[Cite as State v. Payton, 2011-Ohio-4386.]


                                        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. Sheila G. Farmer, J.
-vs-                                         :
                                             :
DENNIS C. PAYTON                             :      Case No. 2010CA00276
                                             :
    Defendant - Appellant                    :      OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Court of Common Pleas,
                                                 Case No. 2003CR0655



JUDGMENT:                                        Affirmed




DATE OF JUDGMENT:                                August 29, 2011



APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

JOHN D. FERRERO                                  DENNIS C. PAYTON, PRO SE
Prosecuting Attorney                             Inmate No. 460-700
Stark County, Ohio                               Mansfield Correctional Institution
                                                 P.O. Box 788
By: RONALD MARK CALDWELL                         Mansfield, OH 44901
110 Central Plaza South
Suite 510
Canton, OH 44702
Stark County, Case No. 2010CA00276                                                    2

Farmer, J.

      {¶1}   On April 20, 2004, appellant, Dennis Payton, was found guilty of one count

of rape in violation of R.C. 2907.02, one count of kidnapping in violation of R.C.

2905.01, two counts of gross sexual imposition in violation of R.C. 2907.05, and one

count of unlawful sexual conduct with a minor in violation of R.C. 2907.04. By judgment

entry filed December 24, 2003, the trial court sentenced appellant to an aggregate term

of fourteen years and five months in prison and classified him as a sexual predator. His

convictions and sentence were affirmed on appeal. State v. Payton, Stark App. No.

2004CA00019, 2005-Ohio-737.

      {¶2}   On May 19, 2010, appellant filed a motion for de novo sentencing as his

original sentence did not include a term of postrelease control. A video conferencing

hearing was held on September 3, 2010. By judgment entry filed September 16, 2010,

the trial court resentenced appellant to the fourteen years, five months sentence and

imposed five years of postrelease control.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶4}   "THE TRIAL COURT ERRED IN NOT CONDUCTING A DE NOVO

SENTENCING HEARING TO IMPOSE A VALID SENTENCE ON APPELLANT

INSTEAD OF THE LIMITED VIDEO HEARING JUST TO IMPOSE POST RELEASE

CONTROL      VIOLATING      APPELLANT'S          CONSTITUTIONAL    RIGHT     TO    DUE

PROCESS."
Stark County, Case No. 2010CA00276                                          3


                                        II

     {¶5}   "THE     TRIAL   COURT    VIOLATED     THE   APPELLANT'S   RIGHTS

GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, AND

THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AGAINST

DOUBLE JEOPARDY WHEN IT FAILED TO FOLLOW STATUTORILY MANDATED

PROVISIONS OF RC 2941.25(A) REGARDING ALLIED OFFENSES."

                                        III

     {¶6}   "PLAIN    ERROR    AND    VOID     CONVICTION   RESULTED   WHERE

APPELLANT WAS DEPRIVED OF HIS RIGHT TO GRAND JURY INDICTMENT, TO

DUE PROCESS AND A FAIR TRIAL PURSUANT TO ARTICLE I, SECTION 10 OF

THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION WHERE INDICTMENTS UPON WHICH

APPELLANT WAS TRIED, CONVICTED AND SENTENCED OMITTED ESSENTIAL

ELEMENTS OF OFFENSES SOUGHT TO BE CHARGED."

                                        IV

     {¶7}   "THE JURY'S VERDICTS WERE INCONSISTENT WITH THE EVIDENCE

PRESENTED     IN     COURT    AND    AGAINST    THE   MANIFEST   WEIGHT   AND

SUFFICIENCY OF THE EVIDENCE."

                                        V

     {¶8}   "THE TRIAL COURT ERRED BY CLASSIFYING APPELLANT AS A

SEXUAL PREDATOR WHERE CLEAR AND CONVINCING EVIDENCE DID NOT

SUPPORT THAT CONCLUSION."
Stark County, Case No. 2010CA00276                                                     4


                                            I

      {¶9}   Appellant claims the trial court erred in imposing postrelease control via a

video conferencing hearing. We disagree.

