State v. Thomas

[Cite as State v. Thomas, 2011-Ohio-4226.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25590
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CEDRIC P. THOMAS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 08 02 0459 (A)
DECISION AND JOURNAL ENTRY
Dated: August 24, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} Cedric Thomas pleaded guilty to trafficking in cocaine, possession of cocaine,
having weapons while under disability, and possession of criminal tools, and the trial court
sentenced him to 10 years in prison. Mr. Thomas did not appeal. When the trial court
discovered later that it had not properly imposed post-release control, it held a hearing and issued
a nunc pro tunc journal entry to correct its original sentencing entry. Mr. Thomas has appealed,
assigning two errors regarding the validity of his convictions and sentence. We affirm because
Mr. Thomas’s arguments are barred by the doctrine of res judicata.
RES JUDICATA
{¶2} Mr. Thomas’s first assignment of error is that the trial court incorrectly sentenced
him under the statutory requirements for crack cocaine instead of powder cocaine. His second
assignment of error is that the trial court incorrectly determined that his trafficking and
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possession of cocaine convictions are not allied offenses of similar import. The State has argued
that Mr. Thomas’s arguments are barred by the doctrine of res judicata because he could have
raised them on appeal from the trial court’s original sentencing entry.
{¶3} The trial court held a hearing and issued a nunc pro tunc sentencing entry because
it determined that it had not correctly imposed post-release control. Under Section 2929.19.1 of
the Ohio Revised Code, “[i]f . . . a court imposed a sentence including a prison term . . . and
failed to notify the offender . . . that the offender will be supervised under section 2967.28 of the
Revised Code after the offender leaves prison or to include a statement to that effect in the
judgment of conviction . . . , at any time before the offender is released from imprisonment under
that term and at a hearing conducted in accordance with division (C) of this section, the court
may prepare and issue a correction to the judgment of conviction that includes in the judgment of
conviction the statement that the offender will be supervised under section 2967.28 of the
Revised Code after the offender leaves prison.” In State v. Singleton, 124 Ohio St. 3d 173, 2009-
Ohio-6434, the Ohio Supreme Court explained that Section 2929.19.1 allows a trial court to
“correct an original judgment of conviction by placing on the journal of the court a nunc pro tunc
entry that includes a statement that the offender will be supervised under R.C. 2967.28 after the
offender leaves prison and that the parole board may impose a prison term of up to one-half of
the stated prison term originally imposed if the offender violates postrelease control.” Id. at ¶23.
{¶4} In State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, the Ohio Supreme Court
held that a trial court’s mistake in imposing post-release control renders its entire judgment void.
Id. at ¶16. In State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, however, the Court
modified Bezak, clarifying that only the part of the sentence that was in error is void. Id. at
paragraph two of the syllabus. It also held that “[t]he scope of an appeal from a resentencing
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hearing in which a mandatory term of post-release control is imposed is limited to issues arising
at the resentencing hearing.” Id. at ¶40. “[R]es 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.
{¶5} Although the part of the trial court’s original sentencing entry that imposed post-
release control was void, the rest was not, including the trial court’s determination that Mr.
Thomas should be sentenced under the statutory requirements for crack cocaine and its
determination that Mr. Thomas’s convictions are not allied offenses of similar import. See State
v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, at ¶27. Mr. Thomas could have appealed the
trial court’s original sentencing entry on those grounds, but did not. Accordingly, his arguments
are barred by the doctrine of res judicata. See State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-
3831, at ¶59 (“Res judicata bars the assertion of claims against a valid, final judgment of
conviction that have been raised or could have been raised on appeal.”); State v. Rexroad, 9th
Dist. No. 22214, 2004-Ohio-6271, at ¶8 (“That a defendant failed to directly appeal from his
conviction and sentence does not prevent the application of the doctrine of res judicata.”). Mr.
Thomas’s assignments of error are overruled.
CONCLUSION
{¶6} Although the trial court incorrectly imposed post-release control, only that part of
its sentencing entry was void. Res judicata bars Mr. Thomas from assigning errors that he could
have assigned on appeal from the trial court’s original sentencing entry. The judgment of the
Summit County Common Pleas Court is affirmed.
Judgment affirmed.
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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(E). 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.
CLAIR E. DICKINSON
FOR THE COURT
CARR, P. J.
WHITMORE, J.
CONCUR
APPEARANCES:
JANA DELOACH, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.