[Cite as State v. Griffis, 2011-Ohio-2955.]


                                         COURT OF APPEALS
                                     MUSKINGUM COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. John W. Wise, J.
                          Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                                :
-vs-                                            :
                                                :       Case No. CT2010-57
CHRISTOPHER G. GRIFFIS                          :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Muskingum
                                                    County Court of Common Pleas, Case No.
                                                    CR2000-0199

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             June 15, 2011



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

D. MICHAEL HADDOX                                   PETER GALYARDT
Muskingum County Prosecutor                         Assistant Public Defender
27 North Fifth St., Ste. 201                        250 East Broad St., Ste. 1400
Zanesville, OH 43702                                Columbus, OH 43215
[Cite as State v. Griffis, 2011-Ohio-2955.]


Gwin, P.J.

        {¶1}     This matter is on appeal from defendant-appellant, Christopher Griffis’ re-

 sentencing to impose a term of post-release control.

                                  STATEMENT OF THE FACTS AND CASE

        {¶2}     The record indicates that appellant was charged with committing an

 assault robbery at knife point in broad daylight in a drug store parking lot. He was

 positively identified by the victim, both at the scene shortly after the offense was

 committed and at trial, and the identification was corroborated by additional testimony

 from eyewitnesses and the officers who apprehended appellant in the area shortly after

 the robbery occurred. Appellant did not testify, but his wife did, saying that her husband

 had left home on foot that morning intending to submit applications for employment at

 businesses located in the same area. After the jury returned a guilty verdict, one of the

 jurors told defense counsel that on the night of the first day of the trial, he had driven to

 appellant's house and from there to the scene in order to determine the distance from

 the petitioner's residence to the location where appellant was arrested. The other jurors

 present indicated that based upon that information, they determined that the defendant

 had not spent the night before the robbery at his home and then gone looking for a job

 the next morning.

        {¶3}     When defense counsel moved for a new trial on the basis of juror

misconduct, the trial court denied the motion, finding that under Ohio's “aliunde rule” a

juror is not permitted to impeach his own verdict without outside evidence from a

separate source. On direct appeal, we affirmed this ruling and the Ohio Supreme Court
Muskingum County, Case No. CT2010-57                                              3

denied review. Griffis v. Hurley (6th Cir. August 9, 2005), 151 Fed.Appx. 355,

unpublished, 2005 WL 2175939.

      {¶4}   On October 6, 2010, appellant filed a Motion to Vacate and/or Set Aside

Sentence on the basis that the trial court failed to inform appellant that he was

subject to post-release control for a mandatory period of five (5) years which the

evolving case law now required. On October 25, 2010, the trial court resentenced

appellant to the same term of imprisonment that was imposed in the original

sentence and it informed him of the mandatory five (5) year term of post-release

control both during the hearing and on the sentencing entry.

      {¶5}   It is from the trial court’s October 25, 2010 re-sentencing entry

appellant has timely appealed raising the following assignments of error:

      {¶6}   “I. THE TRIAL COURT COMMITTED PLAIN ERROR AND VIOLATED

CHRISTOPHER GRIFFIS'S RIGHT TO DUE PROCESS WHEN IT FAILED TO

PROVIDE MR. GRIFFIS WITH A DE NOVO SENTENCING HEARING AS

REQUIRED BY SUPREME COURT OF OHIO CASE LAW. FOURTEENTH

AMENDMENT, UNITED STATES CONSTITUTION; SECTION 16, ARTICLE I, OHIO

CONSTITUTION; CRIM.R. 52(B); STATE V. BEZAK, 114 OHIO ST.3D 94, 2007-

OHIO-3250, 868 N.E.2D 961; STATE V. SINGLETON, 124 OHIO ST.3D 173, 2009-

OHIO-6434, 920 N.E.2D 958. (OCTOBER 25, 2010 RESENTENCING HEARING

TRANSCRIPT, AT 3-9).

      {¶7}   “II. THE TRIAL COURT COMMITTED PLAIN ERROR AND VIOLATED

MR. GRIFFIS'S RIGHT TO DUE PROCESS WHEN IT FAILED TO PROVIDE HIM

WITH COUNSEL AT THE RESENTENCING HEARING. SIXTH AND FOURTEENTH
Muskingum County, Case No. CT2010-57                                                   4


AMENDMENTS, UNITED STATES CONSTITUTION; SECTION 10, ARTICLE I,

OHIO CONSTITUTION; CRIM.R. 52(B). (OCTOBER 25, 2010 RESENTENCING

HEARING TRANSCRIPT, AT 3-9).

