[Cite as State v. Bickerstaff, 2012-Ohio-1693.]

                            STATE OF OHIO, JEFFERSON COUNTY

                                    IN THE COURT OF APPEALS

                                          SEVENTH DISTRICT


STATE OF OHIO,                                    )
                                                  )   CASE NO. 11 JE 12
        PLAINTIFF-APPELLEE,                       )
                                                  )
        - VS -                                    )         OPINION
                                                  )
TERRY L. BICKERSTAFF,                             )
                                                  )
        DEFENDANT-APPELLANT.                      )


CHARACTER OF PROCEEDINGS:                             Criminal Appeal from Common Pleas
                                                      Court, Case No. 09 CR 36.


JUDGMENT:                                             Modified in Part and Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                               Attorney Jane Hanlin
                                                      Prosecutor
                                                      Jefferson County Justice Center
                                                      16001 State Route 7
                                                      Steubenville, OH 43952

For Defendant-Appellant:                              Attorney Eric Reszke
                                                      Suite 810
                                                      Sinclair Building
                                                      Steubenville, OH 43952


JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Gene Donofrio


                                                      Dated: March 30, 2012
[Cite as State v. Bickerstaff, 2012-Ohio-1693.]
DeGenaro, J.
        {¶1}     Defendant-Appellant, Terry L. Bickerstaff, appeals the April 19, 2011
judgment of the Jefferson County Court of Common Pleas sentencing him to 36 years to
life in prison on one count of aggravated murder with firearm and gang specifications,
following a remand from this court for resentencing due to a merger issue. On appeal,
Bickerstaff contends his sentence was erroneous. Upon review, the sentence imposed
by the trial court was reasonable based upon the applicable sentencing factors.
However, the court erred by imposing post-release control upon Bickerstaff as this is not
required for an aggravated murder conviction. Accordingly, the judgment of the trial court
is modified in part and affirmed. Bickerstaff's sentence is modified to remove only the
post-release control sanction.
                                   Facts and Procedural History
        {¶2}     In State v. Bickerstaff, 7th Dist. No. 09 JE 33, 2011-Ohio-1345 (Bickerstaff
I), this court summarized the pertinent facts of the case as follows:

                 On March 19, 2009, Bickerstaff was indicted for aggravated murder,
        in violation of R.C. 2903.01(A), and murder, in violation of R.C. 2903.02(B),
        with firearm and gang specifications, pursuant to R.C. 2941.145(A) and
        R.C. 2941.142, respectively. The indictment stemmed from the March 7,
        2009 shooting of Darrell Longmire, in the presence of multiple witnesses.
        Bickerstaff entered a plea of not guilty, and his case proceeded to a jury
        trial on July 30, 2009.
                 The undisputed testimony of various witnesses established that
        Bickerstaff and Longmire engaged in a brief altercation inside the
        convenience store at a gas station, during the early evening of March 7,
        2009. Among the witnesses to the altercation were Willette Fordham and
        Danielle Thompson, friends of Longmire, as well as Michelle McGee,
        Bickerstaff's girlfriend. Witness testimony varied regarding the extent to
        which the two men attempted to harm one another. As the two men
        fought, witnesses testified that McGee began to yell, among other things,
        the phrase 'Su-Woo,' which is commonly used by members of the Bloods
                                                                                         -2-


       to indicate their presence. After a store employee told all of the parties to
       leave, Longmire departed with Fordham and Thompson in Fordham's van
       and Bickerstaff departed with McGee in a white truck.
              Upon leaving the gas station, Fordham drove to her house.
       Longmire then walked to his nearby house to drop off some items, and
       shortly returned to Fordham's house. Longmire and a number of other
       people then stood around the front of Fordham's house together to
       socialize. A few minutes later, Bickerstaff and another man drove up to
       Fordham's house in a black Lincoln and got out of the vehicle. Bickerstaff
       pulled out a firearm and shot Longmire in the chest at close range, causing
       his death. Bickerstaff I at ¶4-6.

       {¶3}   This court went on to describe the evidence introduced by the State to
support the fact that the shooting was gang related and that Bickerstaff was affiliated with
the Bloods, while the victim, Longmire, was affiliated with the rival Crips gang. Id. at ¶7-9.
       {¶4}   The jury returned guilty verdicts for the charges of murder, aggravated
murder, and the firearm and gang specifications. The trial court immediately proceeded
to sentencing and imposed 30 years to life for the aggravated murder and 15 years to life
for murder to be served concurrently with each other but consecutively to the three years
for each of the specifications, making an aggregate sentence of 36 years to life.
       {¶5}   On appeal to this court, Bickerstaff raised four assignments of error, three of
which this court found meritless. The meritorious assignment of error concerned the trial
court's failure to merge the aggravated murder and murder convictions. To that end, this
court held:

              The record reflects that Bickerstaff committed the offenses of
       aggravated murder and murder through the single act of shooting
       Longmire, and with the single state of mind. The trial court therefore
       committed plain error by failing to merge Bickerstaff's convictions for
       murder and aggravated murder. The State "retains the right to elect which
                                                                                       -3-


       allied offense to pursue on sentencing on a remand to the trial court after
       an appeal." State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922
       N.E.2d 182, at ¶21. This court must therefore remand the issue to the trial
       court for a de novo sentencing hearing during which the State may elect to
       pursue either Bickerstaff's murder or aggravated murder conviction, along
       with their corresponding firearm and gang specifications, for sentencing
       purposes.      Accordingly, Bickerstaff's fourth assignment of error is
       meritorious. Bickerstaff I at ¶76.

