[Cite as State v. Fields, 2012-Ohio-6086.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :
                                               :     Hon. Patricia A. Delaney, P.J.
                     Plaintiff-Appellee        :     Hon. Sheila G. Farmer, J.
                                               :     Hon. John W. Wise, J.
-vs-                                           :
                                               :     Consolidated Case Nos.
                                                     CT 12-0028 & CT 12-0030
GERALD D. FIELDS                               :
                                               :
                                               :
                     Defendant-Appellant       :     OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Muskingum County Court
                                                   of Common Pleas, Case No. CR2009-0166


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            December 18, 2012



APPEARANCES:

For Appellant:                                       For Appellee:

DAVID A. SAMS                                        RONALD L. WELCH
Box 40                                               Assistant Prosecuting Attorney
West Jefferson, OH 43162                             27 N. 5th Street, Suite 201
                                                     P.O. Box 189
                                                     Zanesville, OH 43702-0189
[Cite as State v. Fields, 2012-Ohio-6086.]


Delaney, J.

        {¶1} Appellant Gerald D. Fields appeals from the April 24 and May 9, 2012

judgment entries of the Muskingum County Court of Common Pleas overruling his

motion to withdraw plea, resentencing him, and correctly advising him of postrelease

control. Appellee is the state of Ohio.

                               FACTS AND PROCEDURAL HISTORY

        {¶2} This case arose on August 6, 2009, when appellant sold crack cocaine to

a confidential informant in the parking lot of the Bob Evans restaurant on Underwood

Street in Zanesville, Ohio. Appellant drove a 1990 Cadillac during the transaction.

        {¶3} Appellant was charged by indictment with 13 criminal counts, and all but

two were dismissed by appellee in exchange for appellant’s guilty pleas. Appellant

ultimately entered pleas of guilty to one count of trafficking in crack cocaine in an

amount greater than or equal to 10 grams but less than 25 grams in violation of R.C.

2925.03(A)(1), a felony of the second degree; this offense included a forfeiture

specification pursuant to R.C. 2941.1417. Appellant also entered a guilty plea to one

count of permitting drug abuse pursuant to R.C. 2925.13(A), a felony of the fifth

degree.

        {¶4} Appellant waived his rights and entered pleas of guilty before the trial

court on October 13, 2009. On the record at the plea hearing, the trial court advised

appellant he was subject to postrelease control for “up to three years.”

        {¶5} On November 9, 2009, appellant was sentenced to an aggregate prison

term of 9 years.
Muskingum County, Case No. CT 12-0030                                                 3


      {¶6} Appellant directly appealed from his conviction and sentence and we

affirmed both in State v. Fields, 5th Dist. No. CT2009-0057, 2010-Ohio-6233, appeal

not allowed, 128 Ohio St.3d 1459, 2011-Ohio-1829, 945 N.E.2d 523 [Fields I].

Appellant argued, e.g., his plea was not knowing, voluntary, and intelligent because

the trial court advised him he could receive “up to” three years of post-release control

instead of a mandatory term of three years post-release control.         We overruled

appellant’s arguments because although the trial court misstated the term of post-

release control during the plea colloquy, the 3-year mandatory term was correctly

stated in the written plea form signed and acknowledged by appellant.         We held,

therefore, the trial court substantially complied with Crim.R. 11 regarding the duration

of post-release control. Fields I, supra, 2010-Ohio-6233 at ¶ 20.

      {¶7} On April 19, 2011, appellant filed a Motion for Post-conviction Relief

which was denied on April 21, 2011. On June 21, 2011, appellant filed a Motion to

Vacate or Set Aside Conviction or Sentence, and a motion to amend same on June

23, 2011, which were denied on June 23, 2011. We again affirmed the trial court’s

judgment in State v. Fields, 5th Dist. No. CT2011-0030, 2011-Ohio-5513 [Fields II].

      {¶8} On July 19, 2011, appellant filed a motion for sentence modification

claiming his sentence should be reduced pursuant to H.B. No. 86 due to the bill’s

elimination of the distinction between crack and powder cocaine.        The trial court

denied the motion and we again affirmed the judgment of the trial court in State v.

Fields, 5th Dist. No. CT11-0037, 2011-Ohio-6044, appeal not allowed, 131 Ohio St.3d

1472, 2012-Ohio-896, 962 N.E.2d 804 [Fields III].
Muskingum County, Case No. CT 12-0030                                                 4


       {¶9} On March 5, 2012, appellant filed a Motion to Withdraw Plea which was

denied by the trial court on April 24, 2012.

       {¶10} On May 7, 2012, the trial court resentenced appellant solely for the

purpose of advising appellant he was subject to a 3-year mandatory term of

postrelease control.

       {¶11} Appellant filed two appeals, one from the judgment entry denying his

motion to withdraw his guilty plea and one from the judgment entry of resentencing.

We consolidated both appeals herein.

