[Cite as State v. McKnight, 2011-Ohio-4822.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 96074




                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.


                                   DARRYL MCKNIGHT

                                                     DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-495162

        BEFORE: Jones, J., Kilbane, A.J., and Keough, J.

        RELEASED AND JOURNALIZED:                      September 22, 2011
ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building
526 Superior Avenue
Suite 940
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
                     ht




1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, J.:

       {¶ 1} Defendant-appellant, Darryl McKnight, appeals from the trial court’s November

1, 2010 sentencing judgment entry.    We affirm.

                                                     I

       {¶ 2} In 2007, McKnight was charged with two counts each of aggravated robbery

and felonious assault with one- and three-year firearm specifications.   The charges arose from

the singular robbery of and assault on one victim.

       {¶ 3} In 2009, after McKnight executed a waiver of jury trial, the case proceeded to a
bench trial.      The court found McKnight guilty of Count 1, aggravated robbery with the

firearm specifications, and guilty of Counts 3 and 4, felonious assault with the firearm

specifications.     Count 2, aggravated robbery, was dismissed.    The court sentenced McKnight

to a six-year prison term and imposed three years of postrelease control.

       {¶ 4} On appeal, this court held that conviction and sentence on two counts of

felonious assault was in error because there was only one victim and one single occurrence.

State v. McKnight, Cuyahoga App. No. 93134, 2010-Ohio-3865, ¶22.                  The case was

therefore remanded in August 2010 for the state to elect the felonious assault charge on which

McKnight should be convicted and sentenced.       Id.

       {¶ 5} In November 2010, the trial court held a resentencing hearing.            The state

elected to proceed on the felonious assault charge set forth in Count 4.    The court resentenced

McKnight to a six-year prison term, which did not include a sentence on the felonious assault

charge under Count 3.      The court imposed five years of postrelease control.

       {¶ 6} McKnight now appeals from the judgment entry resentencing him, raising the

following assignment of error by and through counsel: “The trial court violated Crim.R. 32

when there was an unnecessary delay in sentencing.”               Pro   se, McKnight raises the

following assignments of error:

       “[I.] The trial court[ ] erred by allowing a conviction when the speedy trial rights
       were already violated due to false request for continuances the court’s claimed
       appellant made so the defendant is requesting to be relieved [and] released of all
       conviction [and] charges as required in cases provided in memorandum 1;
       “[II.] The courts are to reverse the convictions and indictment due to improper court
       instructions and void indictments [and] testimonies. So the appellant is required to be
       released and compensated;

       [III.] The judgment [and] indictments are to be voided because appellant was convicted
       on charges which failed to explain the allege[d] elements and offense given as
       instruction in court. So the defendant/appellant is required to be compensated and
       released.”

                                                  II

       {¶ 7} In the assignment of error presented by counsel, McKnight contends that the

trial court improperly imposed postrelease control after an 18-month delay between the time of

conviction and resentencing.     We disagree.

       {¶ 8} When the trial court first sentenced McKnight in 2009, it wrongly imposed

three years of postrelease control.       Under R.C. 2967.28(B)(1), the proper period of

postrelease control for aggravated robbery, a felony of the first degree, is five years.   Upon

resentencing McKnight in 2010, the court corrected its mistake and imposed five years of

postrelease control.

       {¶ 9} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, the

Ohio Supreme Court ruled that “[a] sentence that does not include the statutorily mandated

term of postrelease control is void, is not precluded from appellate review by principles of res

judicata, and may be reviewed at any time, on direct appeal or by collateral attack.”      Id. at

paragraph one of the syllabus.

       {¶ 10} Thus, under Fischer, the trial court properly corrected the imposition of
postrelease control.   Moreover, there was not an unnecessary delay in the time between

conviction and resentencing.    McKnight contends that the 18 months between his conviction

and resentencing constituted an unnecessary delay.          He cites Crim.R. 32(A), which

provides that “[s]entence shall be imposed without unnecessary delay.”

       {¶ 11} This court has held that Crim.R. 32(A) does not apply to resentencing.       State

v. Harris, Cuyahoga App. No. 95010, 2011-Ohio-482, ¶7; State v. Huber, Cuyahoga App. No.

85082, 2005-Ohio-2625, ¶ 8.        Rather, in cases involving resentencing, this court has

considered the issue of delay under the Sixth Amendment to the United States Constitution.

Huber at id.    Specifically, we look to the following criteria set forth in Barker v. Wingo

(1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101, to determine whether a delay was

presumptively prejudicial, requiring a dismissal of the case:   the length of delay, the reason

for the delay, the defendant’s assertion of his right, and prejudice to the defendant. State v.

Corrigan, Cuyahoga App. No. 83088, 2004-Ohio-4346, ¶18.

       {¶ 12} After being convicted in March 2009, McKnight was originally sentenced in

April 2009.    He appealed, but this court dismissed the appeal in August 2009 because he

failed to file a brief.   In September 2009, McKnight requested, and this court granted,

reopening of his appeal.       In August 2010, this court remanded for resentencing, and

resentencing was had in November 2010.          On this record, there was no presumptively

prejudicial delay.

       {¶ 13} In light of the above, the assignment of error presented by counsel is overruled.
       {¶ 14} In regard to the remaining assignments of error presented by McKnight pro se,

they are all barred under the doctrine of res judicata.    Under the doctrine, “[a] valid, final

judgment rendered upon the merits bars all subsequent actions based upon any claim arising

out of the transaction or occurrence that was the subject matter of the previous action.”

Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, 653 N.E.2d 226, syllabus.            All

of the contentions in these assignments were issues that were, or could have been, raised in

McKnight’s first appeal.

       {¶ 15} McKnight’s convictions were affirmed in his first appeal; the matter was

remanded for resentencing only. McKnight at ¶22-23.         In Fischer, the Ohio Supreme Court

held that “[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.

       {¶ 16} In light of the above, the remaining assignments of error are overruled.

       Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       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.




LARRY A. JONES, JUDGE

MARY EILEEN KILBANE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
