[Cite as State v. Tomlinson, 2014-Ohio-5019.]


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

STATE OF OHIO                                       C.A. No.     27181

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
DARREN JEFFREY TOMLINSON                            COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 10 08 2231 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: November 12, 2014



        WHITMORE, Judge.

        {¶1}    Appellant, Darren Tomlinson, appeals from the judgment of the Summit County

Court of Common Pleas. This Court affirms.

                                                I

        {¶2}    In March 2011, Tomlinson was convicted of two counts of possession of cocaine,

three counts of having weapons while under disability, and one count of possessing criminal

tools. See State v. Tomlinson, 9th Dist. Summit No. 25924, 2013-Ohio-3520, ¶ 2-3. The trial

court sentenced Tomlinson to eleven years in prison, and Tomlinson appealed. Id. at ¶ 3-4. In

March 2012, this Court affirmed his convictions. See State v. Tomlinson, 9th Dist. Summit No.

25924, 2012-Ohio-1441, ¶ 1, vacated by, Tomlinson, 2013-Ohio-3520.

        {¶3}    Subsequently, Tomlinson sought to reopen his appeal based on ineffective

assistance of appellate counsel. This Court granted his motion to reopen and appointed him

appellate counsel. On October 1, 2012, through counsel, Tomlinson filed his appellant’s brief.
                                                   2


In his brief, he raised three assignments of error, each related to the imposition of fines and costs.

See Tomlinson, 2013-Ohio-3520, at ¶ 6, 9. In August 2013, this Court vacated its March 2012

decision, sustained his three assignments of error, and reversed and remanded the case for

resentencing. See id. at ¶ 1, 13.

       {¶4}    On remand, the court held a new sentencing hearing. The court re-imposed

Tomlinson’s 11-year prison sentence and, based on a finding that he was indigent, waived costs

and declined to impose the mandatory fine. Tomlinson now appeals from his resentencing and

raises five assignments of error for our review.

                                                   II

                                    Assignment of Error Number One

       THE TRIAL COURT DENIED TOMLINSON HIS RIGHTS TO DUE
       PROCESS AND A FAIR TRIAL WHEN IT ALTERED EVIDENCE IN
       VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS
       TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10
       AND 16, OF THE OHIO CONSTITUTION.

                                Assignment of Error Number Two

       TOMLINSON’S POSSESSION OF COCAINE CONVICTIONS WERE NOT
       SUPPORTED BY SUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE
       PROCESS CLAUSE OF THE 5TH AND 14TH AMENDMENTS TO THE U.S.
       CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO
       CONSTITUTION[.]

                                Assignment of Error Number Three

       TOMLINSON’S POSSESSION OF COCAINE CONVICTIONS WERE
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION
       OF THE DUE PROCESS CLAUSE OF THE 5TH AND 14TH AMENDMENTS
       TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF
       THE OHIO CONSTITUTION.
                                                3


                               Assignment of Error Number Four

       THE TRIAL COURT ERRED BY IMPOSING FIVE YEAR SENTENCES FOR
       THIRD-DEGREE FELONY CONVICTIONS, IN VIOLATION OF THE FIFTH
       AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION AND
       ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

                                Assignment of Error Number Five

       THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES
       UPON TOMLINSON, IN VIOLATION OF THE FIFTH AND FOURTEENTH
       AMENDMENTS OF THE U.S. CONSTITUTION AND ARTICLE I, SECTION
       10 OF THE OHIO CONSTITUTION.

       {¶5}    In his first assignment of error, Tomlinson argues that the trial court erred in

altering an exhibit after it had been stipulated to and admitted into evidence. In his second and

third assignments of error, Tomlinson argues that his convictions for possession of cocaine are

not supported by sufficient evidence and are against the manifest weight of the evidence. In his

fourth assignment of error, he argues that the court erred in not applying the current sentencing

statute when resentencing him. Lastly, in his fifth assignment of error, Tomlinson argues that the

court erred when it did not make the required statutory findings when it imposed consecutive

sentences. We do not reach the merits of Tomlinson’s arguments because we conclude that they

are all beyond the scope of his resentencing.

       {¶6}    In his reopened appeal, we concluded that the trial court erred when it failed to

comply with R.C. 2947.23 when imposing costs.            Tomlinson, 2013-Ohio-3520, at ¶ 6-8.

Because the court failed to comply with the statute, “we reverse[d] the trial court’s imposition of

court costs and remand[ed] for the proper imposition of court costs in accordance with the

requirements set forth in R.C. 2947.23(A)(1).” (Internal quotation and citation omitted.) Id. at ¶

8. The court’s failure to comply with R.C. 2947.23 did not render Tomlinson’s entire sentence

void. See State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, ¶ 22.
                                                  4


       {¶7}       We further concluded, in that reopened appeal, that the court had erred when it

imposed a mandatory financial sanction without determining Tomlinson’s “present and future

ability to pay,” in violation of former R.C. 2929.19(B)(6). Tomlinson, 2013-Ohio-3520, at ¶ 9-

12. We, therefore, reversed and remanded the case for resentencing in compliance with the

statute. This, however, did not render his entire sentence void. See State v. Moore, 135 Ohio

St.3d 151, 2012-Ohio-5479, syllabus.        Tomlinson’s sentence was only reversed as to the

imposition of fines and costs, and his resentencing was limited to these matters. See id. at ¶ 17;

Joseph at ¶ 24.

