[Cite as State v. Martin, 2011-Ohio-5634.]


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

STATE OF OHIO                                         C.A. No.      25615

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ANTOINE RASHWAN MARTIN                                COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 97 04 0793 (B)

                                 DECISION AND JOURNAL ENTRY

Dated: November 2, 2011



        MOORE, Judge.

        {¶1}     Appellant, Antoine Martin, appeals from his conviction in the Summit County

Court of Common Pleas.            This Court affirms in part, vacates in part, and remands for

proceedings consistent with this opinion.

                                                 I.

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

        “On April 7, 1997, [Martin] and Anwar Shehadah, the victim, were in a
        confrontation outside the Wooster Market in Akron where Anwar worked. Anwar
        allegedly used a knife to keep [Martin] from attacking him. When the police
        arrived at the scene, [Martin] told the police that nothing was wrong and that he
        was just leaving. [Martin] claimed that Anwar cut him with the knife in the leg
        before the police arrived, but he also admitted that he did not share this
        information with the police. [Martin] walked across the street and yelled back to
        Anwar that if Anwar came into the projects, [Martin] would kill him.

        “On April 13, 1997, Anwar worked at the Wooster Market until a little after one
        o’clock in the morning. Anwar’s girlfriend was with Anwar at work and admitted
        that he drank some beer while working that evening. At the end of his shift,
        Anwar and his girlfriend left Wooster Market in a van and drove to Edgewood
        Homes because Anwar wanted to buy some drugs. When they arrived at
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       Edgewood Homes, Anwar’s girlfriend stayed in the van. Anwar got out of the van
       and started looking for someone who would sell him some drugs.

       “In the meantime, [Martin] and his friend, Aaron, had stopped by [Martin]’s
       cousin’s apartment at Edgewood Homes to get some money before meeting two
       females at a nearby motel. While [Martin] and Aaron were at the apartment,
       Anwar knocked on the door. [Martin] opened the door, and Anwar indicated that
       he wanted to purchase some drugs. [Martin] and Aaron stepped into the hallway,
       and [Martin] sold some crack cocaine to Anwar. Anwar put the crack in his
       mouth, decided it was not real crack, and started yelling at [Martin] to give him
       his money back. Colin Kirkland, who lived in the complex and heard the yelling,
       emerged from his apartment wearing a t-shirt and boxer shorts, waved a gun, and
       screamed at them to leave. Kirkland testified that Anwar was holding a crack
       pipe, and Aaron stated that Anwar was holding a screwdriver. [Martin] testified
       that Anwar had a knife and came toward him with the knife. Aaron claimed that
       he never saw Anwar move toward or lunge at [Martin].

       “According to [Martin], Aaron pushed Anwar out the door and down the stairs.
       Pursuant to Aaron’s testimony, [Martin] grabbed Anwar and threw him down the
       stairs. Both [Martin] and Aaron asserted that Anwar landed on his back. [Martin]
       testified that Anwar was on the ground with a knife and was yelling threats about
       taking [Martin]’s life. [Martin] stated that when he walked over to Anwar, he was
       hit by Anwar in the eye. [Martin] then retrieved a branch from a nearby tree and
       proceeded to hit Anwar once in the head and twice in the chest with the tree
       branch. Witnesses testified that they observed [Martin] repeatedly beat Anwar in
       the head with a broomstick or a bat. [Martin] admitted that he did not see anyone
       else beat Anwar with any type of object. Anwar was eventually taken to a
       hospital, where he died from blows that he had sustained to his head.

       “ On April 17, 1997, a Summit County Grand Jury indicted [Martin] on one count
       of murder in violation of R.C. 2903.02, one count of felonious assault in violation
       of R.C. 2903.11(A)(1), and one count of involuntary manslaughter in violation of
       R.C. 2903.04(A). On August 13, 1997, [Martin] was found guilty of all three
       counts. The trial court sentenced [Martin] to an indefinite period of fifteen years
       to life for the murder count, ten years for the involuntary manslaughter count, and
       eight years for the felonious assault count. The trial court further ordered that all
       the sentences be served concurrently.” State v. Martin (Feb. 9, 1999), 9th Dist.
       No. 18715.

       {¶3}   On appeal, this Court affirmed his convictions. On May 14, 2010, Martin filed a

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

control. The State requested that Martin be sentenced de novo pursuant to State v. Singleton, 124

Ohio St.3d 174, 2009-Ohio-6434, paragraph one of the syllabus. A hearing was held on August
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31, 2010. On September 10, 2010, the trial court merged Martin’s convictions for felonious

assault and involuntary manslaughter into the conviction for murder and sentenced Martin to

fifteen years to life. The judgment entry fails to mention postrelease control.

          {¶4}   Martin timely filed a notice of appeal. He raises one assignment of error for our

review.

                                                 II.

                                   ASSIGNMENT OF ERROR

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

          {¶5}   In his sole assignment of error, Martin contends that his conviction must be

vacated because the convictions of felonious assault, involuntary manslaughter and felony

murder are allied offenses of similar import and thus violate his double jeopardy rights.

          {¶6}   Before we address Martin’s assignment of error, we must first determine the

proper scope of the resentencing hearing. Martin filed a motion for resentencing because the

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

resentencing hearing pursuant to State v. Singleton, which 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. At the de novo resentencing

hearing, the trial court reviewed the issue of allied offenses, and merged Martin’s convictions for

felonious assault and involuntary manslaughter into the conviction for murder. The entry fails to

mention postrelease control.
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        {¶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 mandatory postrelease control is imposed is limited to

issues arising at the sentencing hearing.” The court further held that res judicata does not

preclude review of a void sentence, but it “still 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 encompassing the postrelease-control notification. This is not a

case involving a resentencing pursuant to a remand. Accord State v. Jones, 9th Dist. No. 25676,

2011-Ohio-4934; State v. Brown, 2011-Ohio-1029, at ¶11 (concluding that the allied offense

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}    In his prior appeal, Martin argued that involuntary manslaughter and felonious

assault were allied offenses of similar import. See Martin, supra. This Court determined that the

alleged errors did not rise to the level of plain error and affirmed his convictions. Id. 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 Martin has already “had the benefit of one direct appeal, [he can]not raise any
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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. Pursuant to Fischer, the trial court’s authority was

limited to informing Martin about mandatory postrelease control. Fischer at paragraph two of

the syllabus. It did not have the authority to merge the offenses and to resentence Martin.

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 10, 2010 judgment entry.

Martin’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 Martin’s sentence intact.

        {¶10} Based on the foregoing, we decline to address the merits of Martin’s assignment

of error, as it is barred by res judicata.

                                                III.

        {¶11} We decline to address Martin’s assignment of error. Martin’s original concurrent

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

opinion.

                                                                        Judgment affirmed in part,
                                                                                  vacated in part,
                                                                             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



CARR, P. J.
DICKINSON, J.
CONCUR

APPEARANCES:

JANA DELOACH, Attorney at Law, for Appellant.

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