State v. Wheeler , 2011 Ohio 1521 ( 2011 )


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  • [Cite as State v. Wheeler, 
    2011-Ohio-1521
    .]
    STATE OF OHIO                     )                   IN THE COURT OF APPEALS
    )ss:                NINTH JUDICIAL DISTRICT
    COUNTY OF SUMMIT                  )
    STATE OF OHIO                                         C. A. No.    25183
    Appellee
    v.                                            APPEAL FROM JUDGMENT
    ENTERED IN THE
    RAFFAEL DION WHEELER                                  COURT OF COMMON PLEAS
    aka STANLEY                                           COUNTY OF SUMMIT, OHIO
    CASE No.   CR 03 08 2421
    Appellant
    DECISION AND JOURNAL ENTRY
    Dated: March 30, 2011
    DICKINSON, Presiding Judge.
    INTRODUCTION
    {¶1}     Raffael Wheeler pleaded guilty in 2003 to counts of aggravated robbery and
    possession of cocaine, and the trial court sentenced him to eight years in prison. Mr. Wheeler
    did not appeal, but in 2008, he moved for resentencing, arguing that the trial court had not
    properly imposed post-release control. The trial court denied his motion, but this Court reversed,
    vacated Mr. Wheeler’s sentence, and remanded for resentencing. On remand, Mr. Wheeler
    moved to dismiss his case, arguing that his indictment was defective because it was not properly
    signed. The trial court denied his motion and resentenced him to eight years in prison. Mr.
    Wheeler has appealed the denial of his motion to dismiss. We affirm because Mr. Wheeler’s
    argument is barred by res judicata.
    2
    UNSIGNED INDICTMENT
    {¶2}    Mr. Wheeler’s assignment of error is that the trial court incorrectly denied his
    motion to dismiss. He has argued that his indictment was defective under Rule 6(F) of the Ohio
    Rules of Criminal Procedure, which requires “the foreman or deputy foreman [of the Grand Jury
    to] sign the indictment . . . .” See also Crim. R. 7(B) (“The indictment shall be signed in
    accordance with Crim.R. 6(C) and (F)[.]”).
    {¶3}    The State has argued that Mr. Wheeler’s argument is barred because he did not
    appeal the trial court’s 2003 sentencing entry. The Ohio Supreme Court has held that “[a]
    defendant who enters a voluntary plea of guilty while represented by competent counsel waives
    all nonjurisdictional defects in prior stages of the proceedings.” Ross v. Common Pleas Court of
    Auglaize County, 
    30 Ohio St. 2d 323
    , 324 (1972) (quoting Crockett v. Haskins, 
    372 F.2d 475
    ,
    476 (6th Cir. 1966)). The Supreme Court has also held that a grand jury foreperson’s failure to
    sign an indictment is not jurisdictional error. VanBuskirk v. Wingard, 
    80 Ohio St. 3d 659
    , 660
    (1998); Kroger v. Engle, 
    53 Ohio St. 2d 165
    , 165 (1978).
    {¶4}    Mr. Wheeler has argued that, because the trial court’s original sentencing entry
    was void, this appeal is his first direct appeal. He has argued that he, therefore, did not forfeit
    the defect in his indictment.
    {¶5}    In light of recent Ohio Supreme Court precedent, we conclude that Mr. Wheeler is
    incorrect. In State v. Bezak, 
    114 Ohio St. 3d 94
    , 
    2007-Ohio-3250
    , the Ohio Supreme Court held
    that, “[w]hen a defendant is convicted of or pleads guilty to one or more offenses and postrelease
    control is not properly included in a sentence for a particular offense, the sentence for that
    offense is void. The offender is entitled to a new sentencing hearing for that particular offense.”
    
