[Cite as State v. Blaine-Smith, 2016-Ohio-4832.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      :   JUDGES:
                                                   :   Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                         :   Hon. John W. Wise, J.
                                                   :   Hon. Craig R. Baldwin, J.
-vs-                                               :
                                                   :
RALPH BLAINE SMITH                                 :   Case No. 15-CA-46
                                                   :
        Defendant-Appellant                        :   OPINION




CHARACTER OF PROCEEDING:                               Appeal from the Court of Common
                                                       Pleas, Case No. 2000 CR 0071




JUDGMENT:                                              Affirmed




DATE OF JUDGMENT:                                      July 5, 2016




APPEARANCES:

For Plaintiff-Appellee                                 For Defendant-Appellant

ANDREA K. GREEN                                        ANDREW T. SANDERSON
239 West Main Street                                   738 East Main Street
Suite 101                                              Lancaster, OH 43130
Lancaster, OH 43130
Fairfield County, Case No. 15-CA-46                                                       2

Farmer, P.J.

       {¶1}    On March 17, 2000, the Fairfield County Grand Jury indicted appellant,

Ralph Blaine Smith, on two counts of aggravated burglary in violation of R.C.

2911.11(A)(1) and (2), three counts of aggravated robbery in violation of R.C.

2911.01(A)(1) and (3), two counts of kidnapping in violation of R.C. 2905.01(A), and one

count of theft in violation of R.C. 2913.02. All counts except the theft count included

firearm specifications.

       {¶2}    A jury trial commenced on August 8, 2000. The jury found appellant guilty

as charged.     By judgment entry filed September 19, 2000, the trial court imposed

maximum consecutive sentences, resulting in a total term of sixty-one years, to be served

consecutively to a six year term for the firearm specifications. Appellant filed an appeal

to this court, raising six assignments of error, including challenges to his sentence. We

affirmed appellant's convictions and sentence. See State v. Smith, 5th Dist. Fairfield No.

00-CA-63, 2001-Ohio-1952 (hereinafter "Smith I").

       {¶3}    On June 19, 2008, appellant filed a petition to vacate or set aside judgment

of conviction or sentence, challenging the indictment and claiming structural error. By

entry filed October 23, 2008, the trial court denied the petition, finding the filing was a

petition for postconviction relief and was untimely filed.

       {¶4}    On November 12, 2013, appellant filed a motion to vacate a void sentence,

claiming failure to merge allied offenses, failure to make required findings before imposing

more than the minimum sentences in violation of R.C. 2929.14(B), failure to properly

sentence him on the firearm specifications, and failure to notify him of and properly

impose postrelease control. By entry filed February 12, 2014, the trial court denied the
Fairfield County, Case No. 15-CA-46                                                         3


motion, finding the motion to be an untimely motion for postconviction relief and finding

all issues raised therein to be barred by the doctrine of res judicata. Appellant appealed,

again challenging his sentence. We affirmed appellant's sentence, finding the arguments

therein to be barred by res judicata, but remanded the matter to the trial court for a hearing

to verbally notify appellant of postrelease control. See State v. Smith, 5th Dist. Fairfield

No. 14-CA-18, 2014-Ohio-4657 (hereinafter "Smith II").

       {¶5}    Upon remand, the trial court held a resentencing hearing on July 13, 2015.

Appellant requested an opportunity to argue the merits of his maximum consecutive

sentence.     The trial court overruled appellant's request and verbally notified him of

postrelease control. By judgment entry filed July 30, 2015, the trial court sentenced

appellant to the original 2000 sentence.

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

consideration. Assignments of error are as follows:

                                              I

       {¶7}    "THE TRIAL COURT COMMITTED HARMFUL ERROR IN FAILING TO

GRANT THE DEFENDANT-APPELLANT LEAVE TO ADDRESS ISSUES RELATED TO

HIS SENTENCING IN CONNECTION WITH THE JULY 13, 2015 HEARING."

                                              II

       {¶8}    "THE TRIAL COURT COMMITTED HARMFUL ERROR IN SENTENCING

MR. BLAINE-SMITH TO A TERM OF POST-RELEASE CONTROL."
Fairfield County, Case No. 15-CA-46                                                       4


                                              III

       {¶9}   "THE     TRIAL     COURT        COMMITTED         HARMFUL        ERROR      IN

RESENTENCING THE DEFENDANT-APPELLANT IN CONNECTION WITH THE JULY

13, 2015 HEARING."

                                              IV

       {¶10} "THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL AND DUE PROCESS HEREIN."

                                           I, II, III

       {¶11} Appellant claims the trial court erred in denying him the opportunity to

address his maximum consecutive sentence during the July 13, 2015 resentencing

hearing, erred in imposing postrelease control, and erred in imposing the original 2000

sentence. We disagree.

       {¶12} On two occasions, appellant asked this court to review his sentence. See

Smith I and II. This court affirmed appellant's maximum consecutive sentence in Smith I,

and found the arguments raised in Smith II regarding his sentence to be res judicata.

