CARY L. MCPHERSON, II : Case No. 10-CA-99 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 02CR025

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 7, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

TRACY F. VAN WINKLE WILLIAM T. CRAMER 20 South Second Street 470 Olde Worthington Road Fourth Floor Suite 200 Newark, OH 43055 Westerville, OH 43082 Licking County, Case No. 10-CA-99 2

Farmer, J.

{¶1} On January 18, 2002, the Licking County Grand Jury indicted appellant on

one count of gross sexual imposition in violation of R.C. 2907.05, one count of

importuning in violation of R.C. 2907.07, one count of attempted rape in violation of R.C.

2907.02 and R.C. 2923.02, one count of disseminating matter harmful to juveniles in

violation of R.C. 2907.31, and one count of rape in violation of R.C. 2907.02.

{¶2} On April 15, 2002, appellant pled guilty to the gross sexual imposition

count, and entered no contest Alford pleas to the remaining counts. The trial court

found appellant guilty of the additional counts. By judgment entry filed April 16, 2002,

the trial court sentenced appellant to an aggregate term of fifteen years in prison.

{¶3} On February 25, 2010, appellant filed a motion for resentencing, claiming

his original sentence was void because it failed to set forth mandatory postrelease

control time. A hearing was held on August 16, 2010. By nunc pro tunc judgment entry

filed same date, the trial court resentenced appellant to an aggregate term of fifteen

years in prison, and imposed five years of postrelease control.

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

consideration. Assignment of error is as follows:

I

{¶5} "THE TRIAL COURT ERRED BY FAILING TO HOLD A DE NOVO

RESENTENCING AS REQUIRED BY STATE V. BEZAK, 114 OHIO ST.3D 94, 2007-

OHIO-3250, 868 N.E.2D 961." Licking County, Case No. 10-CA-99 3

{¶6} Appellant claims the trial court erred in failing to hold a de novo

resentencing hearing. We disagree.

{¶7} 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:

{¶8} "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."

{¶9} 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, syllabus, the Supreme Court of Ohio limited the nature of the de novo

hearing:

{¶10} "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.

{¶11} "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.)

{¶12} "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. Licking County, Case No. 10-CA-99 4

{¶13} "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."

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

sentencing hearing is limited to the proper imposition of postrelease control. Upon

review, we find the trial court sub judice properly notified appellant of the mandatory five

year postrelease control requirement under R.C. 2967.28(B). T. at 18; Nunc Pro Tunc

Judgment Entry filed August 16, 2010.

{¶15} The sole assignment of error is denied.

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

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.

s/ Sheila G. Farmer__________________

_s/ William B. Hoffman_______________

_s/ Patricia A. Delaney_______________

JUDGES

SGF/sg 224 Licking County, Case No. 10-CA-99 5

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : CARY L. MCPHERSON, II : : Defendant-Appellant : CASE NO. 10-CA-99

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.