    Id.
     at syllabus. Following the Supreme Court’s logic, this Court subsequently determined that,
    3
    “regardless of whether a defendant has already appealed his conviction, if the order from which
    the first appeal was taken is not final and appealable, he is entitled to a new sentencing entry
    which can itself be appealed.” State v. Harmon, 9th Dist. No. 24495, 
    2009-Ohio-4512
    , at ¶6. In
    State v. Fischer, 
    128 Ohio St. 3d 92
    , 
    2010-Ohio-6238
    , however, the Ohio Supreme Court
    modified its holding in Bezak. Id. at ¶27. The Supreme Court clarified that, “when a judge fails
    to impose statutorily mandated postrelease control as part of a defendant’s sentence, that part of
    the sentence is void and must be set aside.” Id. at ¶26. “[R]es judicata still applies to other
    aspects of the merits of [the] conviction, including the determination of guilt and the lawful
    elements of the ensuing sentence.” Id. at paragraph three of the syllabus. The only issues a
    defendant can raise on appeal after the resentencing hearing to correctly impose post-release
    control are “issues arising at the resentencing hearing.” Id. at paragraph four of the syllabus.
    {¶6}    Applying Fischer, we conclude that Mr. Wheeler’s argument is barred by res
    judicata. Specifically, he could have raised the alleged defect with his indictment on direct
    appeal from the 2003 sentencing entry. See State v. Rexroad, 9th Dist. No. 22214, 2004-Ohio-
    6271, at ¶8 (“That a defendant failed to directly appeal from his conviction and sentence does not
    prevent the application of the doctrine of res judicata.”). Mr. Wheeler’s assignment of error is
    overruled.
    CONCLUSION
    {¶7}    The trial court correctly denied Mr. Wheeler’s motion to dismiss. The judgment
    of the Summit County Common Pleas Court is affirmed.
    Judgment affirmed.
    4
    There were reasonable grounds for this appeal.
    We order that a special mandate issue out of this Court, directing the Court of Common
    Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
    of this journal entry shall constitute the mandate, pursuant to App.R. 27.
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
    period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
    instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
    mailing in the docket, pursuant to App.R. 30.
    Costs taxed to Appellant.
    CLAIR E. DICKINSON
    FOR THE COURT
    WHITMORE, J.
    CONCURS
    BELFANCE, J.
    CONCURS IN JUDGMENT ONLY, SAYING:
    {¶8}    The main opinion follows the spirit of the holdings of State v. Fischer, 
    128 Ohio St.3d 92
    , 
    2010-Ohio-6238
    . Nonetheless, I reluctantly concur.
    {¶9}    I write separately to note a recurring problem that has arisen that is not explicitly
    resolved by Fischer.     Specifically, what legal course should this Court take when it has
    previously applied the precedents preceding Fischer?           In following the then valid and
    unqualified Supreme Court precedent, this Court vacated numerous sentencing entries,
    5
    concluding they were void for errors in post-release control notification. See, e.g., State v.
    Moton, 9th Dist. No. 24262, 
    2009-Ohio-4169
    , at ¶¶4-6. Given the vacation of the original
    judgment, it would not be illogical or legally unsound for an appellant who is now appealing
    from the de novo sentencing entry to assume that the appellate court would consider the merits of
    his or her arguments; after all, the new sentencing entry would be the only final judgment in the
    record on the matter and under the law, it would seem that the appellant would be legally entitled
    to pursue an appeal from the only existing judgment of record in the matter. This would equally
    apply even if the appellant had already had an appeal from the now non-existent original
    sentencing entry, or if the appellant could have appealed the now non-existent original
    sentencing entry and chose not to do so since the appellant’s original sentence was vacated.
    {¶10} Yet, the Fischer Court has held that appellants who were improperly informed of
    their post-release control obligations only get one bite at the appellate apple concerning “the
    determination of guilt and the lawful elements of the ensuing sentence.” Fischer at ¶40. Clearly,
    in light of Fischer, this Court would not now vacate a sentence for an error in post-release
    control notification. Fischer provides that such sentences are only partially void and are not
    subject to de novo resentencing. Fischer at paragraph two of the syllabus, ¶26. However, we
    still cannot escape the fact that we did vacate these sentences and Fischer does not address this
    specific issue. Thus, this Court is faced with the quandary of how to apply Fischer while still
    addressing the legal consequences of this Court having applied the law in effect prior to Fischer.
    {¶11} In doing so, this Court has sometimes chosen to acknowledge the legal reality of
    what happened, i.e. that we vacated the appellant’s sentence, and the legal consequences
    associated therewith. See State v. Wilborn, 9th Dist. No. 25352, 
    2011-Ohio-1038
    , at ¶7 (“Under
    Singleton and the recently decided State v. Fischer, 
    128 Ohio St. 3d 92
    , 
    2010-Ohio-6238
    , the
    6
    vacation of Mr. Wilborn’s sentence should have been limited to the improperly imposed post-
    release control, leaving the rest of the sentence intact. See Fischer, 
    2010-Ohio-6238
    , at ¶26-28;
    Singleton, 
    2010-Ohio-6434
    , at ¶24. Because we vacated his entire sentence, however, Mr.
    Wilborn’s motion to withdraw his guilty plea was a presentence motion. State v. Boswell, 
    121 Ohio St. 3d 575
    , 
    2009-Ohio-1577
    , syllabus.”); State v. Banks, 9th Dist. No. 25279, 2011-Ohio-
    1039, at ¶53, fn. 4 (noting that because we vacated Mr. Banks’ sentence, the trial court was
    correct in conducting a de novo sentencing hearing even despite the holding of Fischer).
    However, in this case, the main opinion does not directly address the fact that we vacated Mr.
    Wheeler’s sentence, albeit arguably doing so in accordance with the principles outlined in
    Fischer. It then proceeds to bar his arguments under res judicata despite the fact that Mr.
    Wheeler has no other final sentencing entry in the record on this matter but the one he now
    appeals.
    {¶12} As the Supreme Court has not provided guidance on this point and the view of the
    main opinion is in line with the Fischer Court’s holding which precludes multiple appeals on the
    merits unrelated to the imposition of post-release control at resentencing, I reluctantly concur.
    APPEARANCES:
    JEFFREY N. JAMES, Attorney at Law, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
    Prosecuting Attorney, for Appellee.
    

Document Info

Docket Number: 25183

Citation Numbers: 2011 Ohio 1521

Judges: Dickinson

Filed Date: 3/30/2011

Precedential Status: Precedential

Modified Date: 10/30/2014