       {¶6}   On remand, the trial court held a resentencing hearing. The State elected to
pursue the aggravated murder conviction, and thus the murder charge was dismissed.
The court heard brief arguments from both sides, and allowed Bickerstaff to make a
statement. After considering the record, the oral statements, the trial testimony, as well
as the purposes and principles of sentencing under R.C. 2929.11, and after balancing the
seriousness and recidivism factors under R.C. 2929.12, the court sentenced Bickerstaff to
30 years to life for aggravated murder, to be served consecutively to the three-year
firearm specification and three-year gang specification. The court issued a Judgment
Entry of Re-Sentence on April 19, 2011, from which Bickerstaff timely appeals.
                                            Sentencing
       {¶7}   In his sole assignment of error, Bickerstaff asserts:
       {¶8}   "The trial court committed reversible error in sentencing the Defendant to
life imprisonment with parole eligibility after thirty-six (36) years."
       {¶9}   When reviewing a felony sentence, an appellate court first reviews the
sentence to ensure that the sentencing court clearly and convincingly complied with the
applicable laws. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,
¶4. A trial court's sentence would be contrary to law if, for example, it were outside the
statutory range, in contravention to a statute, or decided pursuant to an unconstitutional
statute. Id. at ¶15. If this inquiry is satisfied, an appellate court then reviews the trial
court's sentencing decision for abuse of discretion. Kalish at ¶17, 19-20. An abuse of
                                                                                        -4-


discretion means more than an error of law or judgment; but rather implies that the court's
attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d
151, 157, 404 N.E.2d 144 (1980).
       {¶10} With regard to the first prong of the inquiry, Bickerstaff's sentence is not
contrary to law. The 36-year-to-life aggregate sentence he received, i.e., 30 years to life
for the aggravated murder charge to be served consecutively to the three-year mandatory
sentence for the firearm specification, and the three-year sentence for the gang
specification, was within the statutory range (from 24 years to life, up to life without
parole). See R.C. 2903.03(A); 2929.02; 2929.03(A)(1); 2941.145(A); 2929.14(D)(1)(a)(ii);
2941.142; 2929.14(I). In addition, although not required, the trial court expressly stated
that it had considered the principles and factors contained in R.C. 2929.11 and 2929.12.
Further, Bickerstaff was afforded his allocution rights pursuant to Crim.R. 32(A)(1).
       {¶11} However, the trial court erroneously imposed a five-year mandatory post-
release control term upon Bickerstaff, since "an individual sentenced for aggravated
murder * * * is not subject to postrelease control, because that crime is an unclassified
felony to which the postrelease-control statute does not apply. R.C. 2967.28. Instead,
such a person is either ineligible for parole or becomes eligible for parole after serving a
period of 20, 25, or 30 years in prison." State v. Clark, 119 Ohio St.3d 239, 893 N.E.2d
462, ¶46. "R.C. 2967.28 applies only to felonies classified by degrees.           The gun
specification that accompanied his charge for aggravated robbery was not itself a
separate felony charge. In this case, the gun specification was linked to the charge of
aggravated robbery which is a felony of the first degree." State v. Spears, 9th Dist. No.
24953, 2010-Ohio-1965, ¶10. Although not specifically raised as error by Bickerstaff,
because neither the aggravated murder charge nor the gang and gun specifications are
subject to post-release control, this court will modify the sentence to delete the term of
post-release control only. App.R. 12(A)(1)(a).
       {¶12} Turning to the second prong of the test, the trial court's overall sentence
was not an abuse of discretion. The trial court thoroughly laid out its reasoning behind
imposing the maximum sentence in this case. Bickerstaff had a criminal history and
                                                                                        -5-


during his allocution statement demonstrated no remorse for his crime. The crime was
made more serious by the fact that there was serious physical harm to the victim (death),
and because several minors were in the vicinity of the shooting and could have been
harmed.
       {¶13} Bickerstaff contends that the trial court's sentencing decision was
unreasonable because of his young age at the time of the crime (24), that he had no
juvenile adjudications, and because he was allegedly provoked by the victim. With regard
to the last point, as this court noted in Bickerstaff I, there was no evidence of provocation
in this case, and in fact, Bickerstaff was convicted of aggravated murder, which involves
prior calculation and design. See R.C. 2903.03(A), Bickerstaff I at ¶17-22. With regard to
the other arguments, the trial court reasonably concluded that other factors weighed more
strongly in favor of the 36-year-to-life sentence. It was well within the trial court's
discretion to make that determination, which, in fact, was not the maximum sentence the
court could have imposed.
       {¶14} Thus, Bickerstaff's sole assignment of error is meritorious in part. Although
the trial court's sentence was reasonable, the court erred by imposing post-release
control where none is required for an aggravated murder conviction. Accordingly, the
judgment of the trial court is modified in part and affirmed. Bickerstaff's sentence is
modified to remove only the post-release control sanction.
Waite, P.J., concurs.
Donofrio, J., concurs.
