[Cite as State v. Woodson, 2011-Ohio-1537.]


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

STATE OF OHIO                                         C.A. No.       10CA0012

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ROZELL WOODSON                                        COURT OF COMMON PLEAS
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   06-CR-0270

                                DECISION AND JOURNAL ENTRY

Dated: March 31, 2011



        MOORE, Judge.

        {¶1}    Appellant, Rozell Woodson, appeals from his conviction in the Wayne County

Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}    In a prior appeal, State v. Woodson, 9th Dist. No. 07CA0044, 2008-Ohio-1469,

this Court set forth the underlying factual and procedural history as follows:

        “On July 26, 2007, Wayne County police officers surrounded a residence on
        Cleveland Road in Wooster, Ohio while waiting for Officer Quinn McConnell to
        return to the residence with a search warrant. Officers suspected the house’s
        occupants of drug activity and planned to search the house upon Officer
        McConnell’s arrival. Before he returned, however, officers witnessed a gold
        Dodge Stratus pull up to the house. The car contained three black males, two of
        whom remained in the car while a third exited the vehicle. The passenger who
        exited the vehicle approached the back of the house, disappearing from the
        officers’ view. A short while later, the man returned to the Stratus and the vehicle
        pulled away from the residence.

        “Suspecting that the Stratus’ occupants had engaged in a drug transaction at the
        Cleveland Road residence, officers at the scene radioed and requested that an
        available cruiser respond. Officer McConnell, returning with the search warrant,
        replied that he was in the area and proceeded to find and follow the Stratus.
                                        2


Officer McConnell activated his police cruiser’s lights and the Stratus pulled into
a nearby gas station parking lot. The driver of the Stratus continued to drive the
vehicle slowly through the parking lot. Finally, the Stratus stopped and the front
passenger’s door swung open. Officer McConnell quickly stopped, exited his
cruiser, and shouted for all the occupants to put their hands into the air. Despite
this command, the front passenger closed the door and the vehicle began to move
again. Officer McConnell reseated himself in his cruiser to follow. The Stratus
came to a halt a few seconds later and all three occupants flung their respective
doors open. The driver and front seat passenger then ran from the vehicle while
the backseat passenger remained.

“Officer McConnell stopped his cruiser and chased the two suspects on foot
through a path between several trees at the back of the parking lot. He also
radioed for help and other officers arrived quickly. Officer McConnell continued
to pursue one suspect, later identified as Bennie Woodson (“Bennie”), and
eventually took him into custody. Meanwhile, Officer Bill Belcher arrived and ran
after the other suspect, later identified as Woodson. Officer Belcher chased
Woodson over two fences and was able to taser Woodson before he cleared the
second fence. After Officer Belcher arrested Woodson, he found two cell phones,
a small bag of marijuana, and approximately $2,000 in cash on his person.

“Once the foot chase ended, officers searched the Stratus and the area along
which Bennie and Woodson ran. They discovered a loaded revolver on the ground
where Bennie and Woodson had run. Police also found marijuana in the center
consol of the Stratus and a 12.55 gram bag of crack cocaine on the driver’s seat.

“On July 13, 2006, a grand jury indicted Woodson on the following charges: (1)
drug possession, a felony of the second degree pursuant to R.C. 2925.11; (2) a
forfeiture specification pursuant to R.C. 2925.42; and (3) obstruction of official
business, a felony of the fifth degree pursuant to R.C. 2921.31. On October 16,
2006, Woodson filed a motion to join as a party to the motion to suppress that
James Ballard filed in his criminal case. Ballard, the backseat passenger in the
Stratus who never fled, filed his motion to suppress on August 28, 2006, and the
trial court held a hearing on that motion on September 20, 2006.

“The jury found Woodson guilty of complicity to possess crack cocaine and of
obstructing official business, but not guilty of possessing crack cocaine. On May
10, 2007, the trial court sentenced Woodson to a total of five years in prison.
Recognizing that the court had never ruled on his motion to join as a party in
James Ballard’s motion to suppress and the sentencing entry contained a flaw,
Woodson filed a motion for final appealable orders on May 22, 2007. On May 30,
2007, the trial court granted Woodson’s motion to join in Ballard’s motion to
suppress, but noted that the motion was denied pursuant to State v. Ballard,
Wayne C .P. No. 06CR0276.

“On June 6, 2007, Woodson filed a notice of appeal. On December 10, 2007, this
Court determined that the trial court’s order was not final and appealable because
                                                3


       it did not dispose of the forfeiture specification in the indictment and did not
       comply with State v. Miller, 9th Dist. No. 06CA0046-M, 2007-Ohio-1353.
       Subsequently, Woodson supplemented the record with a corrected journal entry
       containing a dismissal of the forfeiture specification and all of the required
       Crim.R. 32(C) elements.” Id. at ¶2-8.

Woodson’s appeal was then properly before this Court. This Court overruled Woodson’s seven

assignments of error and affirmed the judgment of the Wayne County Court of Common Pleas.

