State v. Myers

2012 Ohio 660

• Court: Ohio Court of Appeals
• Decided: February 15, 2012
• Docket: 11-CA-7
• Status: Published

Opinion

[Cite as State v. Myers, 2012-Ohio-660.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 11-CA-7 CRISTEN L. MYERS, SR. : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Perry County Court of Common Pleas Case No. 00-CR-6996

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: February 15, 2012

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JOSEPH A. FLAUTT STEVEN P. SCHNITTKE Prosecuting Attorney Schnittke and Smith 111 North High Street 114 South High Street New Lexington, Ohio 43764 New Lexington, Ohio 43764 [Cite as State v. Myers, 2012-Ohio-660.]

Delaney, J.

{¶1} Defendant-Appellant Cristen L. Myers appeals the decision of the Perry

County Court of Common Pleas following a resentencing hearing to correct the

imposition of postrelease control.

{¶2} In 2001, Appellant was convicted by a jury for one count of attempted

murder, one count of aggravated burglary, one count of felonious assault and one count

of violating a protection order. By judgment entry of sentence filed March 13, 2001, the

trial court sentenced appellant to an aggregate term of twenty years in prison. By

judgment entry of resentence filed July 13, 2001, Appellant was resentenced in order to

include the findings necessary to impose consecutive sentences. The entry stated that

the trial court notified Appellant that postrelease control up to three years was

mandatory in this case. Appellant’s convictions and sentences were affirmed on

appeal. State v. Myers, 5th Dist. No. 01-CA-5, 2002-Ohio 253.

{¶3} On May 22, 2009, Appellant filed a motion to void the unexpired term of

incarceration and for resentencing to correct the error in the July 13, 2001 entry he was

subject to only three years of postrelease control instead of the mandatory five years.

By entry filed June 24, 2009, the trial court denied Appellant’s request to void the

unexpired term of incarceration. By nunc pro tunc judgment entry of resentence filed

July 10, 2009, the trial court corrected the error.

{¶4} Appellant appealed the nunc pro tunc judgment entry. In State v. Myers, 5

th Dist. No. 10-CA-4, 2010-Ohio-5979, (“Myers II”) this Court found the trial court erred

in filing a nunc pro tunc entry and resentencing Appellant without a hearing. The matter Perry County, Case No. 11-CA-7 3

was remanded to the trial court for a de novo hearing, citing State v. Bezak, 114 Ohio

St.3d 94, 2007-Ohio-3250 and State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085.

{¶5} A resentencing hearing on the matter of postrelease control was held on

March 3, 2011. By entry filed March 29, 2011, the trial court notified Appellant that

postrelease control of five years was mandatory in this case, as well as the

consequences of violating condition of postrelease control imposed by the Parole

Board.

{¶6} Appellant timely appealed the resentencing entry.

{¶7} Appellant raises seven Assignments of Error:

{¶8} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING

DEFENDANT/APPELLANT TO CONSECUTIVE SENTENCES FOR THE

CONVICTIONS OF ATTEMPTED MURDER (ORC 2903.02(A) AND FELONIOUS

ASSULT (ORC 2903.11(A) AS SAID CRIMES ARE ALLIED OFFENSES OF SIMILAR

IMPORT.

{¶9} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING

CONVICTIONS OF FELONIOUS ASSAULT (ORC 2903.11(A)(1) AND ATTEMPTED

MURDER (ORC 2903.02(A)(1) AS SAID CRIMES ARE ALLIED OFFENSES OF

SIMILAR IMPORT.

{¶10} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

DISREGARDING THE MANDATE OF THE FIFTH DISTRICT COURT OF APPEALS

WHICH VACATED DEFENDANT/APPELLANT’S SENTENCE WITH REMAND FOR A

DE NOVO RE-SENTENCING HEARING, CREATING AN INJUSTICE. Perry County, Case No. 11-CA-7 4

{¶11} “IV. THE TRIAL COURT WAS IN ERROR WHEN IT APPLIED THE

PRINCIPLE OF RES JUDICATA TO BAR THE APPLICATION OF THE NEW

SUBSTANTIVE INTERPRETATION ANNOUNCED IN STATE V JOHNSON, 124 OHIO

ST. 3D 153.

{¶12} “V. THE MITTIMUS ISSUED BY THE COMMON PLEAS COURT OF

PERRY COUNTY, OHIO FOLLOWING THE MARCH 3, 2011 RESENTENCING

HEARING IS VOID AND INSUFFICIENT TO WARRANT THE DETENTION OF

CRISTEN L. MYERS, SR.

{¶13} “VI. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANT/APPELLANT BY EXCEEDING ITS JURISDICTIONAL AUTHORITY

WHEN IMPOSED CONSECUTIVE SENTENCES IN THE ABSENCE OF STATUTORY

AUTHORITY.

{¶14} “VII. THE CONSECUTIVE SENTENCE IMPOSED BY TRIAL COURT IS

VIOLATIVE OF THE DEFENDANT/APPELLANT’S LIBERTY INTEREST PROTECTED

BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION.

{¶15} At the outset, it must be noted that shortly after our opinion was issued in

Myers II, the Ohio Supreme Court rendered its decision in State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238. In Fischer, the Court clarified that a new sentencing hearing

to which an offender is entitled under Bezak, supra, is limited to the proper imposition of

postrelease control. Id. at syllabus two. The Court also stated that res judicata applies

to all other aspects of the merits of the conviction, including the determination of guilt

and the lawful elements of the ensuing sentence. Id. at syllabus three. Perry County, Case No. 11-CA-7 5

{¶16} The record in this case demonstrates that the trial court properly followed

the law established by Fischer and limited Appellant’s rehearing to the imposition of

postrelease control, rather than conducting a de novo hearing as instructed by this

Court on remand.

{¶17} On appeal, Appellant raises matter pertaining to the merger of allied

offenses, the propriety of consecutive sentences and validity of the underlying prison

sentence. The trial court did not address these issues at rehearing, nor are they

address in the entry filed March 29, 2011.

{¶18} In addition, Fischer further instructs that “[t]he 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.

{¶19} Accordingly, Appellant’s assignments of error are overruled in total.

{¶20} The judgment of the Perry County Court of Common Pleas is affirmed.

By: Delaney, J.

Gwin, P.J. and

Wise, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. JOHN W. WISE [Cite as State v. Myers, 2012-Ohio-660.]

IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : CRISTEN L. MYERS, SR. : : Defendant-Appellant : Case No. 11-CA-7 :

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Perry County Court of Common Pleas is affirmed. Costs assessed to

Appellant.

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JOHN W. WISE