[Cite as State v. Thomas, 2011-Ohio-4226.]


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

STATE OF OHIO                                          C.A. No.      25590

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
CEDRIC P. THOMAS                                       COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 08 02 0459 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: August 24, 2011



        DICKINSON, Judge.

                                             INTRODUCTION

        {¶1}    Cedric Thomas pleaded guilty to trafficking in cocaine, possession of cocaine,

having weapons while under disability, and possession of criminal tools, and the trial court

sentenced him to 10 years in prison.           Mr. Thomas did not appeal.    When the trial court

discovered later that it had not properly imposed post-release control, it held a hearing and issued

a nunc pro tunc journal entry to correct its original sentencing entry. Mr. Thomas has appealed,

assigning two errors regarding the validity of his convictions and sentence. We affirm because

Mr. Thomas’s arguments are barred by the doctrine of res judicata.

                                             RES JUDICATA

        {¶2}    Mr. Thomas’s first assignment of error is that the trial court incorrectly sentenced

him under the statutory requirements for crack cocaine instead of powder cocaine. His second

assignment of error is that the trial court incorrectly determined that his trafficking and
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possession of cocaine convictions are not allied offenses of similar import. The State has argued

that Mr. Thomas’s arguments are barred by the doctrine of res judicata because he could have

raised them on appeal from the trial court’s original sentencing entry.

       {¶3}    The trial court held a hearing and issued a nunc pro tunc sentencing entry because

it determined that it had not correctly imposed post-release control. Under Section 2929.19.1 of

the Ohio Revised Code, “[i]f . . . a court imposed a sentence including a prison term . . . and

failed to notify the offender . . . that the offender will be supervised under section 2967.28 of the

Revised Code after the offender leaves prison or to include a statement to that effect in the

judgment of conviction . . . , at any time before the offender is released from imprisonment under

that term and at a hearing conducted in accordance with division (C) of this section, the court

may prepare and issue a correction to the judgment of conviction that includes in the judgment of

conviction the statement that the offender will be supervised under section 2967.28 of the

Revised Code after the offender leaves prison.” In State v. Singleton, 124 Ohio St. 3d 173, 2009-

Ohio-6434, the Ohio Supreme Court explained that Section 2929.19.1 allows a trial court to

“correct an original judgment of conviction by placing on the journal of the court a nunc pro tunc

entry that includes a statement that the offender will be supervised under R.C. 2967.28 after the

offender leaves prison and that the parole board may impose a prison term of up to one-half of

the stated prison term originally imposed if the offender violates postrelease control.” Id. at ¶23.

       {¶4}    In State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, the Ohio Supreme Court

held that a trial court’s mistake in imposing post-release control renders its entire judgment void.

Id. at ¶16. In State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, however, the Court

modified Bezak, clarifying that only the part of the sentence that was in error is void. Id. at

paragraph two of the syllabus. It also held that “[t]he scope of an appeal from a resentencing
                                                3


hearing in which a mandatory term of post-release control is imposed is limited to issues arising

at the resentencing hearing.” Id. at ¶40. “[R]es 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.” Id.

       {¶5}    Although the part of the trial court’s original sentencing entry that imposed post-

release control was void, the rest was not, including the trial court’s determination that Mr.

Thomas should be sentenced under the statutory requirements for crack cocaine and its

determination that Mr. Thomas’s convictions are not allied offenses of similar import. See State

v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, at ¶27. Mr. Thomas could have appealed the

trial court’s original sentencing entry on those grounds, but did not. Accordingly, his arguments

are barred by the doctrine of res judicata. See State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-

3831, at ¶59 (“Res judicata bars the assertion of claims against a valid, final judgment of

conviction that have been raised or could have been raised on appeal.”); State v. Rexroad, 9th

Dist. No. 22214, 2004-Ohio-6271, at ¶8 (“That a defendant failed to directly appeal from his

conviction and sentence does not prevent the application of the doctrine of res judicata.”). Mr.

Thomas’s assignments of error are overruled.

                                         CONCLUSION

       {¶6}    Although the trial court incorrectly imposed post-release control, only that part of

its sentencing entry was void. Res judicata bars Mr. Thomas from assigning errors that he could

have assigned on appeal from the trial court’s original sentencing entry. The judgment of the

Summit County Common Pleas Court is affirmed.

                                                                               Judgment affirmed.
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       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.

       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.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT



CARR, P. J.
WHITMORE, J.
CONCUR

APPEARANCES:

JANA DELOACH, Attorney at Law, for Appellant.

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