[Cite as State v. Montgomery, 2013-Ohio-5287.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                       JUDGES:
                                                    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                          Hon. Sheila G. Farmer, J.
                                                    Hon. Patricia A. Delaney, J.
-vs-
                                                    Case No. 13-CA-39
ROMAR M. MONTGOMERY

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Licking County Court of
                                                 Common Pleas, Case No. 06 CR 512


JUDGMENT:                                        Affirmed


DATE OF JUDGMENT ENTRY:                          November 27, 2013


APPEARANCES:


For Plaintiff-Appellee                           For Defendant-Appellant


KENNETH W. OSWALT                                ROMAR MONTGOMERY, PRO SE
Licking County Prosecutor                        R.C.I. - Inmate No. 556-398
                                                 P.O. Box 7010
By: CHRISTOPHER A. REAMER                        Chillicothe, Ohio 45601
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 13-CA-39                                                          2

Hoffman, P.J.


         {¶1}   Defendant-appellant Romar Montgomery appeals the April 17, 2013

Judgment Entry entered by the Licking County Court of Common Pleas denying his

motion for resentencing. Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF PROCEDURAL HISTORY1

         {¶2}   On July 11, 2007, Appellant was sentenced to an aggregate prison term of

twenty-five years for multiple drug related felonies. Appellant timely appealed. This

Court affirmed Appellant's convictions and sentence via Opinion and Judgment Entry in

State v. Montgomery, Ohio App. Fifth Dist. No. 2007CA95, 2008-Ohio-6077.

         {¶3}   In March of 2009, Appellant filed various pro se motions in an attempt to

reopen his appeal. On May 26, 2009, this Court denied the motion to reopen the direct

appeal as untimely and for failure to state a colorable claim of ineffective assistance of

appellate counsel.

         {¶4}   Appellant then filed a complaint for mandamus in the Ohio Supreme Court

requesting the Licking County Appeals Clerk be ordered to serve Appellant with our

May 26, 2009 Judgment Entry denying his application to reopen. On September 30,

2009, the Ohio Supreme Court granted dismissal of Appellant's mandamus complaint.

State of Ohio, el rel., Romar Montgomery v. Licking County Court House c/o Clerk of

Courts, 5th District Appellate Division, 2009-1336.

         {¶5}   In 2013, Appellant filed a pro se motion for resentencing and a

supplemental pleading for resentencing alleging his sentence was void due to the trial

court’s imposition of an additional one year sentence enhancement to his conviction as

1
    A rendition of the underlying facts is unnecessary for our resolution of the appeal.
Licking County, Case No. 13-CA-39                                                     3


a major drug offender in Count Three. On April 17, 2013, the trial court denied the

motion.

      {¶6}   Appellant now challenges the denial of his motion for resentencing,

assigning as error:

      {¶7}   “I. DEFENDANT/APPELLANT SHOULD BE VACATED BECAUSE THE

FIFTH DISTRICT COURT OF APPEALS REFUSE TO SERVE NOTICE AND A COPY

OF THE DECISION THAT DENIED HIS PRO SE APP. R. 26 (B) APPLICATION

THEREBY DENYING HIM THE RIGHT TO APPEAL.

      {¶8}   “II. DEFENDANT/APPELLANT SENTENCE SHOULD BE VACATED

BECAUSE THE TRIAL COURT SENTENCED HIM OVER THE STATUTORY

MAXIMUM. THEREBY RENDERING A VOID SENTENCE.

      {¶9}   “III. DEFENDANT/APPELLANT SENTENCE SHOULD BE VACATED

BECAUSE IT IS CONTRARY TO THE JURY’S VERDICT IN VIOLATION OF BLAKELY

V. WASHINGTON AND APPEND i v. [sic] NEW JERSEY.”

                                              I.

      {¶10} In the first assignment of error, Appellant argues this Court’s May 26, 2009

Judgment Entry denying his application to reopen should be vacated as the Court of

Appeals has refused to serve notice and copy of the decision denying his application;

thereby, denying his right to an appeal.

      {¶11} As set forth in the Statement of Procedural History, supra, this Court

denied the motion to reopen the appeal as untimely and for failure to state a colorable

claim of ineffective assistance of appellate counsel on May 26, 2009. Appellant filed a

complaint for mandamus in the Ohio Supreme Court requesting the Licking County
Licking County, Case No. 13-CA-39                                                         4


Appeals Clerk be ordered to serve Appellant with the May 26, 2009 denial of his

application to reopen.    On September 30, 2009, the Ohio Supreme Court granted

dismissal of Appellant's mandamus complaint.             State of Ohio, el rel., Romar

Montgomery v. Licking County Court House c/o Clerk of Courts, 5th District Appellate

Division, 2009-1336.

       {¶12} Appellant sought remedy with a filing of a mandamus complaint in the

Ohio Supreme Court, which was denied. Appellant subsequently acknowledged receipt

of our decision denying his application for reopening on August 2, 2011. Appellant's

first assignment of error is barred by the doctrine of res judicata and untimely; therefore,

overruled.

                                              II, III.

       {¶13} Appellant's second and third assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.

       {¶14} Appellant asserts his sentence should be vacated as the trial court

sentenced him over the statutory maximum and contrary to the jury verdict; rendering

the sentence void.

       {¶15} The doctrine of res judicata bars any claim capable of being raised at the

time of direct appeal. State v. Perry, 10 Ohio St.2d 175.

       {¶16} In State v. Reed No. 11AP-792, 2012-Ohio-1612, the Tenth District Court

of Appeals addressed the argument raised herein holding,

       {¶17} "In this case, appellant's motion failed to demonstrate any error, much less

'void' sentencing error. This court has already rejected the argument that Foster

severed former R.C. 2929.14(D)(3)(b) in its entirety. In State v. Pena, 10th Dist. No.
Licking County, Case No. 13-CA-39                                                          5


06AP–688, 2007–Ohio–4516, ¶ 20, we explained that 'the Supreme Court severed only

the portion of [R.C. 2929.14(D)(2)(b) and (D)(3)(b) ] requiring judicial fact-finding with an

explanation that trial courts could continue to impose the add-on sentence where the

jury had found the defendant to be a major drug offender as defined by statute.' Other

appellate districts have similarly concluded that 'R.C. 2929.14(D)(3)(b) is not entirely a

nullity after Foster ' and that 'a trial court may use R.C. 2929.14(D)(3)(b) to impose an

additional prison term on a major drug offender.' State v. Black, 1st Dist. No. C–100357,

2011–Ohio–1330, ¶ 29; see also State v. Newton, 2d Dist. No. 24154, 2011–Ohio–

2188, ¶ 21; State v. Sims, 8th Dist. No. 95979, 2011–Ohio–4819, ¶ 38 (because Foster

severed only the language requiring judicial fact-finding, the defendant 'was subject to

an additional sentence as a major drug offender at the trial court's discretion').

       {¶18} "Subsequent decisions from the Supreme Court of Ohio reemphasize that

Foster did not eliminate the additional prison terms authorized for major drug offenders

and repeat violent offenders. In State v. Chandler, 109 Ohio St.3d 223, 846 N.E.2d

1234, 2006–Ohio–2285, ¶ 17, the court explained, 'As [R.C. 2929.14(D)(3)(b) ] now

stands, a major drug offender still faces the mandatory maximum ten-year sentence that

the judge must impose and may not reduce. Only the add-on that had required judicial

fact-finding has been severed.' In State v. Hunter, 123 Ohio St.3d 164, 915 N.E.2d 292,

2009–Ohio–4147, ¶ 27, the court stated the following with regard to the effect of Foster

on repeat-violent-offender specifications:

       {¶19} "'Our opinions in Foster and [State v. Mathis, 109 Ohio St.3d 54, 2006–

Ohio–855] patently demonstrate our intent to excise only the portions of former R.C.

2929.14(D)(2)(b) that required judicial fact-finding in violation of the Sixth Amendment
Licking County, Case No. 13-CA-39                                                        6

and the United States Supreme Court's decisions in [Apprendi v. N.J., 530 U.S. 466,

120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ] and [ Blakely v. Washington, 542 U.S. 296,

124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ]. We never specifically precluded a trial court

from imposing enhanced penalties for a repeat violent offender specification, nor did we

excise the definition of a repeat violent offender as set forth in former R.C. 2929.01(DD).

Furthermore, none of our decisions after Foster indicate that this specification no longer

exists. Thus, Foster excised judicial fact-finding from former R.C. 2929.14(D)(2) but did

not eliminate the repeat violent offender specification, as defined in former R.C.

2929.01(DD).

       {¶20} "Although the decision in Hunter focused on the additional penalty for

repeat violent offenders, its reasoning applies equally to the additional penalty for major

drug offenders. See Newton at ¶ 20

       {¶21} "Appellant relies on the Second District's holdings in State v. Sanchez, 2d

Dist. No.2006–CA–154, 2009–Ohio–813, and State v. Dillard, 173 Ohio App.3d 373,

878 N.E.2d 694, 2007–Ohio–5651 (2d Dist.), for the proposition that Foster severed

former R.C. 2929 .14(D)(3)(b) in its entirety. In Sanchez, however, the court did not

reach this at ¶ 5. Although the Dillard court did find former R.C. 2929.14(D)(3)(b) to be

severed by Foster, the Second District later reconsidered this holding based on the

Supreme Court of Ohio's subsequent decision in Hunter. Newton. As the court stated in

Newton at ¶ 21, '[t]he Supreme Court's ruling in Hunter * * * rejected the view we

expressed in Dillard that the specification imposing an enhanced sentence for a major

drug offender could never survive Foster; Hunter made clear that the major drug

offender specification contained in R.C. 2929.14(D)(3)(b) was not totally eliminated or
Licking County, Case No. 13-CA-39                                                        7

rendered unconstitutional by Foster.' Accordingly, appellant's reliance on Sanchez and

Dillard is misplaced."

       {¶22} Appellant has failed to prove his sentence was void; therefore, the

doctrine of res judicata prohibits review of his sentence as his claim was or could have

been raised at sentencing or in a direct appeal. Therefore, the trial court properly denied

Appellant's motion for resentencing.

       {¶23} The second and third assignments of error are overruled.

       {¶24} The April 17, 2013 Judgment Entry of the Licking County Court of

Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

                                             ___________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             ___________________________________
                                             HON. SHEILA G. FARMER


                                             ___________________________________
                                             HON. PATRICIA A. DELANEY
Licking County, Case No. 13-CA-39                                                  8


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
ROMAR M. MONTGOMERY                        :
                                           :
       Defendant-Appellant                 :         Case No. 13-CA-39




       For the reasons stated in our accompanying Opinion, the April 17, 2013

Judgment Entry of the Licking County Court of Common Pleas is affirmed. Costs to

Appellant.




                                           ___________________________________
                                           HON. WILLIAM B. HOFFMAN


                                           ___________________________________
                                           HON. SHEILA G. FARMER


                                           ___________________________________
                                           HON. PATRICIA A. DELANEY
