State v. Kirkpatrick ( 2011 )

[Cite as State v. Kirkpatrick, 2011-Ohio-4528.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
CHRISTOPHER A. KIRKPATRICK
Defendant-Appellant
: JUDGES:
: W. Scott Gwin, P.J.
: John W. Wise, J.
: Julie A. Edwards, J.
:
: Case No. 10-CA-109
:
:
: OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from Licking County
Court of Common Pleas Case No.
02-CR-009
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 6, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT ERIC BREHM
Licking County Prosecutor 604 E. Rich Street, Suite 2100
Columbus, Ohio 43215
BY: TRACY F. VAN WINKLE
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Edwards, J.
{¶1} Appellant, Christopher Kirkpatrick, appeals a judgment of the Licking
County Common Pleas Court resentencing him to five consecutive terms of
incarceration of three years and notifying him that upon his release he will be subject to
a mandatory term of postrelease control (PRC) of five years. Appellee is the State of
Ohio.
STATEMENT OF FACTS AND CASE
{¶2} Appellant pleaded guilty to five counts of sexual battery (R.C.
2907.03(A)(5)) in 2002. On February 25, 2002, he was sentenced to five consecutive
terms of three years incarceration. Following a hearing, he was found to be a sexual
predator. Counsel for appellant filed an Anders brief with this Court, and we affirmed
the decision of the trial court. State v. Kirkpatrick, Licking App. No. 02-CA-25, 2003-
Ohio-1192.
{¶3} On June 7, 2010, appellant filed a motion to impose a valid sentence. On
June 21, 2010, the State moved to resentence appellant to add the mandatory term of
five years PRC.
{¶4} The case came before the trial court on August 3, 2010, for a resentencing
hearing. The trial court found appellant’s previously imposed sentence to be void and
ordered a new presentence investigation.
{¶5} The case again came before the court for a hearing on September 3,
2010. The State asked the court to reimpose the original sentence, plus the mandatory
term of PRC. Appellant’s counsel offered evidence in mitigation of sentence and
appellant spoke in allocution. Following the hearing, the court imposed the original
sentence, adding the term of five years PRC.
{¶6} Appellant assigns three errors on appeal:
{¶7} “I. THE TRIAL COURT DID ERR BY LABELING THE APPELLANT AS A
SEXUAL PREDATOR WITHOUT CONDUCTING A HEARING.
{¶8} “II. THE TRIAL COURT DID ERR BY IMPOSING A SENTENCE THAT IS
NOT CONSISTENT WITH SENTENCES IMPOSED FOR SIMILAR CRIMES
COMMITTED BY SIMILAR OFFENDERS.
{¶9} “III. THE TRIAL COURT DID ERR BY IMPOSING CONSECUTIVE
SENTENCES.”
I, II, III
{¶10} We address all three assignments of error together.
{¶11} In State v. Singleton, 124 Ohio St. 3d 173, 920 N.E.2d 958, 2009–Ohio–
6434, the Supreme Court of Ohio held the following at paragraph one of the syllabus:
{¶12} “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.”
{¶13} 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, 128 Ohio St. 3d 92, 942
N.E.2d 332, 2010–Ohio–6238, the Supreme Court of Ohio limited the nature of the de
novo hearing:
{¶14} “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.
{¶15} “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.)
{¶16} “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.
{¶17} “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.”
{¶18} As stated by the Fischer court in paragraph two of the syllabus, the new
sentencing hearing “is limited to proper imposition of postrelease control.” None of
appellant’s assignments of error relate to the imposition of postrelease control and they
are therefore barred by res judicata pursuant to Fischer. Pursuant to Fischer, which
was decided by the Ohio Supreme Court after the trial court’s resentencing hearing in
the instant case, the trial court erred in conducting a new sentencing hearing on the
entire sentence rather than only the void portion of the sentence concerning PRC.
However, any error is harmless as the trial court imposed the same sentence as
appellant originally received in 2002.
{¶19} Appellant’s first, second and third assignments of error are overruled.
{¶20} The judgment of the Licking County Common Pleas Court is affirmed.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0629
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
CHRISTOPHER A. KIRKPATRICK :
:
Defendant-Appellant : CASE NO. 10-CA-109
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to
appellant.
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JUDGES