[Cite as State v. Wharton, 2011-Ohio-6601.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                        C.A. No.      25662

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JAMES M. WHARTON                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 05 08 2925

                                 DECISION AND JOURNAL ENTRY

Dated: December 21, 2011



        MOORE, Judge.

        {¶1}    Appellant, James M. Wharton, appeals from his conviction in the Summit County

Court of Common Pleas. This Court vacates and remands for proceedings consistent with this

opinion.

                                                I.

        {¶2}    We considered this case in a previous appeal and summarized the facts as follows:

        “[Wharton] was indicted on August 22, 2005, on one count of murder, in violation
        of R.C. 2903.02(A), a special felony; one count of felonious assault, in violation
        of R.C. 2903.11(A)(1), a second degree felony; and one count of murder, in
        violation of R.C. 2903.02(B), a special felony, for the death of Michael Burns
        following an altercation outside a bar on Kenmore Blvd., in Akron, Ohio. The
        first count was later dismissed. [Wharton] was tried before a jury on February 6,
        2006, on the remaining two counts. (“Trial One”). The jury convicted [Wharton]
        of the felonious assault charge, but was deadlocked as to the murder charge. The
        trial court declared a hung jury and a new trial date was set for May 1, 2006,
        which date was later continued to May 16, 2006. The trial court held sentencing
        on the felonious assault conviction in abeyance pending trial of the murder
        charge.

        “On May 16, 2006, [Wharton] was tried before a jury on the murder charge and
        was convicted on May 23, 2006 (“Trial Two”). [Wharton] was sentenced on June
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       8, 2006, to a term of 15 years to life on the murder conviction and seven years on
       the felonious assault conviction, to be served concurrently.” State v. Wharton, 9th
       Dist. No. 23300, 2007-Ohio-1817, at ¶2-3.

       {¶3}    On appeal, this Court affirmed his convictions. On June 18, 2010, Wharton filed

a motion for resentencing because the trial court failed to properly notify him of postrelease

control. A hearing was held on September 23, 2010, and Wharton was sentenced de novo

pursuant to State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, paragraph one of the

syllabus. At the hearing, the trial court informed Wharton of postrelease control and reimposed

his sentence of seven years of incarceration for the conviction of felonious assault, and fifteen

years to life for the offense of felony murder. In the September 30, 2010 judgment entry, the

trial court acknowledged that it was reimposing Wharton’s sentence of seven years of

incarceration for the conviction of felonious assault, and fifteen years to life for the offense of

felony murder. The entry further ordered that the felonious assault conviction be merged into the

felony murder because the offenses are allied offenses. The judgment entry fails to mention

postrelease control.

       {¶4}    Wharton timely filed a notice of appeal. He raises two assignments of error for

our review.

                                                II.

                                 ASSIGNMENT OF ERROR I

       “[WHARTON’S] CONVICTION FOR FELONY MURDER MUST BE
       VACATED BECAUSE HE WAS TRIED TWICE ON THE OFFENSE OF
       FELONIOUS ASSAULT, THE UNDERLYING PREDICATE OFFENSE FOR
       THE FELONY MURDER CHARGE, IN VIOLATION OF HIS RIGHT TO BE
       FREE FROM DOUBLE JEOPARDY AS GUARANTEED BY THE UNITED
       STATES AND OHIO’S CONSTITUTION.”
                                                3


                                 ASSIGNMENT OF ERROR II

       “[WHARTON’S] CONVICTION MUST BE VACATED BECAUSE HIS
       RIGHT TO BE FREE FROM DOUBLE JEOPARDY HAS BEEN VIOLATED
       BY THE DUAL CONVICTIONS BECAUSE FELONIOUS ASSAULT AND
       FELONY MURDER ARE ALLIED OFFENSES OF SIMILAR IMPORT.”

       {¶5}    In his first and second assignments of error, Wharton contends that his conviction

must be vacated because he was tried twice for the offense of felonious assault and because the

convictions of felonious assault and felony murder are allied offenses of similar import and thus

violate his double jeopardy rights.

