State v. Davis , 2012 Ohio 4559 ( 2012 )

[Cite as State v. Davis, 2012-Ohio-4559.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 11 MA 204
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
LAWRENCE DAVIS )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 05 CR 193
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Lawrence Davis, Pro se
#494-988
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: September 25, 2012
[Cite as State v. Davis, 2012-Ohio-4559.]
WAITE, P.J.
{¶1} Appellant Lawrence Davis is appealing his felony sentence after the
matter was once before remanded so that the trial court could add the proper
language to the sentencing judgment entry regarding post-release control. We
instructed the trial court to include post-release control language in the amended
judgment entry, and the court complied with this mandate on remand. State v. Davis,
7th Dist. No. 10 MA 160, 2011-Ohio-6025, ¶14. The case was not remanded for a
resentencing hearing or to modify any other part of the sentence. Because the
sentencing judgment entry is now correct and there was no other matter before the
trial court, there can be no appealable error now before us. The judgment of the trial
court is affirmed.
{¶2} In March of 2005, Appellant was indicted on five counts of drug
trafficking. In December, 2005, he was convicted and sentenced to eleven years in
prison. The convictions were partially reversed on appeal, and his sentence was
reduced to eight years. State v. Davis, 7th Dist. No. 05 MA 235, 2007-Ohio-7216.
On February 17, 2011, Appellant filed a motion to vacate his sentence because the
trial court failed to include proper language in the sentencing entry regarding post-
release control. Appellant also requested a new sentencing hearing. We held that
Appellant had been notified of post-release control at the sentencing hearing, but that
the language in the sentencing judgment entry did not provide sufficient notice of
post-release control to comply with the sentencing statutes. We modified the
sentence to include the proper language, remanded the matter for the sole purpose
of issuing a new sentencing judgment entry, but specifically held that no new
sentencing hearing was required. Appellant filed an appeal to the Ohio Supreme
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Court, but his appeal was not accepted. State v. Davis, 131 Ohio St.3d 1485, 2012-
Ohio-1143, 963 N.E.2d 825. The trial court added the corrected post-release control
language to the judgment entry and filed it on November 29, 2011. This appeal
followed.
ASSIGNMENT OF ERROR NO. 1
TRIAL COURT ABUSED ITS DISCRETION AND WAS PATENTLY
AND UNAMBIGOUSLY [SIC] WITHOUT JURISDICTION TO REVISE
OR NUN PRO TUNC ITS ORIGINAL SENTENCING JOURNAL
ENTRY.
{¶3} Appellant argues that the trial court did not have jurisdiction to correct
his sentencing entry on remand from this Court. Appellant is incorrect in this
argument. We gave the trial court jurisdiction to make the correction to the
sentencing entry when we remanded the case for that sole purpose. Appellant
appears to be arguing that we misapplied the holding of State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, and that the appropriate solution should
have been to require the trial court to hold a new sentencing hearing. Appellant
made this argument in his prior appeal, and it was rejected. Davis, 7th Dist. No. 10
MA 160, 2011-Ohio-6025, ¶13. Our interpretation of Fischer is that a court of
appeals may directly modify a sentence to include post-release control language (if
the defendant was properly notified of post-release control at the sentencing hearing,
which Appellant acknowledges is the case), and that the trial court must correct the
sentencing entry accordingly. Appellant apparently does not agree with this
conclusion. While he attempted a further appeal to the Ohio Supreme Court, the
appeal was not accepted for review. Our holding is now the law of the case and is
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not subject to further review. The law-of-the-case doctrine holds that “ ‘the decision
of a reviewing court in a case remains the law of that case on the legal questions
involved for all subsequent proceedings in the case at both the trial and reviewing
levels.’ ” Fischer at ¶33, quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410(1984). Therefore, Appellant's first assignment of error is without merit and is
overruled.
ASSIGNMENT OF ERROR NO. 2
TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED
DEFENDANT TO A CONSECUTIVE PRISON TERM, BASED UPON
DEFENDANT HAVING COMMITTED THE OFFENSE WHILE ON
PROBATION, WHEN DEFENDANT WAS NOT ON PROBATION AT
THE TIME OF THE OFFENSE.
{¶4} Appellant contends that he was incorrectly sentenced to a consecutive
prison term because the trial court believed that he was on probation when he
committed the offenses. Appellant asserts that he was not on probation at the time.
Appellant was required to raise this error in his earlier direct appeal and the matter is
now res judicata. The doctrine of res judicata establishes that “a final judgment of
conviction bars a convicted defendant who was represented by counsel from raising
and litigating in any proceeding except an appeal from that judgment, any defense or
any claimed lack of due process that was raised or could have been raised by the
defendant at the trial, which resulted in that judgment of conviction, or on an appeal
from that judgment.” (Emphasis deleted.) State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967), paragraph nine of the syllabus. Appellant litigated a direct appeal
in which he challenged his conviction and sentence on a variety of grounds. He did
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not, however, argue that there was error in his sentence due to a mistake regarding
his probation status. As Appellant could have raised this issue in the prior appeal, he
is now prohibited from raising it in any subsequent appeal. Appellant's assignment of
error is without merit.
{¶5} In conclusion, Appellant's two challenges to his sentence are not
persuasive. In a prior appeal, we ordered the trial court to include proper post-
release control language as part of Appellant’s sentence. The trial court had
jurisdiction to issue a corrected sentencing judgment entry pursuant to our mandate
when the case was remanded to the trial court. Any objection Appellant raises as to
our remedy in the prior appeal was a matter for review by the Ohio Supreme Court.
The Court did not accept his case for review. The trial court corrected the judgment
entry. Appellant was not entitled to a resentencing hearing or to any other
modification of his sentence. The second alleged error, dealing with consecutive
sentences, is barred by the doctrine of res judicata. Appellant could have raised this
matter in his first appeal and he did not. The judgment of the trial court is hereby
affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.