       {¶8}       “The scope of an appeal from a new sentencing hearing is limited to issues that

arise at the new sentencing hearing.” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, ¶

30. Because Tomlinson’s resentencing was limited to the imposition of fines and costs, he is

limited to these issues in this appeal from his resentencing. See id. at ¶ 15, citing State v. Saxon,

109 Ohio St.3d 176, 2006-Ohio-1245, paragraph three of the syllabus (“[T]he sentences for any

offenses that were not affected by the appealed error are not vacated and are not subject to

review.”). Tomlinson, however, does not raise any argument about fines and costs. Tomlinson’s

assignments of error are related to issues outside the scope of the remand for resentencing, and

therefore, are outside the scope of this appeal. See State v. Williams, 9th Dist. Summit No.

27101, 2014-Ohio-1608, ¶ 18.

       {¶9}       Tomlinson’s assignments of error are overruled.

                                                 III


       {¶10} Tomlinson’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.
                                                 5


                                                                              Judgment affirmed.




       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(C). 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.




                                                     BETH WHITMORE
                                                     FOR THE COURT



HENSAL, P. J.
CONCURS.

MOORE, J.
DISSENTING.

       {¶11} Because I believe this Court can consider all of the assignments of error that Mr.

Tomlinson has presented on appeal, I respectfully dissent from this Court’s decision.
                                                 6


       {¶12} Mr. Tomlinson presented this Court with several assignments of error in his first

appeal. After his conviction was affirmed, Mr. Tomlinson filed his pro se application to reopen.

This Court concluded that he had shown a genuine issue as to whether he was deprived of the

effective assistance of counsel on appeal with respect to only one of the proposed assignments of

error. This Court granted his application for reopening on that basis alone (pursuant to App.R.

26(B)(7), which grants an appellate court discretion to limit its review to those assignments of

error that were not previously considered), reinstated the appeal, and appointed new appellate

counsel. State v. Tomlinson, 9th Dist. Summit No. 25924, July 10, 2012 Journal Entry at 6. Mr.

Tomlinson’s new appellate counsel raised three assignments of error, all related to the fines and

costs issue on which this Court granted reopening. This Court found that Mr. Tomlinson’s first

appellate counsel was ineffective, vacated its prior judgment, reversed the trial court’s judgment,

and remanded for resentencing, as required by App.R. 26(B)(9).

       {¶13} This Court granted Mr. Tomlinson’s application to reopen because he

demonstrated a genuine issue as to whether he was deprived of the effective assistance of

counsel on appeal. App.R. 26(B) requires this Court, if it finds that appellate counsel was

ineffective, to vacate its prior judgment. When combined with limiting his reopened appeal to

the fines and costs issues, the end result is that Mr. Tomlinson’s direct appeal as of right has been

limited to only the fines and costs issue. This result could not have been the intent of the

Supreme Court when it decided State v. Murnahan, 63 Ohio St.3d 60 (1992), the case that lead to

the adoption of App.R. 26(B).

       {¶14} The Murnahan Court focused on doing justice, going so far as to limit the

application of res judicata if it would be unjust. State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-

4608, ¶ 10, citing Murnahan.       “App.R. 26(B) creates a special procedure for a thorough
                                                   7


determination of a defendant’s allegations of ineffective assistance of counsel. The rule creates a

separate forum where persons with allegedly deficient appellate counsel can vindicate their

rights.” Davis at ¶ 26. It seems to be an odd result that this Court can allow the defendant to

vindicate his right to the effective assistance of counsel only to then bar him from raising a

meritorious claim because this Court has limited the issues that can be raised in the reopened

appeal.

          {¶15} I agree with the majority that, on the surface, it appears that this case is controlled

by State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669. Mr. Tomlinson has raised issues that

did not arise at his resentencing hearing. Under the circumstances of this case, however, justice

requires us to limit the application of res judicata, see Murnahan, and address Mr. Tomlinson’s

assignments of error. I would sustain Mr. Tomlinson’s first assignment of error1 which would

render the remaining assignments of error moot.


APPEARANCES:

JEREMY A. VEILLETTE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.




          1
          I would sustain this assignment of error for the reasons I articulated in my dissenting
opinion in his original appeal. State v. Tomlinson, 9th Dist. Summit No. 25924, 2012-Ohio-1441.
Pursuant to App.R. 26(B)(9), however, this Court was required to vacate that decision when it
found he received ineffective assistance of appellate counsel in that appeal. State v. Tomlinson,
9th Dist. No. 25924, 2013-Ohio-3520, ¶ 5. For the sake of brevity, I will not repeat my entire
dissent here. In short, “a party is estopped from seeking redaction of its own evidence that has
been previously admitted in its complete form upon stipulation of the opposing party. Applying
this standard to similar pertinent facts in the present case, I would say that the trial court erred in
redacting the subject line from the forensic report.” Tomlinson, 2012-Ohio-1441, at ¶ 55,
vacated, Tomlinson, 2013-Ohio-3520, at ¶ 5.
