State v. Oweis

2013 Ohio 1998

• Court: Ohio Court of Appeals
• Decided: May 8, 2013
• Docket: 12 CAA 04 0032
• Status: Published

Opinion

[Cite as State v. Oweis, 2013-Ohio-1998.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J. -vs- : : Case No. 12 CAA 04 0032 OSAMA J. OWEIS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 06CR-I-11-0513

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: May 8, 2013

APPEARANCES:

For Appellant: For Appellee:

WILLIAM T. CRAMER CAROL HAMILTON O’BRIEN 470 Olde Worthington Road, Suite 200 DELAWARE CO. PROSECUTOR Westerville, OH 43082 BRIAN J. WALTER 140 North Sandusky St. Delaware, OH 43015 Delaney, P.J.

{¶1} Appellant Osama Oweis appeals from the March 28, 2012 Amended

Judgment Entry on Sentence Pursuant to Remand of the Delaware County Court of

Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} A statement of the facts underlying appellant’s convictions is not

necessary to our disposition of this appeal.

{¶3} On August 10, 2007, appellant was convicted by jury upon one count of

aggravated robbery pursuant to R.C. 2911.01(A)(1), a felony of the first degree; one

count of grand theft pursuant to R.C. 2913.02(A)(1), a felony of the fifth degree; and

two counts of kidnapping pursuant to R.C. 2905.01(A)(2), both felonies of the second

degree.

{¶4} Appellant was sentenced on October 1, 2007.1 Based on sentencing

memoranda submitted by the parties, the trial court did not sentence appellant upon

the aggravated robbery conviction. However, the trial court sentenced appellant to a

total of 17 years in prison on the kidnapping and grand theft convictions. The trial court

informed appellant at the sentencing hearing and journalized in the sentencing entry

that as part of his sentence, post-release control was discretionary for up to 3 years.

{¶5} On July 15, 2010, the trial court filed a Nunc Pro Tunc Judgment Entry

on Sentence pursuant to State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330. The

judgment entry corrected the October 1, 2007 sentencing entry as to the term of

appellant's post-release control (“PRC”) and stated appellant was subject to a

1 We affirmed appellant’s conviction in his first direct appeal, State v. Oweis, 5th Dist. No. 07 CAA 10 0051, 2008-Ohio-4698. mandatory term of PRC of three years. See R.C. 2967.28(B)(2). The trial court did not

conduct a resentencing hearing before issuing the judgment entry.

{¶6} Appellant thereupon appealed to this Court. On March 30, 2011, we

reversed and remanded for a resentencing hearing regarding the trial court's nunc pro

tunc entry of July 15, 2010. State v. Oweis, 5th Dist. No. 10 CAA 08 0060, 2011-Ohio-

1620.

{¶7} On May 4, 2011, the trial court conducted a resentencing hearing

pursuant to our remand. On May 12, 2011, the trial court issued an entry sentencing

appellant to eight years in prison on each of the two kidnapping counts, to be served

consecutively to each other. As to the theft count, the trial the court sentenced

appellant to serve twelve months in prison, to be served concurrent to the kidnapping

counts. Thus, appellant's original sentence from October 1, 2007 was reduced by one

year to a total of 16 years.

{¶8} Appellee appealed the resentencing, arguing the trial court erred in

reconsidering the terms of appellant’s original sentence when it conducted a PRC

resentencing hearing. Appellant cross-appealed, asserting the trial court erred and

deprived him of due process of law by ordering consecutive sentences upon the

kidnapping convictions, which he maintained involved no separate animus. We

agreed with appellee, disagreed with appellant, and therefore affirmed the trial court’s

judgment in part but reversed in part. State v. Oweis, 5th Dist.No. 11CAA060050,

2012-Ohio-443. We remanded the matter to the trial court “for correction of appellee’s

sentence to seventeen years.” Id., at ¶ 19. {¶9} On March 23, 2012, the trial court held a resentencing hearing pursuant

to the remand order and re-imposed appellant’s 17-year sentence.

{¶10} Appellant now appeals from the trial court’s resentencing entry of March

28, 2012.

ASSIGNMENT OF ERROR

{¶11} Appellant raises one Assignment of Error:

{¶12} “I. APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS

TO DUE PROCESS AND PROTECTIONS FROM DOUBLE JEOPARDY WERE

VIOLATED WHEN THE COURT IMPOSED MULTIPLE SENTENCES FOR ALLIED

OFFENSES IN VIOLATION OF R.C. 2941.25.”

ANALYSIS

{¶13} Appellant argues his convictions upon one count of grand theft and two

counts of kidnapping should merge for purposes of sentencing, and that the question

of merger should not be barred by res judicata. We disagree.

{¶14} As appellant acknowledges, the threshold issue in this appeal is the

application of res judicata. Upon cross-appeal in State v. Oweis, 5th Dist. No.

11CAA060050, 2012-Ohio-443, supra, appellant raised a similar argument to his

argument sub judice: the trial court erred and denied him due process of law by

ordering consecutive sentences for each kidnapping offense because each did not

involve a separate animus. We held, though, that “* * * the issue of merger of allied

offenses was barred by res judicata on a defendant’s appeal from resentencing to

impose post-release control because the issue did not arise from the resentencing hearing.” Id., ¶ 16, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942

N.E.2d 332 and State v. Franklin, 8th Dist. No. 95991, 2011-Ohio-4953.

{¶15} Similarly, in the case sub judice we find appellant’s challenge to

consecutive sentences for grand theft and kidnapping to be barred because the issue

is beyond the “confines of PRC resentencing.” State v. Oweis, supra, 2012-Ohio-443

at ¶ 17. See, State v. Millette, 5th Dist. No. 11-CA-23, 2011-Ohio-6357, appeal not

allowed, 131 Ohio St.3d 1554, 2012-Ohio-2263, 967 N.E.2d 765.

{¶16} Appellant urges us to find that the trial court’s failure to merge the grand

theft and kidnapping convictions for sentencing purposes resulted in a void sentence

to which the doctrine of res judicata does not apply, but we reject this argument (as we

have in appellant’s prior appeal). In Fischer, the Ohio Supreme Court further

determined that the doctrine of 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.” Fischer, supra, paragraph three of the syllabus. We find this

applicable to the allied-offenses argument that appellant now raises, which could have

been raised in his original direct appeal. Thus, res judicata bars consideration of this

issue in this appeal. CONCLUSION

{¶17} For the foregoing reasons, appellant’s sole assignment of error is

overruled and the judgment of the Delaware County Court of Common Pleas is

affirmed.

By: Delaney, P.J.

Hoffman, J. and

Farmer, J. concur.

HON. PATRICIA A. DELANEY

HON. WILLIAM B. HOFFMAN

HON. SHEILA G. FARMER

PAD:kgb IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

: STATE OF OHIO : : Plaintiff - Appellee : JUDGMENT ENTRY : -vs- : : OSAMA OWEIS : Case No. 12 CAA 04 0032 : Defendant - Appellant : : :

For the reasons stated in our accompanying Opinion on file, the judgment of the

Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant.