[Cite as State v. Pickett, 2012-Ohio-1821.]


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

STATE OF OHIO                                         C.A. No.      25931

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ANTOINE PICKETT                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 03 02 0510 (B)

                                  DECISION AND JOURNAL ENTRY

Dated: April 25, 2012



        DICKINSON, Judge.

                                              INTRODUCTION

        {¶1}     Antoine Pickett pleaded guilty to multiple charges, but the trial court failed to

properly impose post-release control. Before he completed his prison sentence, the trial court

held a resentencing hearing to correct the error. The trial court resentenced Mr. Pickett to the

mandatory five-year term of post-release control required by law. Mr. Pickett did not appeal his

resentencing. Following his release from prison, he moved the trial court to terminate post-

release control, arguing that the trial court had violated his plea agreement by adding an

additional sanction that had not been part of the negotiated agreement. This Court affirms the

trial court’s denial of the motion to terminate post-release control because Mr. Pickett’s

argument is barred by res judicata.
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                                        BACKGROUND

       {¶2}   In 2003, the State charged Mr. Pickett with possession of cocaine and marijuana

and failure to comply with an order or signal of a police officer. Mr. Pickett agreed to plead

guilty to the charges of possession of cocaine and failure to comply and to forfeit the money he

had at the time of his arrest.      In exchange, the State dropped the marijuana charge and

recommended a seven-year prison term.

       {¶3}   At his plea hearing, the trial court warned him that, if he pleaded guilty to the

first-degree felony charge of possession of cocaine, he would be subject to “post-release control

for up to five years[.]” The record indicates that the trial court did not mention post-release

control during the sentencing hearing. The trial court sentenced Mr. Pickett to seven years for

the cocaine charge and a concurrent year for failure to comply. In its sentencing entry of August

25, 2003, the trial court wrote that Mr. Pickett would be “subject to post-release control to the

extent the parole board may determine as provided by law.” Mr. Pickett did not appeal.

       {¶4}   On June 10, 2010, while Mr. Pickett was still serving his prison term, the trial

court resentenced him to correct the post-release control error. By journal entry of June 18,

2010, the trial court resentenced him to the same concurrent prison terms for the first-degree

felony possession charge and the third-degree felony failure to comply. It then advised that he

would be “supervised on post-release control . . . for a mandatory period of 5 years after being

released from prison.” Mr. Pickett did not appeal his resentencing. Seven months later, after he

had been released from prison, Mr. Pickett moved the trial court to terminate his post-release

control, arguing that his plea was not knowing and voluntary because he did not understand that

he would be subject to a mandatory five years of post-release control. The trial court denied his

motion, and Mr. Pickett appealed.
                                                  3


                                         RES JUDICATA

       {¶5}    Mr. Pickett’s assignment of error is that the trial court violated his due process

rights by denying his motion to terminate post-release control. In his motion, he argued that the

State had violated the plea agreement and asked the trial court for specific performance of the

2003 agreement. He argued that the agreement did not include post-release control, so specific

performance would require immediate termination of post-release control. On appeal, he has

argued that “the trial court violated his right to the bargain to which he pled” and that “the

agreement . . . was absolutely broken by the trial court when it invoked additional sanctions upon

him outside the agreement.”

       {¶6}    Under Rule 11(C)(2)(a) of the Ohio Rules Criminal Procedure, before accepting a

guilty plea in a felony case, the trial court must address the defendant personally and

“[d]etermin[e] that the defendant is making the plea voluntarily, with understanding of the nature

of the charges and of the maximum penalty involved, and if applicable, that the defendant is not

eligible for probation or for the imposition of community control sanctions[.]” A plea agreement

between the State and the defendant does not tie the trial court’s hands at sentencing. State v.

Kelly, 7th Dist. No. 08-CO-17, 2009-Ohio-1035, at ¶ 29.              Regardless of the State’s

recommendation, the trial court has discretion to impose any sentence authorized by law for the

relevant crime. State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, at ¶ 4.

       {¶7}    Mr. Pickett has not argued that the trial court failed to properly advise him under

Criminal Rule 11(C)(2) at his plea hearing nor has he argued that the trial court broke the law or

abused its discretion in resentencing him to 5 years of post-release control. He has argued only

that the trial court broke the negotiated plea agreement by adding additional sanctions, that is,

post-release control, that was not part of his plea bargain.
                                                4


       {¶8}    At his plea hearing, the trial court warned Mr. Pickett that a plea of guilty would

subject him to a mandatory prison term of between three and ten years. It told him that

community control was not an option under the circumstances. It specifically advised him that,

although the State had agreed to recommend a seven-year prison term under the agreement, the

trial court was not bound by that recommendation. The court also advised him that a plea of

guilty would subject him to “up to five years” of post-release control and he would not be

eligible for judicial release.    After Mr. Pickett acknowledged that he understood those

consequences, as well as various others including the rights he was relinquishing through his

plea, he pleaded guilty to the two charges.

       {¶9}    Mr. Pickett’s original sentencing entry attempted to impose post-release control

“to the extent the parole board may determine as provided by law” rather than correctly imposing

the mandatory five-year term required by Section 2967.28(B)(1) of the Ohio Revised Code. Mr.

Pickett did not appeal that judgment. Years later, while he was still serving his prison term, the

trial court held a resentencing hearing and issued an entry resentencing him to the same prison

term plus a mandatory term of five years of post-release control. At that time, the trial court

explicitly told him, through its journal entry, that he was subject to five years of post-release

control after his release from prison. He could have appealed that judgment at that time, but he

did not.

       {¶10} Res judicata now bars his argument. The doctrine of res judicata “bars the

assertion of claims against a valid, final judgment of conviction that have been raised or could

have been raised on appeal.” State v. Ketterer, 126 Ohio St. 3d 448, 2010–Ohio–3831, ¶ 59

(citing State v. Perry, 10 Ohio St. 2d 175, paragraph nine of the syllabus (1967)). The fact that

Mr. Pickett failed to appeal his original or corrected sentence does not prevent the application of
                                                 5


the doctrine of res judicata to his motion to terminate post-release control. See State v. Rexroad,

9th Dist. No. 22214, 2004–Ohio–6271, at ¶ 8 (“That a defendant failed to directly appeal from

his conviction and sentence does not prevent the application of the doctrine of res judicata.”).

       {¶11} Although the part of the original sentence incorrectly imposing post-release

control was void, “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.” State v.

Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, at ¶ 40. Once the void part of the sentence was

corrected via a resentencing hearing and entry correctly imposing post-release control, Mr.

Pickett’s arguments were limited to issues arising in the resentencing process. Id. Mr. Pickett

could have appealed the resentencing entry, but he did not. Because the argument Mr. Pickett

made in his motion to terminate post-release control was barred by res judicata, the trial court did

not violate his right to due process by denying the motion. See State v. Greene, 9th Dist. No.

25773, 2012-Ohio-791, at ¶ 5-6. Mr. Pickett’s assignment of error is overruled.

                                         CONCLUSION

       {¶12} Mr. Pickett’s argument that the trial court violated his plea bargain by

resentencing him to five years of post-release control is barred by the doctrine of res judicata.

He could have raised that argument in a direct appeal from the resentencing entry, but did not.

His assignment of error is overruled. The judgment of the Summit County Common Pleas Court

is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 6


       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.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT



CARR, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

JANA DELOACH, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