      {¶8}   “III. THE TRIAL COURT COMMITTED PLAIN ERROR AND VIOLATED

MR. GRIFFIS'S RIGHT TO DUE PROCESS WHEN IT FAILED TO DETERMINE

WHETHER HIS CONVICTIONS WERE ALLIED OFFENSES UNDER R.C. 2941.25

AT THE RESENTENCING HEARING. FOURTEENTH AMENDMENT, UNITED

STATES CONSTITUTION; SECTION 16, ARTICLE I, OHIO CONSTITUTION;

CRIM.R. 52(B); STATE V. UNDERWOOD, 124 OHIO ST.3D 365, 2010-OHIO-1,

922 N.E.2D 923; STATE V. JOHNSON, SLIP OPINION NO. 2010-OHIO-6314.

(OCTOBER 25, 2010 RESENTENCING HEARING TRANSCRIPT, AT 5).”

                                              I.

      {¶9}   In his First Assignment of Error, appellant maintains that the trial court

committed plain error by not conducting a de novo sentencing hearing.

      {¶10} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d

958, paragraph one of the syllabus, the Ohio Supreme Court recently held that “[f]or

criminal sentences imposed prior to July 11, 2006, in which a trial court failed to

properly impose post release control, trial courts shall conduct a de novo sentencing

hearing in accordance with decisions of the Supreme Court of Ohio.”

      {¶11} In the instant case, a review of the record reveals that appellant was not

properly advised of post-release control at his original sentencing in 2001. Accordingly,

appellant is entitled to a de novo sentencing hearing. However, this does not end our

analysis.
Muskingum County, Case No. CT2010-57                                                     5

      {¶12} As the United States Supreme Court recently observed in Puckett v.

United States (2009), 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266, “If an error is not

properly preserved, appellate-court authority to remedy the error (by reversing the

judgment, for example, or ordering a new trial) is strictly circumscribed. There is good

reason for this; ‘anyone familiar with the work of courts understands that errors are a

constant in the trial process, that most do not much matter, and that a reflexive

inclination by appellate courts to reverse because of unpreserved error would be fatal.’”

(Citation omitted).

      {¶13} “[A]n appellate court may, in its discretion, correct an error not raised at

trial only where the appellant demonstrates that (1) there is an error; (2) the error is

clear or obvious, rather than subject to reasonable dispute; (3) the error affected the

appellant’s substantial rights, which in the ordinary case means it affected the outcome

of the district court proceedings; and (4) the error seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” United States v. Marcus (May 24,

2010), 560 U.S. __, 130 S.Ct. 2159, 2010 WL 2025203 at 4. (Internal quotation marks

and citations omitted).

      {¶14} “We have previously held that if the defendant had counsel and was tried

by an impartial adjudicator, there is a strong presumption that any other constitutional[l]

errors that may have occurred are subject to harmless-error analysis. State v. Hill

(2001), 92 Ohio St.3d 191, 197, 749 N.E.2d 274, quoting Rose v. Clark (1986), 478

U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460. Moreover, as we stated in State v.

Perry, 101 Ohio St.3d 118, 2004- Ohio-297, 802 N.E.2d 643, [c]onsistent with the

presumption that errors are not structural, the United States Supreme Court ha[s]
Muskingum County, Case No. CT2010-57                                                   6


found an error to be structural, and thus subject to automatic reversal, only in a very

limited class of cases. Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544,

137 L.Ed.2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9

L.Ed.2d 799 (1963) (complete denial of counsel)); Tumey v. Ohio, 273 U.S. 510, 47

S.Ct. 437, 71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254,

106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury);

McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of

self representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d

31(1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078,

124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction). Wamsley, supra 117

Ohio St.3d at 391-392, 884 N.E.2d at 48-49, 2008-Ohio-1195 at ¶ 16. [Citations and

internal quotation marks omitted].

      {¶15} Recently, the Ohio Supreme Court in State v. Fischer, Slip Opinion No.

2010-Ohio-6238, limited its holding in Bezak and concluded that the defendant is only

entitled to a hearing for the proper imposition of post release control.