However, we agreed with appellant's challenge to the imposition of his postrelease control

in Smith II at ¶ 23, 25-26, and remanded the matter to the trial court as follows:



              Although the sentencing entry recites that appellant was informed of

       postrelease control, the transcript of the sentencing hearing reflects that the

       trial court failed to inform appellant of postrelease control. A trial court may

       correct its omission to inform a defendant about post-release control

       sanctions by complying with R.C. 2929.191 and issuing a corrected
Fairfield County, Case No. 15-CA-46                                                          5

       sentence. State v. Alexander, 5th Dist. Stark No. 13-CA-151, 2014-Ohio-

       2351, ¶ 21. However, in cases where no corrected entry is necessary, only

       a hearing is required. Id.

              Because the trial court did not verbally inform appellant of mandatory

       postrelease control sanctions at sentencing, his third assignment of error is

       sustained in part and overruled in part. Appellant is entitled to a new limited

       sentencing hearing during which the court will explain the mandatory period

       of postrelease control included in his sentence.

              This matter is remanded to the trial court for the limited purpose of

       holding a sentencing hearing to address appellant in regards to his

       postrelease control sanction.      As to all other issues, the judgment is

       affirmed.



       {¶13} During the resentencing hearing, the trial court verbally notified appellant of

postrelease control as directed by this court. July 13, 2015 T. at 8-9. The verbal

notification was proper. Because the remand instructed the trial court to conduct a limited

hearing to verbally inform appellant of postrelease control, the trial court was not at liberty

to entertain any of appellant's arguments relative to his maximum consecutive sentence.

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph two of the syllabus ("[t]he

new sentencing hearing to which an offender is entitled under State v. Bezak is limited to

proper imposition of postrelease control"); State v. Alexander, 5th Dist. Stark No. 13-CA-

151, 2014-Ohio-2351.
Fairfield County, Case No. 15-CA-46                                                         6


       {¶14} Any arguments in this appeal relative to the imposition of the original 2000

sentence as to maximum consecutive terms are again barred by the doctrine of res

judicata. State v. Perry, 10 Ohio St.2d 175 (1967); Fischer at paragraph three of the

syllabus ("[a]lthough 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").

       {¶15} In his appellate brief at 8, appellant makes the specious argument: "In failing

to ever raise this issue [postrelease control] over the last several years, it must be

concluded that the government has 'waived' the ability to NOW raise this issue," and

therefore the issue is barred by res judicata. We note it was APPELLANT, in Smith II,

that raised the issue and contested the imposition of postrelease control. This court

reviewed appellant's postrelease control as requested and remanded the matter for

correction prior to the completion of his sentence. State v. Bloomer, 122 Ohio St.3d 200,

2009-Ohio-2462. Appellant's attempt to now advance a circular argument of res judicata

lacks any merit.

       {¶16} Appellant also argues the imposition of postrelease control is a

constitutional violation under cruel and unusual punishments. "The post-release control

sanctions are sanctions aimed at behavior modification in the attempt to reintegrate the

offender safely into the community, not mere punishment for an additional crime, as in

bad time." Woods v. Telb, 89 Ohio St.3d 504, 512, 2000-Ohio-171. Appellant was well

aware of postrelease control as it was included in the original 2000 judgment entry. The

trial court verbally notified appellant of postrelease control in accordance with Ohio law

as directed by this court's limited remand.
Fairfield County, Case No. 15-CA-46                                                      7


      {¶17} In addition, as to the arguments on res judicata and cruel and unusual

punishment, we concur with this court's well-reasoned opinion in State v. Burley, 5th Dist.

Licking No. 09-CA-136, 2010-Ohio-4840.

      {¶18} Upon review, we find the trial court did not err as argued by appellant.

      {¶19} Assignments of Error I, II, and III are denied.

                                            IV

      {¶20} Appellant claims he was denied the effective assistance of counsel. We

disagree.

      {¶21} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:



             2. Counsel's performance will not be deemed ineffective unless and

      until counsel's performance is proved to have fallen below an objective

      standard of reasonable representation and, in addition, prejudice arises

      from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

      O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

      668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

             3. To show that a defendant has been prejudiced by counsel's

      deficient performance, the defendant must prove that there exists a

      reasonable probability that, were it not for counsel's errors, the result of the

      trial would have been different.
Fairfield County, Case No. 15-CA-46                                                        8


       {¶22} In his appellate brief at 14, appellant argues "the failure of his attorneys to

raise issue with respect to his sentence either at the time of the original hearing or on his

direct appeal." Appellant argues his attorneys failed to contest the consecutive nature of

the sentences, double jeopardy, allied offenses, and the length of his sentence.

       {¶23} All of these arguments under the guise of ineffective assistance of counsel

are barred by the doctrine of res judicata as they could have been raised on direct appeal.

Nevertheless, we note during the original sentencing hearing, trial counsel raised the

issue of merger of offenses. September 12, 2000 T. at 6-7, 13-15. And Smith I clearly

establishes appellant's appellate counsel raised the maximum consecutive nature of his

sentence on direct appeal (Assignment of Error III), as well as the allied offenses/merger

issue (Assignment of Error IV).

       {¶24} During the resentencing hearing, trial counsel argued for the opportunity to

address all of these issues again, and the trial court properly overruled the request as

noted above. July 13, 2015 T. at 4-5.

       {¶25} Upon review, we do not find any indication of ineffective assistance of

counsel as argued by appellant.

       {¶26} Assignment of Error IV is denied.
Fairfield County, Case No. 15-CA-46                                             9


      {¶27} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Baldwin, J. concur.




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