      {¶10} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Supreme

Court of Ohio held the following at paragraph one of the syllabus:

      {¶11} "For criminal sentences imposed prior to July 11, 2006, in which a trial

court failed to properly impose postrelease control, trial courts shall conduct a de novo

sentencing hearing in accordance with decisions of the Supreme Court of Ohio."

      {¶12} This de novo hearing has been limited by the Supreme Court of Ohio in

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, which will be discussed infra.

      {¶13} In the case sub judice, appellant was sentenced prior to July 11, 2006 and

was not properly informed of postrelease control; therefore, pursuant to Singleton, he

was entitled to a de novo hearing. Video conferencing is an acceptable method of

holding the hearing:

      {¶14} "The offender has the right to be physically present at the hearing, except

that, upon the court's own motion or the motion of the offender or the prosecuting

attorney, the court may permit the offender to appear at the hearing by video

conferencing equipment if available and compatible.          An appearance by video

conferencing equipment pursuant to this division has the same force and effect as if the

offender were physically present at the hearing." R.C. 2929.191(C) in part (correction to

judgment of conviction; post-release supervision).

      {¶15} Assignment of Error I is denied.
Stark County, Case No. 2010CA00276                                                      5


                                        II, III, IV, V

      {¶16} Under these assignments, appellant complains of double jeopardy/allied

offenses issues, incomplete indictment, and manifest weight and sufficiency of the

evidence regarding the jury's verdicts. Appellant also claims the trial court erred in

classifying him as a sexual predator.

      {¶17} In Fischer, supra, at syllabus, the Supreme Court of Ohio limited the

nature of the de novo hearing as follows:

      {¶18} "1. A sentence that does not include the statutorily mandated term of

postrelease control is void, is not precluded from appellate review by principles of res

judicata, and may be reviewed at any time, on direct appeal or by collateral attack.

      {¶19} "2. The new sentencing hearing to which an offender is entitled under

State v. Bezak is limited to proper imposition of postrelease control. (State v. Bezak,

114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus, modified.)

      {¶20} "3. 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.

      {¶21} "4. The scope of an appeal from a resentencing hearing in which a

mandatory term of postrelease control is imposed is limited to issues arising at the

resentencing hearing."

      {¶22} As stated by the Fischer court in paragraph two of the syllabus, the new

sentencing hearing "is limited to proper imposition of postrelease control." Upon review,

we find the trial court sub judice properly notified appellant of the mandatory five year
Stark County, Case No. 2010CA00276                                                     6


postrelease control requirement under R.C. 2967.28(B). T. at 6-8; Judgment Entry filed

September 16, 2010

      {¶23} Pursuant to Fischer, the issues of double jeopardy/allied offenses,

incomplete indictment, manifest weight and sufficiency of the evidence, and sexual

predator classification were not reviewable during this hearing. See, State v. Griffis,

Muskingum App. No. CT2010-57, 2011-Ohio-2955. In addition, all of these alleged

errors were raised or could have been raised on appellant's direct appeal therefore, they

are barred by the doctrine of res judicata.    Payton, supra; Fischer, supra; State v.

Ketterer, 126 Ohio St.3d 448, 2010–Ohio–3831; Grava v. Parkman Twp., 73 Ohio St.3d

379, 1995-Ohio-331, syllabus.

      {¶24} Assignments of Error II, III, IV, and V are denied.

      {¶25} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Hoffman, J. concur.


                                            _s/ Sheila G. Farmer__________________




                                            _s/ W. Scott Gwin____________________




                                            _s/ William B. Hoffman________________

                                                      JUDGES
SGF/sg 823
[Cite as State v. Payton, 2011-Ohio-4386.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
DENNIS C. PAYTON                               :
                                               :
        Defendant-Appellant                    :       CASE NO. 2010CA00276




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellant.




                                               _s/ Sheila G. Farmer__________________




                                               _s/ W. Scott Gwin____________________




                                               _s/ William B. Hoffman________________

                                                       JUDGES
