[Cite as State v. Lewis, 2013-Ohio-809.]




               IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :            C.A. CASE NO.    2012-CA-31

v.                                                  :            T.C. NO.   04CR295

MICHAEL T. LEWIS                                    :            (Criminal appeal from
                                                                 Common Pleas Court)
        Defendant-Appellant                         :

                                                    :

                                            ..........

                                            OPINION

                          Rendered on the     8th       day of      March    , 2013.

                                            ..........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecutor, 61 Greene St.,
Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

 MARK A. DETERS, Atty. Reg. No. 0085094, 1800 Lyons Road, Dayton, Ohio 45458
    Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

                 {¶ 1} Michael T. Lewis appeals from a judgment of the Greene County

Court of Common Pleas, which resentenced him, on the State’s motion, due to the improper
                                                                                                                                   2

imposition of postrelease control in the original sentencing proceedings. For the following

reasons, the judgment of the trial court will be affirmed.

         {¶ 2}         In 2004, Lewis pled guilty to one count of engaging in a pattern of corrupt

activity (Count 1), one count of conspiracy to engage in a pattern of corrupt activity (Count

2), five counts of burglary, one count of attempted burglary, one count of receiving stolen

property, and one count of possession of criminal tools. In exchange for his plea, the

prosecutor agreed to recommend three-year sentences on Counts 1 and 2, to be served

concurrently, and to recommend community control on the remaining counts. The trial

court sentenced Lewis to ten years on Count 1, seven years on Count 2, and to lesser prison

sentences on the other counts, all to be served concurrently, for an aggregate term of ten

years. The judgment ordered Lewis to pay restitution in the amount of $12,198.19 and

stated that postrelease control was mandatory “up to a maximum of 5 years.” We affirmed

his conviction and sentence on appeal. State v. Lewis, 2d Dist. Greene No. 2004-CR-295,

2005-Ohio-3736.

         {¶ 3}       In January 2012, the State filed a Motion to Correct Post Release Control.

After a hearing at which Lewis participated by video-conferencing, the trial court imposed a

mandatory term of postrelease control of five years on Count 1 and imposed lesser amounts

of mandatory or “optional” postrelease control on all of the other counts.1 In response to an


             1
                Although the trial court set forth multiple terms of postrelease control, only one may be served. See, e.g., State v.
   Jones, 2d Dist. Greene No. 2012 CA 8, 2012-Ohio-4446, ¶ 9, citing State v. Simpson, 8th Dist. No. 88301, 2007-Ohio-4301, ¶ 109
   (“There is nothing in R.C. 2967.28 which permits a trial court to impose multiple periods of postrelease control for each felony
   conviction. When offenders are convicted of multiple first-degree felonies, courts shall impose ‘a mandatory term’ of postrelease
   control, set forth in R.C. 2967.28(B)(1), not multiple terms.”)
                                                                                               3

acknowledgment by the State that Counts 1 and 2 were allied offenses of similar import and

the State’s election to proceed on Count 1, the court merged Count 2 into Count 1. In all

other respects, the original sentence was left undisturbed, and the aggregate sentence

remained 10 years.

        {¶ 4} Lewis raises five assignments of error on appeal.

{¶ 5}    Lewis’s first assignment of error states:

        THE TRIAL COURT ERRED BY FAILING TO CONDUCT A DE NOVO

        RESENTENCING HEARING.

{¶ 6}    Lewis contends that the trial court should have conducted a de novo sentencing

hearing. However, his resentencing hearing was for the limited purpose of correcting a

defect in the imposition of postrelease control. It is well established that, when a trial

court errs in imposing a term of postrelease control at sentencing, “that part of the sentence

is void and must be set aside.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942

N.E.2d 332, ¶ 26. “[O]nly the offending portion of the sentence is subject to review and

correction.” Id. at ¶ 27. Where postrelease control has been improperly imposed, res

judicata applies to all other aspects of the conviction and sentence, including the

determination of guilt and the lawful elements of the sentence. Id. at ¶ 34. See, also, State

v. Wilson, 2d Dist. Montgomery Nos. 24461, 24496, 24501, 2012-Ohio-1660, ¶ 19. The

case upon which Lewis relies, State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920

N.E.2d 958, was reversed by Fischer. Thus, no issues other than postrelease control were

subject to review by the trial court at Lewis’s resentencing hearing, and the trial court did not

err in refusing to sentence him de novo.
[Cite as State v. Lewis, 2013-Ohio-809.]
         {¶ 7}     Based on the holding in Fischer that res judicata applies to all aspects of the

conviction and sentence that are not void, and because of our affirmance of Lewis’s

conviction on direct appeal, it may be questionable whether the trial court had jurisdiction to

merge Counts 1 and 2, despite the State’s acknowledgment that these counts were allied

offenses of similar import. But the State initiated the merger of Counts 1 and 2 in this case,

Lewis arguably benefitted from it, and neither party has challenged the merger on appeal.

