State v. Banks , 2012 Ohio 1323 ( 2012 )

[Cite as State v. Banks, 2012-Ohio-1323.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25969
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CLARENCE BANKS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 07 12 4217
DECISION AND JOURNAL ENTRY
Dated: March 28, 2012
CARR, Judge.
{¶1} Appellant, Clarence Banks, appeals the judgment of the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} This case arises out of an incident which transpired on December 10, 2007. The
substantive facts of the incident are set forth in this Court’s prior decision. State v. Banks, 9th
Dist. No. 24259, 2008-Ohio-6432.
{¶3} On December 27, 2007, Banks was indicted by the Summit County Grand Jury on
one count of kidnapping in violation of R.C. 2905.01(A)(2)/(3)/(4), a felony of the first degree;
one count of intimidation of a crime victim or witness in violation of R.C. 2921.04(B), a felony
of the third degree; two counts of domestic violence in violation of R.C. 2919.25(A) and (C), a
felony of the third degree and a misdemeanor of the first degree; two counts of failure to comply
with the order or signal of a police officer in violation of R.C. 2921.331(B), a felony of the third
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degree and a felony of the fourth degree; grand theft in violation of R.C. 2913.02(A)(1)/(2)/(4), a
felony of the fourth degree; driving under suspension in violation of R.C. 4510.11, a
misdemeanor of the first degree; and three minor misdemeanor traffic violations.
{¶4} On March 12, 2008, the State amended the kidnapping charge to a charge of
robbery in violation of R.C. 2911.02(A)(2). Banks subsequently pleaded guilty to robbery and
all other charges listed in the original indictment. On April 30, 2008, Banks was sentenced to a
total of 14 years in prison. The trial court issued its sentencing entry on May 12, 2008. Banks
filed a timely appeal to this Court. His convictions were affirmed on December 10, 2008.
{¶5} On October 6, 2010, Banks filed a motion to withdraw his guilty pleas. The
motion was denied by the trial court on November 24, 2010. Banks filed a motion for reduction
of sentence on February 10, 2011. The trial court denied the motion on March 7, 2011.
{¶6} Subsequently, Banks filed a motion for resentencing on April 1, 2011. On April
7, 2011, the State responded that while there had been a mistake in the imposition of post-release
control, the remaining portions of the sentence were valid and remained in place pursuant to
State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238.
{¶7} On April 15, 2011, the trial court ordered that Banks be returned for resentencing
on May 16, 2011. Banks then filed a motion to withdraw his pleas on April 26, 2011. On May
16, 2011, the trial court continued the hearing to May 23, 2011. On May 23, 2011, the trial court
corrected the error in the imposition of post-release control, and its sentencing entry was
journalized on May 25, 2011.
{¶8} Banks filed a notice of appeal on June 6, 2011. On appeal, he raises two
assignments of error.
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II.
ASSIGNMENT OF ERROR I
THE COURT ERRED IN DENYING MR. BANKS’ MOTION TO WITHDRAW
HIS GUILTY PLEA WITHOUT A HEARING[.]
ASSIGNMENT OF ERROR II
THE COURT ERRED IN SENTENCING MR. BANKS UPON ALLIED
OFFENSES OF SIMILAR IMPORT[.]
{¶9} In his first assignment error, Banks argues that trial court erred in denying his
motion to withdraw his plea without conducting a hearing. In his second assignment of error,
Banks argues that the trial court erred in sentencing him on allied offenses of similar import.
This Court disagrees with both contentions.
{¶10} The Supreme Court of Ohio has held that an error in post-release control
notification does not result in a void sentence. State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-
6238. In Fischer, the Supreme Court held 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. The Court reasoned that “[n]either the Constitution nor
common sense commands anything more.” Id. The new sentencing hearing that a defendant is
entitled to “is limited to proper imposition of postrelease control.” Id. at ¶ 29. The Court also
held that res judicata “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 paragraph three of
the syllabus. Furthermore, the scope of an appeal from a resentencing hearing in which a
mandatory term of post-release control is imposed is limited to issues arising at the resentencing
hearing. Id. at paragraph four of the syllabus.
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{¶11} The substantive issues Banks raises in his assignments of error are not properly
before this Court for consideration. The scope of Banks’ resentencing hearing was limited to the
proper imposition of post-release control. Fischer at ¶ 29. Thus, his resentencing hearing was
not the proper venue to raise a challenge pertaining to the validity of his plea. Moreover, the trial
court was without jurisdiction to consider Banks’ motion to withdraw his plea filed on April 26,
2011, the second such motion he had filed since the time of his direct appeal, because his
convictions had previously been affirmed by this Court on direct appeal. State ex. rel. Special
Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St. 2d 94, 97-98. Banks is also barred
from raising a challenge to his underlying sentence. After Banks was initially sentenced on April
30, 2008, he appealed to this Court and argued, among other things, that he was convicted and
sentenced on allied offenses of similar import. This Court affirmed the trial court’s judgment on
December 10, 2008. State v. Banks, 9th Dist. No. 24259, 2008-Ohio-6432. Banks currently
appeals from the trial court’s May 25, 2011 entry which corrected an error in the imposition of
post-release control. Under Fischer, the failure of a trial court judge to properly impose
statutorily mandated post-release control results in “that part of the sentence” being void. Id. at ¶
26. Here, the doctrine of res judicata applies to the other aspects of Banks’ conviction, including
the determination of guilt and the lawful elements of the original sentence. Id. at paragraph three
of the syllabus. As Banks was afforded an opportunity to raise the allied offenses issue in his
previous appeal, he is now barred under Fischer from re-litigating that issue in a subsequent
action.
{¶12} Banks’ assignments of error are overruled.
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III.
{¶13} Banks’ assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
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(C). 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.
DONNA J. CARR
FOR THE COURT
MOORE, P. J.
DICKINSON, J.
CONCUR
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APPEARANCES:
TODD M. CONNELL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, an RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.