State v. Petty

2011 Ohio 2985

• Court: Ohio Court of Appeals
• Decided: June 15, 2011
• Docket: 10CA9
• Status: Published

Opinion

[Cite as State v. Petty, 2011-Ohio-2985.]

COURT OF APPEALS RICHLAND 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- : : BRODERICK PETTY : Case No. 10CA9 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 05CR331D

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 15, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DANIEL J. BENOIT RANDALL E. FRY 38 South Park Street 10 West Newlon Place Second Floor Mansfield, OH 44902 Mansfield, OH 44902 Richland County, Case No. 10CA9 2

Farmer, J.

{¶1} On December 15, 2009, the trial court resentenced appellant, Broderick

Petty, pursuant to a remand citing State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250.

See, State v. Petty (2009), 121 Ohio St.3d 607. The trial court sentenced appellant to

the same aggregate original sentence, and ordered that appellant would not serve any

post-release control time.

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

consideration. Assignments of error are as follows:

I

{¶3} "THE COURT ERRED TO THE DEFENDANT-APPELLANT'S

PREJUDICE BY FAILING TO CONSIDER THE FACTORS OF ORC 2929.11 AND

2929.12 IN RE-SENTENCING THE DEFENDANT."

II

{¶4} "THE TRIAL COURT WAS DEPRIVED OF JURISDICTION TO

SENTENCE THE DEFENDANT-APPELLANT AS THERE WAS AN UNJUSTIFIED AND

SUBSTANTIAL DELAY BETWEEN THE FINDING OF GUILT AND THE

SENTENCING."

III

{¶5} "THE TRIAL COURT ERRED WHEN IN THE RE-SENTENCING ENTRY

OF JUNE 29, 2009, IT RE-SENTENCED THE DEFENDANT-APPELLANT TO ONE

YEAR OF PRISON FOR COUNT I OF POSSESSION OF CRACK COCAINE." Richland County, Case No. 10CA9 3

I, II, III

{¶6} Appellant claims the trial court erred in failing to consider certain statutory

factors in resentencing him, there was an unjustified and substantial delay in sentencing

him, and the trial court erred in resentencing him to a sentence he already served. We

disagree.

{¶7} In this case, appellant was given a de novo hearing for resentencing under

Bezak, supra. In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, syllabus, the

Supreme Court of Ohio limited the nature of the de novo hearing as follows:

{¶8} "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.

{¶9} "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.)

{¶10} "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.

{¶11} "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."

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

sentencing hearing "is limited to proper imposition of postrelease control." Upon review,

we find the trial court sub judice did not impose any post-release control time and Richland County, Case No. 10CA9 4

properly notified appellant of such. June 29, 2009 T. at 9; 2nd Amended Sentencing

Entry filed December 15, 2009. The one year sentence on the possession count was

merely re-imposed, regardless of whether appellant already served the time.

{¶13} As for the delay in filing the sentencing entry, the new sentence was

exactly the same as the original, but for the lack of any post-release control time.

Therefore, appellant has suffered no prejudice.

{¶14} Assignments of Error I, II, and III are denied.

{¶15} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Wise, J. concur.

_s/ Sheila G. Farmer__________________

_s/ Patricia A. Delaney________________

_s/ John W. Wise___________________

JUDGES

SGF/sg 601

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : BRODERICK PETTY : : Defendant-Appellant : CASE NO. 10CA9

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

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to

appellant.

s/ Sheila G. Farmer__________________