      {¶16} In Fischer, the Court stated:

      {¶17} “We similarly hold that when a judge fails to impose statutorily mandated

post release control as part of a defendant's sentence, that part of the sentence is void

and must be set aside. (Footnote omitted.) Neither the Constitution nor common sense

commands anything more.

      {¶18} “This principle is an important part of the analysis of void sentences that

we have not focused upon in prior cases involving post release control, including

Bezak,114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. Thus, we reaffirm the
Muskingum County, Case No. CT2010-57                                                        7

portion of the syllabus in Bezak that states ‘[w]hen a defendant is convicted of or

pleads guilty to one or more offenses and post-release control is not properly included

in a sentence for a particular offense, the sentence for that offense is void,’ but with the

added proviso that only the offending portion of the sentence is subject to review and

correction.

      {¶19} “However, we now modify the second sentence in the Bezak syllabus as

ill-considered. That sentence states that the offender is entitled to a new sentencing

hearing for the offense for which post release control was not imposed properly. 114

Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. It does not recognize a principle that

we overlooked in Bezak: when an appellate court concludes that a sentence imposed

by a trial court is in part void, only the portion that is void may be vacated or otherwise

amended.

      {¶20} “Therefore, we hold that the new sentencing hearing to which an offender

is entitled under Bezak is limited to proper imposition of post-release control. In so

holding, we come more into line with legislative provisions concerning appellate review

of criminal sentences.”

      {¶21} Accordingly, appellant may not raise new issues, or issues he had

previously raised on his direct appeal. See also, State v. Ketterer, 126 Ohio St.3d 448,

935 N.E.2d 9, 2010-Ohio-3831.

      {¶22} To be reversible as plain error, the failure to conduct a de novo sentencing

hearing must meet the criterion that “the error seriously affect[t] the fairness, integrity or

public reputation of judicial proceedings.” Puckett, supra, at ----, 129 S.Ct. 1423

(internal quotation marks omitted). Appellant cannot point with any specificity to any
Muskingum County, Case No. CT2010-57                                                   8


prejudice he suffered as a result of the conduct of his re-sentencing hearing in the case

at bar.

      {¶23} Accordingly, appellant’s first assignment of error is overruled.

                                               II.

      {¶24} In his Second Assignment of Error, appellant argues that he was

entitled to counsel to represent him during a de novo re-sentencing hearing. In

other words, appellant contends that the effect of vacating a void sentence is to

place the parties in the same position as if there had been no sentence. The

Supreme Court had applied this principle in State v. Bezak, 114 Ohio St. 3d 94,

2007-Ohio-3250, 868 N.E. 2d 961 to hold, in its syllabus, that when a sentence is

void due to inadequate post release-control notification, the defendant is entitled to

a new sentencing hearing. Because he is entitled to a new sentencing hearing

appellant believes that he was entitled to have counsel appointed to represent him

at the sentencing hearing. We disagree.

      {¶25} In the case at bar, the error made by the trial court was that the court

failed to inform appellant in person during his original sentencing hearing that he

was subject to a mandatory five year period of post-release control and to misstate

in the original sentencing entry that appellant would be on mandatory post release

control for a period "up to" five years.

      {¶26} As a result, because the trial court's sentencing did not conform to

statutory mandates it is void. See State v. Bloomer, 122 Ohio St. 3d 200, 909 N.E.

2d 1254, 2009-Ohio-2462, ¶ 68; see, also, State v. Jordan, 104 Ohio St.3d 21, 817

N.E.2d 864, 2004-Ohio-6085; State v. Bezak, 114 Ohio St.3d 94, 868 N.E.2d 961,
Muskingum County, Case No. CT2010-57                                                  9

2007-Ohio-3250; State v. Simpkins, 117 Ohio St.3d 420, 884 N.E.2d 568, 2008-

Ohio-1197; State v. Boswell, 121 Ohio St.3d 575, 906 N.E.2d 422, 2009-Ohio-1577.

      {¶27} However, as noted in our disposition of appellant’s First Assignment of

Error, supra, the Ohio Supreme Court in State v. Fischer, Slip Opinion No. 2010-

Ohio-6238, limited its holding in Bezak and concluded that the defendant is only

entitled to a hearing for the proper imposition of post release control.

