[Cite as State v. Ballou, 2011-Ohio-2925.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 95733



                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                TERRANCE BALLOU
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-432442

        BEFORE:             Boyle, P.J., Jones, J., and Keough, J.
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       RELEASED AND JOURNALIZED:                        June 16, 2011

ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
By: Nathaniel McDonald
Assistant Public Defender
310 Lakeside Avenue, Suite 400
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
By: Mary McGrath
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, P.J.:

       {¶ 1} Defendant-appellant, Terrance Ballou, appeals his sentence, following the trial

court’s resentencing of him on his pro se motion to correct a void sentence.   Finding no merit

to the appeal, we affirm.

                                    Procedural History and Facts

       {¶ 2} In June 2003, Ballou was convicted of possession of crack cocaine in an amount

equal to or exceeding 100 grams, in violation of R.C. 2925.11; drug trafficking at least 100
                                               3

grams of crack cocaine, in violation of R.C. 2925.03(A)(2); and possession of criminal tools,

in violation of R.C. 2923.24.    The first two counts carried major drug offender specifications,

which Ballou was also found guilty of.      The trial court imposed the mandatory ten years on

the first two counts of the indictment, to run concurrently with each other.      The trial court

further imposed one year on the possession of criminal tools count, also to run concurrent with

the other counts, for a total prison term of ten years.    The court, however, failed to inform

Ballou of postrelease control.

       {¶ 3} Ballou subsequently filed a direct appeal, challenging his conviction as being

against the manifest weight of the evidence.         On May 21, 2004, this court affirmed his

conviction and overruled his sole assignment of error.       See State v. Ballou, 8th Dist. No.

83160, 2004-Ohio-2339.      On December 10, 2004, this court further denied Ballou leave to

reopen his appeal after the Ohio Supreme Court denied him leave to appeal.           See State v.

Ballou, 8th Dist. No. 83160, 2004-Ohio-6850.

       {¶ 4} On April 16, 2010, Ballou filed a pro se motion to correct his sentence on the

grounds that the trial court failed to notify him of postrelease control at the 2003 sentencing

hearing.   On August 20, 2010, the trial court held a de novo sentencing hearing and imposed

the same sentence given in 2003, i.e., concurrent ten-year prison terms on Counts 1 and 2 and

a concurrent prison term of one year on Count 3.      The trial court also informed Ballou that he

would be subject to a mandatory five-year term of postrelease control on the first two counts
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and could be subject to a discretionary period up to three years of postrelease control on the

third count.

       {¶ 5} Ballou appeals, raising the following two assignments of error:

       {¶ 6} “I.      The trial court erred when it failed to merge counts 1 and 2 at the de novo

sentencing hearing.

       {¶ 7} “II.     The trial court did not have jurisdiction to sentence Mr. Ballou with

respect to count 3 at the de novo sentencing hearing.”

                                              Allied Offenses

       {¶ 8} In his first assignment of error, Ballou contends that the trial court erred by

failing to merge the first two counts of his indictment, i.e., drug possession and drug

trafficking, as allied offenses.   He argues that, despite not having raised the issue in his direct

appeal, the trial court was required to merge the two counts because his resentencing hearing

was a de novo hearing.     We disagree.

       {¶ 9} If a defendant is subject to postrelease control, the trial court must notify him of

postrelease control at the sentencing hearing, and must include the postrelease control terms in

the sentence, or the sentence is void. State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250,

868 N.E.2d 961, at the syllabus; State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817

N.E.2d 864.    In Bezak, the court held that when postrelease control is not properly imposed,

the defendant is entitled to a de novo sentencing hearing.
                                                 5

       {¶ 10} Subsequently,     however,    in    State   v.    Fischer,   128     Ohio   St.3d   92,

2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court limited its holding in Bezak and

concluded that when postrelease control is not properly imposed the defendant is only entitled

to a hearing for the proper imposition of postrelease control.      Id. at ¶27-29.     The defendant

is not entitled to be resentenced on the entire sentence — “only the portion that is void may

be vacated and otherwise amended.”         Id. at      ¶28.    Therefore, under Fischer, the trial

court’s authority at the resentencing hearing was limited to correcting the void aspect of

Ballou’s sentence — the postrelease control aspect.

       {¶ 11} Furthermore, in applying Fischer and the doctrine of res judicata, this court has

consistently held that “the time to challenge a conviction based on allied offenses is through a

direct appeal — not at a resentencing.”    State v. Poole, 8th Dist. No. 94759, 2011-Ohio-716,

¶13; State v. Padgett, 8th Dist. No. 95065, 2011-Ohio-1927, ¶8.              Indeed, as the court

declared in Fischer, “although the doctrine of res judicata does not preclude review of a void

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 ¶40.

       {¶ 12} Accordingly, Ballou’s first assignment of error is overruled.

                                           Expired Sentence

       {¶ 13} In his second assignment of error, Ballou argues that the trial court lacked

authority to impose postrelease control on the possession of the criminal tools count because
                                               6

the original term of sentence on that count had expired.    While we agree that a trial court has

no authority to impose postrelease control at resentencing upon an individual term that has

expired, we find the trial court’s inclusion of a three-year discretionary period on the third

count to be harmless error.

       {¶ 14} R.C. 2967.28(F)(4)(c), which addresses multiple periods of postrelease control,

provides as follows:

       {¶ 15} “If an offender is subject to more than one period of post-release control, the

period of post-release control for all of the sentences shall be the period of post-release control

that expires last, as determined by the parole board or court. Periods of post-release control

shall be served concurrently and shall not be imposed consecutively to each other.”

       {¶ 16} Relying on this provision, the Ohio Supreme Court has held that, when a trial

court imposes sentences for multiple convictions, the trial court’s imposition of one term of

postrelease control is proper. Durain v. Sheldon, 122 Ohio St.3d 582, 2009-Ohio-4082, 913

N.E.2d 442, ¶1.     Here, because the trial court properly imposed five years of postrelease

control on the first two counts, and this period of postrelease control expires last, we find

Ballou’s assignment of error to be moot.

       Judgment affirmed.

       It is ordered that appellee shall recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
                                            7

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.      The defendant’s conviction having been

affirmed, any bail pending appeal is terminated.      Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

LARRY A. JONES, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
