State v. Ballou , 2011 Ohio 2925 ( 2011 )

[Cite as State v. Ballou, 2011-Ohio-2925.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95733
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TERRANCE BALLOU
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-432442
BEFORE: Boyle, P.J., Jones, J., and Keough, J.
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RELEASED AND JOURNALIZED: June 16, 2011
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
By: Nathaniel McDonald
Assistant Public Defender
310 Lakeside Avenue, Suite 400
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Mary McGrath
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶ 1} Defendant-appellant, Terrance Ballou, appeals his sentence, following the trial
court’s resentencing of him on his pro se motion to correct a void sentence. Finding no merit
to the appeal, we affirm.
Procedural History and Facts
{¶ 2} In June 2003, Ballou was convicted of possession of crack cocaine in an amount
equal to or exceeding 100 grams, in violation of R.C. 2925.11; drug trafficking at least 100
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grams of crack cocaine, in violation of R.C. 2925.03(A)(2); and possession of criminal tools,
in violation of R.C. 2923.24. The first two counts carried major drug offender specifications,
which Ballou was also found guilty of. The trial court imposed the mandatory ten years on
the first two counts of the indictment, to run concurrently with each other. The trial court
further imposed one year on the possession of criminal tools count, also to run concurrent with
the other counts, for a total prison term of ten years. The court, however, failed to inform
Ballou of postrelease control.
{¶ 3} Ballou subsequently filed a direct appeal, challenging his conviction as being
against the manifest weight of the evidence. On May 21, 2004, this court affirmed his
conviction and overruled his sole assignment of error. See State v. Ballou, 8th Dist. No.
83160, 2004-Ohio-2339. On December 10, 2004, this court further denied Ballou leave to
reopen his appeal after the Ohio Supreme Court denied him leave to appeal. See State v.
Ballou, 8th Dist. No. 83160, 2004-Ohio-6850.
{¶ 4} On April 16, 2010, Ballou filed a pro se motion to correct his sentence on the
grounds that the trial court failed to notify him of postrelease control at the 2003 sentencing
hearing. On August 20, 2010, the trial court held a de novo sentencing hearing and imposed
the same sentence given in 2003, i.e., concurrent ten-year prison terms on Counts 1 and 2 and
a concurrent prison term of one year on Count 3. The trial court also informed Ballou that he
would be subject to a mandatory five-year term of postrelease control on the first two counts
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and could be subject to a discretionary period up to three years of postrelease control on the
third count.
{¶ 5} Ballou appeals, raising the following two assignments of error:
{¶ 6} “I. The trial court erred when it failed to merge counts 1 and 2 at the de novo
sentencing hearing.
{¶ 7} “II. The trial court did not have jurisdiction to sentence Mr. Ballou with
respect to count 3 at the de novo sentencing hearing.”
Allied Offenses
{¶ 8} In his first assignment of error, Ballou contends that the trial court erred by
failing to merge the first two counts of his indictment, i.e., drug possession and drug
trafficking, as allied offenses. He argues that, despite not having raised the issue in his direct
appeal, the trial court was required to merge the two counts because his resentencing hearing
was a de novo hearing. We disagree.
{¶ 9} If a defendant is subject to postrelease control, the trial court must notify him of
postrelease control at the sentencing hearing, and must include the postrelease control terms in
the sentence, or the sentence is void. State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250,
868 N.E.2d 961, at the syllabus; State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817
N.E.2d 864. In Bezak, the court held that when postrelease control is not properly imposed,
the defendant is entitled to a de novo sentencing hearing.
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{¶ 10} Subsequently, however, in State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court limited its holding in Bezak and
concluded that when postrelease control is not properly imposed the defendant is only entitled
to a hearing for the proper imposition of postrelease control. Id. at ¶27-29. The defendant
is not entitled to be resentenced on the entire sentence — “only the portion that is void may
be vacated and otherwise amended.” Id. at ¶28. Therefore, under Fischer, the trial
court’s authority at the resentencing hearing was limited to correcting the void aspect of
Ballou’s sentence — the postrelease control aspect.
{¶ 11} Furthermore, in applying Fischer and the doctrine of res judicata, this court has
consistently held that “the time to challenge a conviction based on allied offenses is through a
direct appeal — not at a resentencing.” State v. Poole, 8th Dist. No. 94759, 2011-Ohio-716,
¶13; State v. Padgett, 8th Dist. No. 95065, 2011-Ohio-1927, ¶8. Indeed, as the court
declared in Fischer, “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.” Id. at ¶40.
{¶ 12} Accordingly, Ballou’s first assignment of error is overruled.
Expired Sentence
{¶ 13} In his second assignment of error, Ballou argues that the trial court lacked
authority to impose postrelease control on the possession of the criminal tools count because
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the original term of sentence on that count had expired. While we agree that a trial court has
no authority to impose postrelease control at resentencing upon an individual term that has
expired, we find the trial court’s inclusion of a three-year discretionary period on the third
count to be harmless error.
{¶ 14} R.C. 2967.28(F)(4)(c), which addresses multiple periods of postrelease control,
provides as follows:
{¶ 15} “If an offender is subject to more than one period of post-release control, the
period of post-release control for all of the sentences shall be the period of post-release control
that expires last, as determined by the parole board or court. Periods of post-release control
shall be served concurrently and shall not be imposed consecutively to each other.”
{¶ 16} Relying on this provision, the Ohio Supreme Court has held that, when a trial
court imposes sentences for multiple convictions, the trial court’s imposition of one term of
postrelease control is proper. Durain v. Sheldon, 122 Ohio St.3d 582, 2009-Ohio-4082, 913
N.E.2d 442, ¶1. Here, because the trial court properly imposed five years of postrelease
control on the first two counts, and this period of postrelease control expires last, we find
Ballou’s assignment of error to be moot.
Judgment affirmed.
It is ordered that appellee shall recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
LARRY A. JONES, J., and
KATHLEEN ANN KEOUGH, J., CONCUR