[Cite as State v. Roles, 2017-Ohio-7389.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 17-CA-9
KENNETH ROLES

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Licking County Court of
                                               Common Pleas, Case No. 15 CR 794


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                        August 29, 2017

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

PAULA SAWYERS                                  ZACHARY A. MOYER
Licking County Prosecutor's Office             Brehm & Associates Co., LPA
20 South Second Street                         14 South High Street, PO Box 673
Newark, Ohio 43055                             New Albany, Ohio 43054


                                               KENNETH ROLES, PRO SE
                                               15708 McConnelsville Rd.
                                               Caldwell, Ohio 43724
Licking County, Case No. 17-CA-9                                                          2

Hoffman, J.



       {¶1}   Defendant-appellant Kenneth L. Roles appeals the January 27, 2017

Judgment Entry entered by the Licking County Court of Common Pleas, which overruled

his motion to dismiss, and resentenced him to impose the appropriate period of post-

release control. Plaintiff-appellee is the state of Ohio.

                                  STATEMENT OF THE CASE

       {¶2}   On December 1, 2015, a Criminal Complaint/Arrest Warrant was filed

against Appellant, charging him with one count of domestic violence, in violation of R.C.

2919.25(A)(D)(4), a felony of the third degree. Appellant entered a plea of not guilty at

his arraignment. Appellant appeared before the trial court on April 28, 2016, and withdrew

his former plea of not guilty and entered a plea of guilty to the charge. The trial court

accepted Appellant’s plea and deferred sentencing pending a presentence investigation.

       {¶3}   At the sentencing hearing, the trial court imposed a two-year prison term,

and advised Appellant, upon his release from the penitentiary, he “could be placed on

post-release control for a period of up to three years as determined at the discretion of

the Adult Parole Authority.”     The trial court memorialized Appellant’s sentence via

Judgment Entry filed on July 8, 2016. Subsequently, on December 30, 2016, Appellee

filed a motion requesting the trial court resentence Appellant to correct the error in the

post-release control sanctions originally imposed. Appellant filed a motion to dismiss.

       {¶4}   On January 27, 2017, the trial court conducted a hearing.         Appellant

appeared via video conferencing. The trial court provided the parties with an opportunity

to speak regarding their respective positions as to Appellant’s resentencing. The trial
Licking County, Case No. 17-CA-9                                                             3


court overruled Appellant’s motion to dismiss and noted his objections to the proceedings.

Thereafter, the trial court resentenced Appellant to a period of incarceration of two years

and informed Appellant he would be placed on post-release control for a mandatory three

years following his release from prison. The trial court advised Appellant he had a right

to appeal and the right to appointed counsel. The trial court gave Appellant jail time credit

for time served under the original sentence.

       {¶5}   Appellate counsel has filed a Motion to Withdraw and a brief pursuant to

Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924, indicating

the within appeal is wholly frivolous. Counsel for Appellant has raised one potential

assignment of error asking this Court to determine whether the trial court erred in the

sentence imposed upon Appellant. Appellant was given an opportunity to file a brief

raising additional assignments of error, but none was filed.

       {¶6}   In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant's counsel concludes the case is wholly frivolous,

then he should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client with

a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to raise

any matters that the client chooses. Id. Once the defendant's counsel satisfies these

requirements, the appellate court must fully examine the proceedings below to determine

if any arguably meritorious issues exist. If the appellate court also determines that the

appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss the
Licking County, Case No. 17-CA-9                                                       4


appeal without violating constitutional requirements, or may proceed to a decision on the

merits if state law so requires. Id.

       {¶7}   Counsel in this matter has followed the procedure in Anders v. California

(1967), 386 U.S. 738.

       {¶8}   Counsel asserts one potential assignment of error in the “Assignments of

Error” section of Appellant’s brief:



              I. THE TRIAL COURT DID ERR BY DENYING DEFENDANT’S

       MOTION TO DISMISS AND ALLOW THE COURT TO RESENTENCE THE

       DEFENDANT. (T2, PP. 3-5).



       {¶9}   However, in the “Argument” section of Appellant’s brief, counsel sets forth

the following potential assignment of error:



              I. THE TRIAL COURT DID ERR BY ALLOWING THE STATE [TO]

       PRESENT TESTIMONY ABOUT DEFENDANT’S PRIOR ACTS AND ALLOWING

       EVIDENCE OF DEFENDANT’S PRIOR ACTS TO BE ENTERED AS EVIDENCE.



       {¶10} We will address the merits of both potential assignments of error.

       {¶11} We find Appellant’s argument the trial court erred in denying his motion to

dismiss, and in resentencing him to be without merit.

       {¶12} The Ohio Supreme Court has held if post-release control was not properly

rendered, the offending portion of the sentence dealing with post-release control is
Licking County, Case No. 17-CA-9                                                           5

subject to review and correction. State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238,

942 N.E.2d 332; State v. Bezak, 114 Ohio St.3d 94, 2007–Ohio–3250, 868 N.E.2d 961.

       {¶13} At the original sentencing hearing, the trial court incorrectly advised

Appellant he “could be placed on post-release control for a period of up to three years as

determined at the discretion of the Adult Parole Authority.” However, the trial court

subsequently resentenced Appellant in accord with State v. Fischer, 128 Ohio St.3d 92,

2010–Ohio–6238, 942 N.E.2d 332, “as it relates to post-release control.” We find no error

in the trial court conducting a limited resentencing hearing. We further find the trial court

did not err in overruling Appellant’s motion to dismiss the resentencing hearing.

       {¶14} Turning to Appellant’s contention the trial court erred in allowing Appellee

to present testimony about Appellant’s prior acts and admitting such evidence, we find

these arguments are not premised upon the imposition of post-release control at

resentencing. We have found arguments such as these are barred by res judicata on

appeals from resentencing if the issues did not arise from the resentencing hearing itself.

See, State v. Oweis, 5th Dist. Delaware No. 11 CAA 06 0050, 2012–Ohio–443, ¶ 12,

citing State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332 and State

v. Franklin, 8th Dist. No. 95991, 2011–Ohio–4953.

       {¶15} Accordingly, Appellant’s proposed assignments of error are overruled.

       {¶16} For these reasons, after independently reviewing the record, we agree with

counsel's conclusion no arguably meritorious claims exist upon which to base an appeal.

Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request to

withdraw, and affirm the judgment of the Licking County Court of Common Pleas.
Licking County, Case No. 17-CA-9                                                    6


      {¶17} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Wise, Earle, J. concur
