State v. Criswell , 2011 Ohio 5786 ( 2011 )

[Cite as State v. Criswell, 2011-Ohio-5786.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-110135
C-110286
Plaintiff-Appellee, : TRIAL NOS. B-9907155-B
B-9908329
vs. :
ANTHONY CRISWELL, :
O P I N I O N.
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: November 10, 2011
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Defendant-appellant Anthony Criswell was convicted in the case
numbered B-9908329 of preparation of cocaine for sale, in violation of former R.C.
2925.07, possession of cocaine for sale accompanied by a major-drug-offender
specification, and two counts of having a weapon while under a disability. The trial
court imposed the sentences for the preparation-of-cocaine charge and the weapons-
under-disability charges concurrent with the possession-of-cocaine charge, and
sentenced Criswell to 15 years’ incarceration.
{¶2} In a separate case numbered B-9907155-B, Criswell was convicted of
felonious assault accompanied by a firearm specification. The trial court then
imposed a ten-year prison term to be served consecutively to the 15-year prison term
imposed in the case numbered B-9908329.
{¶3} Criswell appealed his convictions to this court in the appeals
numbered C-000222, C-000229, and C-000230. This court vacated Criswell’s
weapons-under-disability convictions, and affirmed Criswell’s convictions in all
other respects.
{¶4} On October 7, 2010, Criswell filed a pro se motion to vacate a void
sentence, arguing that the trial court had failed to inform him of postrelease control.
Because neither of the judgment entries in Criswell’s cases mentioned postrelease
control, the trial court granted Criswell’s motion and held a hearing on the matter.
{¶5} At the hearing, the trial court indicated that Criswell’s convictions in
the case numbered B-9908329 for preparation of cocaine for sale and possession of
cocaine for sale should merge because they were allied offenses of similar import.
The trial court then merged those convictions for the purposes of sentencing, but
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OHIO FIRST DISTRICT COURT OF APPEALS
imposed the same overall 15-year sentence in that case. Criswell’s sentence in the
case numbered B-9907155-B remained the same. The trial court further notified
Criswell at the hearing that he faced a mandatory three-year period of postrelease
control in the case numbered B-9907155-B, and that he faced a mandatory five-year
period of postrelease control in the case numbered B-9908329. The judgment
entries also reflect this notification.
{¶6} Criswell now appeals, raising a single assignment of error. Criswell
contends that the trial court failed to consider the principles and purposes of
sentencing pursuant to R.C. 2929.11 and 2929.12, and that the trial court abused its
discretion in imposing the sentence in the case numbered B-9907155-B consecutively
to the sentence imposed in the case numbered B-9908329.
{¶7} Pursuant to the Ohio Supreme Court’s decision in State v. Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraphs one and two of the
syllabus, if a trial court fails to properly notify a defendant of postrelease control,
then that part of the defendant’s sentence is void, and any new sentencing hearing is
limited to the imposition of postrelease control. Res judicata bars a defendant’s
challenge to lawfully-imposed portions of a sentence. State v. Buckner, 1st Dist. No.
C-100666, 2011-Ohio-4358, ¶6.
{¶8} Because only those portions of Criswell’s sentences pertaining to
postrelease control were void, the trial court’s jurisdiction was limited to informing
Criswell of postrelease control. As a result, the trial court lacked authority to merge
Criswell’s drug offenses in the case numbered B-9908329. State v. Harris, 1st Dist.
Nos. C-100470 and C-100471, 2011-Ohio-2729, ¶5-6. Extending that principle to
Criswell’s assignment of error, the trial court did not have the authority to impose
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OHIO FIRST DISTRICT COURT OF APPEALS
Criswell’s sentences in the separate cases concurrently instead of consecutively, as
originally imposed. Therefore, Criswell’s assignment of error is overruled.
{¶9} The trial court’s judgment in the case numbered B-9908329 is
reversed, and this cause is remanded for the imposition of Criswell’s original
sentences on the drug counts, as modified with the proper postrelease-control
notification, and the dismissal of the weapons-under-disability counts pursuant to
this court’s disposition of Criswell’s first appeal. The trial court’s judgment in the
case numbered B-9907155-B is affirmed.
Affirmed in part, reversed in part, and cause remanded.
SUNDERMANN, P.J., and CUNNINGHAM, J., concur.
Please Note:
The court has recorded its own entry on the date of the release of this opinion.
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