Therefore, we will not review the trial court’s merger of these offenses.

{¶ 8}      The first assignment of error is overruled.

{¶ 9}      Lewis’s second assignment of error states:

         THE TRIAL COURT ERRED BY ALLOWING APPELLEE TO BREACH

         ITS PLEA AGREEMENT WITH APPELLANT.

{¶ 10}     At the hearing for the proper imposition of postrelease control, the prosecutor

stated: “The State would incorporate by reference any previous statements put on the record

during the September 2nd, 2004, sentencing hearing. We would ask to impose the same

sentence previously given in this case, * * * .” Lewis contends that the State’s statement

that the trial court should reimpose the original sentence, except with respect to postrelease

control, violated the provision of his plea agreement by which the State agreed to

recommend a sentence of three years on Counts 1 and 2 and community control on the

remaining counts.

{¶ 11}     We disagree with Lewis’s contention that the State violated his plea agreement by

encouraging the trial court to “impose” its original sentence except with respect to

postrelease control. As we discussed above, the trial court was authorized to address only

the portion of the sentence related to postrelease control, because only that portion of its
                                                                                             5

sentence was void. Fischer at ¶ 28. The trial court was not permitted to modify other parts

of the original sentence, and the prosecutor’s statement accurately reflected this fact. The

prosecutor’s statement did not violate the plea agreement upon which Lewis’s original

sentence was based.

       {¶ 12}    The second assignment of error is overruled.

       {¶ 13}    Lewis’s third assignment of error states:

       APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

       COUNSEL.

       {¶ 14}    Lewis claims that his attorney at the resentencing hearing, who had not

previously been involved with his case, did not provide effective assistance of counsel

because she was not prepared, had not reviewed the record, failed to clarify the plea

agreement, and failed to object to the prosecutor’s breach of the plea agreement.

       {¶ 15}     To reverse a conviction based on ineffective assistance of counsel, it must

be demonstrated that trial counsel’s conduct fell below an objective standard of

reasonableness and that the errors were serious enough to create a reasonable probability

that, but for the errors, the result of the trial would have been different. Strickland v.

Washington (1984), 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, adopted by the

Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide

range of reasonable assistance. Id.

       {¶ 16}    We have already discussed the very limited purpose of the resentencing to

properly impose postrelease control in this case and the trial court’s inability to modify any
                                                                                           6

other portion of the sentence. Because of these limitations, even if we were to assume that

counsel failed to review the earlier proceedings, including the plea agreement, we would find

no basis to conclude that Lewis had been prejudiced by this failure or had been denied the

effective assistance of counsel. The earlier proceedings were not directly relevant to the

matter before the court at the 2012 hearing.         Moreover, we have addressed Lewis’s

argument that his plea agreement was violated at the resentencing hearing; having found this

argument to be without merit, we likewise find that he was not denied the effective

assistance of counsel by counsel’s failure to raise this argument.

       {¶ 17}    The third assignment of error is overruled.

       {¶ 18}    Lewis’s fourth and fifth assignments of error state:

       THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

       APPELLANT TO A MAXIMUM PRISON SENTENCE.

       THE TRIAL COURT ERRED BY FAILING TO GIVE ITS REASONS FOR

       DISAPPROVING INTENSIVE PROGRAM PRISON AT SENTENCING.

       {¶ 19}    Lewis’s fourth and fifth assignments address sentencing issues unrelated to

postrelease control. As we stated above, the trial court was not at liberty to alter those

sentences because we had affirmed Lewis’s convictions on appeal, and they “remain[ed]

valid under the principles of res judicata.’” Fischer at ¶ 17. The trial court did not err in

failing to revisit these issues. Moreover, Lewis was not eligible for intensive program

prison, because he had been convicted of a felony of the first degree. R.C. 5120.032(B)(2);

State v. Barron, 2d Dist. Montgomery Nos. 25059 and 25074, 2012-Ohio-5787, ¶ 9.

       {¶ 20}    The fourth and fifth assignments of error are overruled.
[Cite as State v. Lewis, 2013-Ohio-809.]
        {¶ 21}     The judgment of the trial court will be affirmed.

                                           ..........

FAIN, P.J. and WELBAUM, J., concur.



Copies mailed to:

Nathaniel R. Luken
Mark A. Deters
Hon. Stephen A. Wolaver
