State v. Tyson

[Cite as State v. Tyson, 2016-Ohio-3048.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2015CA00196
FRANK E. TYSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2000CR0849
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 16, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO, FRANK E. TYSON , PRO SE
Prosecuting Attorney, Inmate No. 387-251
Stark County, Ohio Lebanon Correctional Institution
P.O. Box 54
By: RENEE M. WATSON Lebanon, Ohio 45036
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2015CA00196 2
Hoffman, J.
{¶1} Defendant-appellant Frank E. Tyson appeals the August 24, 2015
Judgment Entry entered by the Stark County Court of Common Pleas, denying his motion
for resentencing. The state of Ohio is plaintiff-appellee.
STATEMENT OF THE CASE1
{¶2} In 2000, Appellant was found guilty by a jury of kidnapping, burglary, failure
to comply with an order of a police officer, grand theft of a motor vehicle, and receiving
stolen property. He was sentenced to a total of 24 years in prison.
{¶3} Upon direct appeal, this Court affirmed Appellant’s convictions and
sentence in 2001. State v. Tyson, 5th Dist. No. 2000CA00361, 2001-Ohio-1382.
{¶4} In 2008, Appellant separately filed a motion for a new trial and a motion for
post-conviction relief. The trial court denied both motions and this Court affirmed the trial
court’s decisions in State v. Tyson, 5th Dist. No. 2008CA00253, 2009-Ohio-374.
{¶5} Appellant then filed a habeas petition in federal court, which was dismissed
in February, 2010.
{¶6} In February, 2010, Appellant filed additional post-trial motions and
requested a de novo sentencing hearing based upon improperly imposed post-release
control. The trial court granted resenting, in part.
{¶7} A resentencing hearing limited to the proper imposition of post-release
control took place in May, 2011. Following entry, Appellant appealed again. This Court
1 A rendition of the facts is unnecessary for our resolution of this appeal.
Stark County, Case No. 2015CA00196 3
affirmed the trial court’s decision in State v. Tyson, 5th Dist. No. 2011CA00177, 2012-
Ohio-712.
{¶8} In July, 2013, Appellant filed another motion for resentencing. His motion
was granted pursuant to the holding in State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-
5014. Accordingly, Appellant was resentenced again on February 14, 2014. Therein, the
trial court vacated the post-release control associated with his conviction for kidnapping.
{¶9} Appellant again appealed, arguing his sentence for kidnapping could not be
reinstated because he had already served his sentence thereon. This Court rejected
Appellant’s argument and affirmed his resentencing. State v. Tyson, 5th Dist. No.
2014CA00040 2014-Ohio-5822 at ¶20.
{¶10} On July 29, 2015, Appellant filed another motion requesting de novo
sentencing again asserting his sentence for kidnapping could not be reinstated. The trial
court denied Appellant’s motion via Judgment Entry filed August 24, 2015.
{¶11} It is from that judgment entry Appellant prosecutes this appeal assigning as
error:
{¶12} “I. THE TRIAL COURT LACKED THE AUTHORITY AND JURISDICTION
TO ACT UPON, MODIFY, OR REVIVE THE 8 YEAR SENTENCE ON COUNT-1
KIDNAPPING AFTER THE 8 YEAR SENTENCE HAD EXPIRED.
{¶13} “II. THE TRIAL COURT HAD NO JURISDICTION OVER THIS MATTER
WHEN IT ENTERED THE ORDER STATING THE PRISON SANCTIONS OF 8 YEARS
ON COUNT-1 KIDNAPPING REMAINED AFTER HIS 8 YEAR TERM WAS VACATED
AND HAD EXPIRED.”
Stark County, Case No. 2015CA00196 4
I & II
{¶14} We address Appellant’s assignments of error together as they are controlled
by the same legal principle.
{¶15} We find the claims presently raised by Appellant were previously raised in
his prior appeal in State v. Tyson, 5th Dist. No. 2014CA00040, 2014-Ohio-5822. Under
the doctrine of law of the case and application of res judicata, we overrule both of
Appellant’s assignments of error.
{¶16} The judgment of the trial court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur
Stark County, Case No. 2015CA00196 5