       {¶3}    On December 22, 2009, Woodson filed a petition to vacate his sentence because

he was not sentenced to postrelease control.          On March 3, 2010, the trial court held a

resentencing hearing to inform Woodson of his postrelease control. The trial court’s journal

entry dated, March 24, 2010, reimposed the previous five-year sentence and imposed a

mandatory three years of postrelease control.

       {¶4}    Woodson timely filed a notice of appeal. He raises eight assignments of error for

our review.

                                                II.

                                ASSIGNMENT OF ERROR I

       “THE TRIAL COURT COMMITTED PLAIN ERROR BY MISINFORMING []
       WOODSON OF HIS SENTENCE AT THE SENTENCING HEARING, AND
       BY GIVING HIM A SENTENCE IN THE ENTRY WHICH WAS DIFFERENT
       FROM WHAT WAS ANNOUNCED AT THE HEARING, IN VIOLATION OF
       U.S. CONST. AMEND.[]V, VI, AND XIV, [] OHIO CONST.[]ART.[]I, SEC.
       10[,] R.C.[]2929.19 AND CRIM.R.[]43.”

       {¶5}    In his first assignment of error, Woodson contends that the trial court committed

plain error by misinforming him of his sentence at the sentencing hearing, and by journalizing a

sentence which was different from the sentence pronounced at the hearing, in violation of the

Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I., Section

10, of the Ohio Constitution, R.C. 2929.19, and Crim.R. 43.
                                                 4


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

held that when a “trial court fails to notify an offender that he may be subject to postrelease

control at a sentencing hearing, as required by former R .C. 2929.19(B)(3), the sentence is void *

* * [and t]he offender is entitled to a new sentencing hearing[.]” Id. at ¶16. The Bezak Court

also concluded that the effect of determining that the sentence is void is “‘the judgment is a mere

nullity and the parties are in the same position as if there had been no judgment.’” (Citiations

omitted.) Bezak at ¶12, quoting Romito v. Maxwell (1967), 10 Ohio St.2d 266, 267-268.

       {¶7}    The Bezak holding was modified by State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, at ¶26, which held “that when a judge fails to impose statutorily mandated

postrelease control as part of a defendant’s sentence, that part of the sentence is void and must be

set aside.” (Emphasis added.) Fischer further clarified that “only the offending portion of the

sentence is subject to review and correction.” Id. at ¶27. The Court further explained that the

remainder of the sentence remains valid. Id. at ¶17. Consequently, “the new sentencing hearing

to which an offender is entitled under Bezak is limited to proper imposition of postrelease

control.” Id. at ¶29. In conducting a new sentencing hearing to remedy a postrelease control

error, “only the offending portion of the sentence is subject to review and correction.” Id. at ¶27.

       {¶8}    Here, Woodson filed a petition to vacate his sentence because he was not

sentenced to postrelease control. On March 3, 2010, the trial court held a resentencing hearing to

inform Woodson of his postrelease control. In accordance with Fischer, the postrelease control

portion was the only portion of his sentence subject to review and correction. Id.

       {¶9}    At the hearing, the trial court expressed its intent to re-impose the same sentence.

The trial court explained that if Woodson violated any condition that the parole board imposes,

he “could be sent be sent back to prison for up to one half of the original sentence. And I believe
                                                5


I gave you what is it, six [years]?” Counsel for Woodson incorrectly advised the trial judge that

it was four years, when in actuality it had been a total of five years. Woodson asked the trial

court for a reduced sentence, and the trial court responded that it was “not going to reduce the

amount of time.”

       {¶10} The trial judge stated that “the sentence of four years consecutive will stand, one

year on the F5. Those sentence[s] will be concurrent but consecutive to your Stark County

sentence.” However, in the court’s journal entry dated March 24, 2010 the court provided that

Woodson serve four years on the complicity charge and one year on the obstruction charge, and

that these sentences were to be served consecutively, as opposed to concurrently.

       {¶11} The new sentencing hearing should have been limited to notifying Woodson of

postrelease control and including it in his sentence. See id. at paragraph two of the syllabus.

The trial court, however, exceeded the limited scope of the hearing and attempted to alter the

term of Woodson’s original sentence. The only portion of Woodson’s sentence subject to review

and correction was the postrelease control.

       {¶12} Because the trial court exceeded its authority when it attempted to resentence

Woodson on aspects of his sentence that were not void, we vacate those parts of the resentencing

entry that addressed anything other than postrelease control. Woodson’s original concurrent

sentences remain valid, as does the portion of the appealed resentencing judgment that addresses

postrelease control. This renders Woodson’s first assignment of error moot.

                               ASSIGNMENT OF ERROR III

       “[] WOODSON’S TRIAL COUNSEL WAS INEFFECTIVE, IN VIOLATION
       OF U.S. CONST.[]AMEND. VI AND XIV AND OHIO CONST. ART. I, SEC.
       10.”
                                                 6


                                ASSIGNMENT OF ERROR IV

       “THE TRIAL COURT ERRED BY DENYING [] WOODSON’S MOTION TO
       SUPPRESS.”

