[Cite as State v. Cottrill, 2011-Ohio-4599.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :      JUDGES:
                                               :      Hon. Sheila G. Farmer, P.J.
    Plaintiff - Appellee                       :      Hon. John W. Wise, J.
                                               :      Hon. Julie A. Edwards, J.
-vs-                                           :
                                               :
JAMES L. COTTRILL                              :      Case No. 10-CA-128
                                               :
    Defendant - Appellant                      :      O P I N IO N




CHARACTER OF PROCEEDING:                           Appeal from the Court of Common Pleas,
                                                   Case No. 03CR521



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT:                                  September 12, 2011




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

TRACY F. VAN WINKLE                                ERIC W. BREHM
20 South Second Street                             604 East Rich Street
4th Floor                                          Suite 2100
Newark, OH 43055                                   Columbus, OH 43215
Licking County, Case No. 10-CA-128                                                   2

Farmer, P.J.

      {¶1}     On April 20, 2004, appellant, James Cottrill, pled guilty to one count of

aggravated robbery in violation of R.C. 2911.01 and one count of kidnapping in violation

of R.C. 2905.01. Both counts carried firearm specifications. By judgment entry filed

same date, the trial court sentenced appellant to an aggregate term of eight years in

prison. The sentence was ordered to be served consecutively to a sentence appellant

received in Pickaway County, Ohio.

      {¶2}     On August 27, 2010, appellant filed a motion for de novo sentencing as

his original sentence did not include a term of postrelease control. A hearing was held

on October 18, 2010. Appellant requested a continuance in order to call witnesses.

The trial court denied the request. By nunc pro tunc judgment entry filed October 19,

2010, the trial court resentenced appellant to the eight year aggregate term 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 DID ERR BY IMPOSING MULTIPLE PRISON

SENTENCES, WHEN THE OFFENSES WERE ALLIED OFFENSES OF SIMILAR

IMPORT.

                                             II

      {¶5}     "THE TRIAL COURT DID ERR BY REFUSING TO GRANT THE

DEFENDANT'S REQUEST FOR A CONTINUANCE."
Licking County, Case No. 10-CA-128                                                        3


                                              III

       {¶6}   "THE TRIAL COURT DID ERR BY IMPOSING CONSECUTIVE

SENTENCES."

                                              IV

       {¶7}   "THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL."

                                         I, II, III, IV

       {¶8}   Appellant claims the trial court erred in imposing multiple prison terms,

denying his request for a continuance, and imposing consecutive sentences. Appellant

also claims ineffective assistance of counsel for counsel's failure to object to the multiple

prison terms. We disagree.

       {¶9}   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:

       {¶10} "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."

       {¶11} In this case, 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. However, in State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, syllabus, the Supreme Court of Ohio limited the nature of the de novo

hearing:
Licking County, Case No. 10-CA-128                                                      4


      {¶12} "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.

      {¶13} "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.)

      {¶14} "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.

      {¶15} "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."

      {¶16} 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

postrelease control requirement under R.C. 2967.28(B).        T. at 10; Nunc Pro Tunc

Judgment Entry filed October 19, 2010.

      {¶17} Pursuant to Fischer, the issues of multiple prison terms/allied offenses of

similar import and consecutive sentences were not reviewable during this hearing. See,

State v. Griffis, Muskingum App. No. CT2010-57, 2011-Ohio-2955; State v. Pugh, Stark

App. No. 2010CA00173, 2011-Ohio-812. The ineffective assistance of counsel claim

related to the allied offenses argument is moot.
Licking County, Case No. 10-CA-128                                                     5


      {¶18} As for the continuance request, appellant sought to present witnesses on

his behalf.    Pursuant to Fischer, the hearing was not about gathering additional

testimony and/or evidence, but the proper imposition of postrelease control. The trial

court did not abuse its discretion in denying appellant's request for a continuance of the

hearing. State v. Unger (1981), 423 Ohio St.2d 65.

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

      {¶20} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Edwards, J. concur.




                                            _s/ Sheila G. Farmer_________________



                                            _s/ John W. Wise__________________



                                            _s/ Julie A. Edwards__________________

                                                           JUDGES

SGF/sg 822
[Cite as State v. Cottrill, 2011-Ohio-4599.]


                     IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                                   :
                                                :
         Plaintiff-Appellant                    :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
JAMES L. COTTRILL                               :
                                                :
         Defendant-Appellant                    :       CASE NO. 10-CA-128




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

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

appellant.




                                                _s/ Sheila G. Farmer_________________



                                                _s/ John W. Wise__________________



                                                _s/ Julie A. Edwards__________________

                                                            JUDGES