       {¶12} Appellant raises two Assignments of Error:

       {¶13} “I.    THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS

CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS

WHEN THE TRIAL COURT OVERRULED HIS MOTION TO WITHDRAW HIS PLEA.”

       {¶14} “II.   THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS

CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS

WHEN THE TRIAL COURT RESENTENCED HIM TO A MANDATORY TERM OF

POST-RELEASE CONTROL WITHOUT AFFORDING HIM A DE NOVO HEARING

UNDER HB 86.”

                                               I.

       {¶15} In his first assignment of error, appellant argues the trial court violated

his state and federal due process rights when it denied his motion to withdraw his

guilty pleas because he was improperly advised of postrelease control in his original

plea colloquy on October 13, 2009. We disagree.
Muskingum County, Case No. CT 12-0030                                                  5


       {¶16} Appellant’s March 5, 2012 “Motion for Leave to Withdraw Guilty Plea”

asserts his plea must be vacated because the trial court improperly advised him of a

period of post-release control of “up to three years” at his original plea hearing on

October 13, 2009. Appellant had the opportunity to litigate this claim in his original

direct appeal; his most recent round of argument is therefore barred under the

doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104

(1967). 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. Id. “Ohio

courts of appeals have applied res judicata to bar the assertion of claims in a motion

to withdraw guilty plea that were or could have been raised on appeal.          State v.

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59, citations omitted.

In Fields I, we found the sentencing entry was neither illegal nor void because the trial

court completely explained the consequences of a violation of the terms of post-

release control, and appellant failed to demonstrate he would not have entered a plea

of guilty but for the statement at the sentencing hearing. State v. Fields, supra, 2010-

Ohio-6233 at ¶ 31. The trial court thus properly overruled appellant’s motion on the

basis of res judicata.

       {¶17} Moreover, we note appellant was resentenced on May 7, 2012, and

properly advised of the mandatory 3-year period of postrelease control.

       {¶18} Accordingly, appellant’s first assignment of error is overruled.
Muskingum County, Case No. CT 12-0030                                                 6


                                           II.

       {¶19} In his second assignment of error, appellant argues he was entitled to a

de novo sentencing hearing. We disagree.

       {¶20} In State v. Fischer, the Ohio Supreme Court held the new sentencing

hearing to which an offender is entitled under Bezak [114 Ohio St.3d 94, 2007-Ohio-

3250, 868 N.E.2d 961] is limited to proper imposition of postrelease control. 128 Ohio

St.3d 92, 99, 2010-Ohio-6238, 942 N.E.2d 332. Appellant contends, however, that he

was resentenced before Fischer was decided and we should therefore apply the

reasoning of State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d

958, which would require the trial court to hold a de novo sentencing hearing. We

explicitly rejected a similar argument in State v. Kirkpatrick, 5th Dist. No. 10-CA-109,

2011-Ohio-4528.

       {¶21} Other appellate courts have agreed Singleton has been effectively

overruled by Fischer, which “abrogates the offender’s entitlement to a de novo

sentencing hearing.” State v. Sanders, 11th Dist. No. 2011-P-0088, ¶ 15, citing State

v. Pesci, 11th Dist. No.2011–L–096, 2012–Ohio–3743, ¶ 9–11; State v. Reid, 2nd Dist.

No. 24841, 2012–Ohio–2666, ¶ 21; State v. Bunting, 5th Dist. Nos.2011 CA00112,

00130, and 00131, 2012–Ohio–445, ¶ 19–20; and State v. Deaver, 4th Dist. No.

10CA7, 2011–Ohio–1393, ¶ 6–9.

       {¶22} We conclude, therefore, appellant is subject to Fischer and the trial court

did not err in resentencing him for the limited purpose of correctly advising him of the

mandatory 3-year term of postrelease control. Appellant’s second assignment of error

is overruled.
Muskingum County, Case No. CT 12-0030                                            7


      {¶23} Having overruled both of appellant’s assignments of error, we therefore

affirm the judgments of the Muskingum County Court of Common Pleas.

By: Delaney, P.J.

Farmer, J. and

Wise, J. concur.



                                     HON. PATRICIA A. DELANEY



                                     HON. SHEILA G. FARMER



                                     HON. JOHN W. WISE


PAD:kgb
[Cite as State v. Fields, 2012-Ohio-6086.]


            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                                               :
                      Plaintiff-Appellee       :
                                               :
-vs-                                           :   JUDGMENT ENTRY
                                               :
GERALD D. FIELDS                               :
                                               :
                                               :   Consolidated Case Nos.
                                                   CT 12-0028 & CT 12-0030
                       Defendant-Appellant     :




       For the reasons stated in our accompanying Opinion on file, the judgments of the

Muskingum County Court of Common Pleas are affirmed.                Costs assessed to

Appellant.




                                             HON. PATRICIA A. DELANEY



                                             HON. SHEILA G. FARMER



                                             HON. JOHN W. WISE