                                 ASSIGNMENT OF ERROR V

       “THE TRIAL COURT ERRED BY DENYING [] WOODSON’S RULE 29
       MOTION AS TO COMPLICITY TO POSSESS CRACK COCAINE.”

                                ASSIGNMENT OF ERROR VI

       “THE VERDICT OF GUILTY OF COMPLICITY TO POSSESS CRACK
       COCAINE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                                ASSIGNMENT OF ERROR VII

       “THE TRIAL COURT ERRED BY DENYING [] WOODSON’S RULE 29
       MOTION AS TO THE LEVEL OF OFFENSE ON THE CHARGE OF
       OBSTRUCTING OFFICIAL BUSINESS, BECAUSE THERE WAS
       INSUFFICIENT EVIDENCE OF THE ELEMENT OF CREATING A RISK OF
       PHYSICAL HARM TO PERSONS.”

                               ASSIGNMENT OF ERROR VIII

       “THE VERDICT OF GUILTY OF OBSTRUCTING OFFICIAL BUSINESS AT
       THE FELONY LEVEL WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.”

       {¶13} Each of Woodson’s third, fourth, fifth, sixth, seventh, and eighth assignments of

error pertains to the merits of his underlying conviction. It is long-standing precedent in Ohio

that res judicata bars the consideration of issues that could have been raised on direct appeal.

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, at ¶16-17, citing State v. Hutton, 100 Ohio

St.3d 176, 2003-Ohio-5607, at ¶37; State v. D’Ambrosio (1995), 73 Ohio St.3d 141, 143.

       {¶14} The Ohio Supreme Court has now held that, if a defendant has “already had the

benefit of one direct appeal, [he can] not raise any and all claims of error in a second, successive

appeal.”   Fischer at ¶33, citing State v. Fischer, 181 Ohio App.3d 758, 2009-Ohio-1491.

Accordingly, “[a]lthough the doctrine of res judicata does not preclude review of a void
                                                   7


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.” Id. at paragraph three of

the syllabus.    Further, “[t]he 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.” Id. at paragraph four of the syllabus.

          {¶15} Woodson has appealed from his resentencing hearing, at which the trial court

imposed a mandatory three years of postrelease control. He may only raise issues arising from

that resentencing hearing because issues concerning the merits of his convictions are barred by

res judicata. See, e.g., State v. Cook, 9th Dist. No. 25276, 2010-Ohio-6524. Because each

assignment of error pertains to the merits of his original conviction, our review of Woodson’s

third, fourth, fifth, sixth, seventh, and eighth assignments of error is barred.

                                  ASSIGNMENT OF ERROR II

          “THE TRIAL COURT’S SENTENCE IS EXCESSIVE DUE TO ITS BEING
          CONSECUTIVE TO A SEVENTEEN-YEAR SENTENCE FROM ANOTHER
          COUNTY AND IS ALSO AN UNNECESSARY BURDEN ON PUBLIC
          RESOURCES.”

          {¶16} In his second assignment of error, Woodson contends that the trial court’s

sentence is excessive due to its being consecutive to a seventeen-year sentence from another

county.

          {¶17} Our disposition of the first assignment of error vacates those parts of the

resentencing entry that addressed anything other than postrelease control. Woodson’s original

concurrent sentences remain intact. Woodson’s appeal is limited to issues arising out of the

resentencing hearing, or in the instant matter, the imposition of postrelease control. Fischer at

paragraph four of the syllabus. As stated above, it is long-standing precedent in Ohio that res

judicata bars the consideration of issues that could have been raised on direct appeal. Saxon at
                                                 8


¶16-17, citing Hutton at ¶37; D’Ambrosio, 73 Ohio St.3d at 143. Woodson did not raise this

issue in his direct appeal. According to Fischer, “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.” Fischer at paragraph three of the syllabus. Thus, our review of Woodson’s

second assignment of error is barred.

                                                III.

       {¶18} Because the trial court exceeded its authority when it attempted to resentence

Woodson on aspects of his sentence that were not void, we vacate those parts of the resentencing

entry that addressed anything other than postrelease control. Woodson’s original concurrent

sentences remain intact, as does the portion of the appealed resentencing judgment that addresses

postrelease control. Woodson’s first assignment of error is now moot. We decline to address

Woodson’s remaining assignments of error.

                                                                         Judgment affirmed in part,
                                                                              and vacated in part.




       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 Wayne, 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
                                                9


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


DICKINSON, J.
BELFANCE, P. J.
CONCUR

APPEARANCES:

CLARKE W. OWENS, Attorney at Law, for Appellant.

MARTIN FRANTZ, Prosecuting Attorney, and LATECIA E. WILES, Assistant Prosecuting
Attorney, for Appellee.