       {¶6}    Before we address Wharton’s assignments of error, we must first address the

scope of the resentencing hearing. Wharton filed a motion for resentencing because the trial

court failed to properly notify him of postrelease control. The trial court held a de novo

resentencing hearing pursuant to State v. Singleton, which at the time required the trial court to

hold a de novo sentencing hearing to correct postrelease control in a sentence imposed before

July 11, 2006. Singleton, 124 Ohio St.3d at paragraph one of the syllabus. The trial court

reviewed the issue of allied offenses, and merged Wharton’s convictions for felonious assault

into the conviction for felony murder. The entry fails to mention postrelease control.

       {¶7}    During the pendency of this appeal, the Ohio Supreme Court released its decision

in State v. Fischer, which clarified that when a trial court does not properly impose postrelease

control as part of a defendant’s sentence, “that part of the sentence is void and must be set

aside,” and that “only the offending portion of the sentence is subject to review and correction.”

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, at ¶26-27. Thus, “[t]he 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 sentencing hearing.” Id. at paragraph four of the syllabus. The

court further held that res judicata does not preclude review of a void sentence, but it “still
                                                  4


applies to other aspects of the merits of a conviction, including the determination of guilt and the

lawful elements of the ensuing sentence.” Id. at paragraph three of the syllabus.

       {¶8}    In this case, as in Fischer, the only issues arising at the resentencing, and thus

subject to review, were those involving the postrelease-control notification. This is not a case

involving a resentencing pursuant to a remand where the defendant raised an allied offenses issue

on direct appeal, and this Court remanded the matter to the trial court to merge the convictions.

Accord State v. Jones, 9th Dist. No. 25676, 2011-Ohio-4934; State v. Brown, 2011-Ohio-1029,

at ¶11 (concluding that the allied offenses issues were properly before the trial court because the

appellate court had previously mandated the merger of two convictions). As such, issues relating

to allied offenses were not properly before the trial court.

       {¶9}    Pursuant to Fischer, the trial court’s authority was limited to informing Wharton

about mandatory postrelease control. Fischer at paragraph two of the syllabus. It did not have

the authority to merge the offenses and to resentence Wharton. Because the trial court exceeded

its authority by merging the offenses for sentencing, and it failed to properly impose postrelease

control, we vacate the September 30, 2010 judgment entry. Wharton’s original concurrent

sentences remain valid. The matter is remanded to the trial court for resentencing to correct the

void portion of his August 13, 1997 judgment entry, that is, the postrelease control portion of his

sentence, leaving the remainder of Wharton’s sentence intact.

       {¶10} Wharton’s arguments in his first and second assignments of error pertain to the

merits of his underlying conviction. Subject to post-conviction remedies that may be available, it

is long-standing precedent in Ohio that res judicata bars the consideration of issues that were

raised or could have been raised on direct appeal. State v. Saxon, 109 Ohio St.3d 176, 2006-

Ohio-1245, at ¶16-17. Because Wharton has already “had the benefit of one direct appeal, [he
                                                  5


can]not raise any and all claims of error in a * * * successive appeal.” See Fischer at ¶33, citing

State v. Fischer, 181 Ohio App.3d 758, 2009-Ohio-1491. “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.” Fischer at paragraph three of the syllabus. Further, “[t]he 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.” Id. at paragraph four of the syllabus.

       {¶11} Wharton has appealed from his resentencing hearing. He may only raise issues

arising from that resentencing hearing because issues concerning the merits of his convictions

are barred by res judicata. See, e.g., State v. Cook, 9th Dist. No. 25276, 2010-Ohio-6524.

Because each assignment of error pertains to the merits of his original conviction, our review of

Wharton’s assignments of error is barred.

                                                 III.

       {¶12} We decline to address Wharton’s assignments of error. Wharton’s original

concurrent sentences remain intact, and the matter is remanded for further proceedings consistent

with this opinion.

                                                                                 Judgment vacated
                                                                               and cause remanded.




       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.
                                                6


       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.




                                                    CARLA MOORE
                                                    FOR THE COURT



BELFANCE, P. J.
CARR, J.
CONCUR


APPEARANCES:

JANA DELOACH, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