      {¶28} A “critical stage” only exists in situations where there is a potential risk

of substantial prejudice to a defendant's rights and counsel is required to avoid that

result; in other words, counsel must be present “where counsel's absence might

derogate from the accused's right to a fair trial.” United States v. Wade (1967), 388

U.S. 218, 226, 87 S.Ct. 1926.

      {¶29} In the case at bar, appellant was convicted after a jury trial. Appellant

was represented by counsel at his original sentencing hearing in 2001. Appellant

was subject to a mandatory period of post release control. Both the mandatory

nature and the length of appellant’s post release control are governed by statute.

See, R.C. 2967.28.     Accordingly, no discretion was involved in the trial court’s

October 25, 2010 re-sentencing hearing concerning appellant’s post release control

obligation.

      {¶30} The court in Fisher, supra, further held that “[a]lthough 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. Accordingly, appellant could not raise

new issues, or issues he had previously raised on his direct appeal. State v.
Muskingum County, Case No. CT2010-57                                                  10

Fischer, supra; See also, State v. Ketterer, 126 Ohio St.3d 448, 935 N.E.2d 9,

2010-Ohio-3831.

      {¶31} “Consequently, the sentencing hearing was…not a de novo hearing but

a ministerial act to create a new journal entry with the addition of the corrected

language noting that post-release control was mandatory.“ State v. Davis,

Washington App. No. 10CA9, 2010-Ohio-5294 at ¶32.

      {¶32} In the case at bar appellant did not face a substantial risk of prejudice

because the court was limited to informing him in person concerning the imposition

of five years mandatory post-release control and adding the words “mandatory” to

the imposition of post release control as set forth in its Judgment Entry, which it was

required to do in the first place, i.e., the court did not have the authority to make any

other substantive changes to the already-imposed sentence.

      {¶33} Traditional notions of fair play and substantial justice were not offended.

Appellant cannot point with any specificity to any prejudice he suffered as a result of

not having counsel to represent him during the October 25, 2010 re-sentencing

hearing.

      {¶34} Appellant’s Second Assignment of Error is overruled.

                                              III.

      {¶35} In his Third Assignment of Error appellant argues that the trial court

committed plain error by not considering whether the offenses for which he was

convicted are allied offenses of similar import. We disagree.

      {¶36} As noted in our disposition of appellant’s First Assignment of Error,

supra, the Ohio Supreme Court in State v. Fischer, Slip Opinion No. 2010-Ohio-
Muskingum County, Case No. CT2010-57                                                11

6238, limited its holding in Bezak and concluded that the defendant is only entitled

to a hearing for the proper imposition of post release control.

      {¶37} The court in Fisher, supra further held that “[a]lthough 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. Accordingly, appellant could not raise

new issues, or issues he had previously raised on his direct appeal. State v.

Fischer, supra; See also, State v. Ketterer, 126 Ohio St.3d 448, 935 N.E.2d 9,

2010-Ohio-3831.

      {¶38} Under these circumstances, we find that an appellant may not raise

additional arguments relating to his conviction following his resentencing. See, State

v. Nichols, Richland App. No. 2006CA0077, 2007-Ohio-3257 at ¶ 19. Res judicata is

a valid basis for rejecting these claims.

      {¶39} Appellant’s Third Assignment of Error is overruled.
Muskingum County, Case No. CT2010-57                                   12


     {¶40} For the foregoing reasons, the judgment of the Muskingum County

Court of Common Pleas, Muskingum County, Ohio is affirmed.



By Gwin, P.J.,

Wise, J., and

Delaney, J., concur




                                       _________________________________
                                       HON. W. SCOTT GWIN

                                       _________________________________
                                       HON. JOHN W. WISE

                                       _________________________________
                                       HON. PATRICIA A. DELANEY




WSG:clw 0524
[Cite as State v. Griffis, 2011-Ohio-2955.]


             IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                      :
                                                   :
                              Plaintiff-Appellee   :
                                                   :
                                                   :
-vs-                                               :       JUDGMENT ENTRY
                                                   :
CHRISTOPHER G. GRIFFIS                             :
                                                   :
                                                   :
                         Defendant-Appellant       :       CASE NO. CT2010-57




             For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Muskingum County Court of Common Pleas, Muskingum County,

Ohio is affirmed. Costs to appellant.




                                                       _________________________________
                                                       HON. W. SCOTT GWIN

                                                       _________________________________
                                                       HON. JOHN W. WISE

                                                       _________________________________
                                                       HON. PATRICIA A. DELANEY
