[Cite as State v. Hines, 193 Ohio App.3d 660, 2011-Ohio-3125.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




THE STATE OF OHIO,

        APPELLEE,                                                CASE NO. 1-10-92

        v.

HINES,                                                           OPINION

        APPELLANT.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR 2004 0016

                                     Judgment Affirmed

                             Date of Decision: June 27, 2011




APPEARANCES:

        Christina L. Steffan, for appellee.

        Michael J. Short, for appellant.




SHAW, Judge.
Case No. 1-10-92




       {¶1} Appellant, Dennis Hines, appeals the December 21, 2010 judgment of

the Allen County Court of Common Pleas correcting his judgment entry of

sentence and conviction to properly impose postrelease control and overruling his

motion for sentence to lesser degree of offense.

       {¶2} On April 29, 2004, a jury convicted Hines on one count of trafficking

in crack cocaine, a felony of the third degree; one count of trafficking in crack

cocaine, a felony of the second degree; one count of trafficking in powder cocaine,

a felony of the fourth degree; one count of possession of power cocaine, a felony

of the fifth degree; and one count of having weapons under disability, a felony of

the fifth degree.

       {¶3} On June 1, 2004, the trial court sentenced Hines to serve a total

sentence of 15 years and five months in prison. On June 30, 2004, Hines filed his

notice of appeal with this court. In that appeal, Hines argued that the jury never

returned a specific verdict finding of the amounts of the drugs related to his

trafficking charges because the jury verdict forms failed to specify the amounts or

the degree of felony of the offenses. As a result, Hines argued, the trial court

could, as a matter of law, convict and sentence him only for the lesser degree of

the offense pursuant to R.C. 2945.75(A)(2). Hines also assigned as error the trial

court’s imposition of consecutive maximum sentences.


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       {¶4} On December 27, 2005, this court issued its decision in Hines’s

appeal, overruling his assignments of error. Specifically, this court held that the

trial court had substantially complied with R.C. 2945.75(A)(2), and we found no

reversible error.

       {¶5} On May 24, 2006, the Supreme Court of Ohio reversed the decision of

this court regarding Hines’s sentence and ordered the trial court to resentence him

pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

       {¶6} On September 25, 2006, the trial court held a resentencing hearing and

on September 26, 2006, the trial court issued its judgment entry of resentencing in

compliance with the directives of Foster.

       {¶7} On September 29, 2006, Hines filed his notice of appeal from the

judgment entry of resentencing with this court.         Hines presented only one

assignment of error, specifically taking issue with his resentencing pursuant to

Foster.

       {¶8} On February 7, 2007, while Hines’s second appeal was still pending,

the Supreme Court issued State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256,

860 N.E.2d 735, which held that pursuant to R.C. 2945.75(A)(2) a verdict form

signed by a jury must include either the degree of the offense of which the

defendant is convicted or a statement that an aggravating element has been found

to justify convicting a defendant of a greater degree of a criminal offense. Id. at ¶

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14. Notably, Hines failed to supplement his pending appeal with this new decision

or to otherwise raise the issue regarding jury-verdict forms in his second appeal.

       {¶9} On June 25, 2007, this court issued its decision in Hines’s second

appeal, overruling his assignment of error concerning his resentencing pursuant to

Foster.

       {¶10} Over three years later, on November 17, 2010, Hines filed a motion

to vacate a void sentence and resentence because he was not properly informed of

postrelease control at sentencing. The trial court scheduled a hearing on the matter

for December 20, 2010.

       {¶11} On December 10, 2010, Hines filed a motion for sentence to a lesser

degree of the offense, now arguing that the jury-verdict forms in his case were

deficient pursuant to State v. Pelfrey, 112 Ohio St.3d 422, because they did not

include the degree of offense or the aggravating element of the offenses for which

he was found guilty. Hines maintained that based on the deficiency in the jury-

verdict forms, the trial court was without authority to convict and sentence him to

anything higher than the lowest degree of the offense.

       {¶12} The matter of the improper imposition of postrelease control was

heard by the trial court on December 20 and 21, 2010. The trial court noted that it

had properly notified Hines on the record at the September 25, 2006 resentencing

hearing that he is subject to a mandatory three years of postrelease control, but that

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the September 26, 2006 judgment entry of resentencing contained the words “up

to” instead of specifying that Hines’s three years of postrelease control supervision

were mandatory. The trial court also addressed Hines’s motion for sentence to a

lesser degree of the offense, noting that this court had had an opportunity to

consider the issue of the jury-verdict forms in Hines’s first appeal and that Hines

had failed to raise the issue of the jury-verdict forms on his second appeal after

Pelfrey had been released. Because this court had had two opportunities to review

the issue, the trial court concluded that Hines’s motion for sentence to a lesser

degree of the offense was barred by res judicata.

       {¶13} The trial court further noted that because Hines was resentenced after

the effective date specified in R.C. 2929.191, a de novo hearing was not required.

Therefore, the trial court determined that the only issue properly before it was

whether the September 26, 2006 judgment entry of resentencing should be

corrected to reflect the proper term of postrelease control.       Accordingly, on

December 21, 2010, the trial court resentenced Hines and issued a nunc pro tunc

entry, as authorized by R.C. 2929.191, to correct the September 26, 2006

judgment entry of resentencing.

       {¶14} Hines now appeals this judgment, asserting the following assignment

of error.

                          ASSIGNMENT OF ERROR

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                    The trial court erred in ruling the defendant’s motion
             pursuant to State v. Pelfrey was barred by res judicata, and
             not resentencing the defendant on the least degree of the
             offense to which he was convicted.

      {¶15} In his sole assignment of error, Hines argues that the trial court erred

when it determined that his motion for sentence to a lesser degree was barred by

res judicata. In support of his argument, Hines asserts that the September 26, 2006

judgment entry of resentencing is “void, not only for the postrelease control issue,

but also because the verdict forms did not comply with the terms of [R.C.

2945.75].” Hines further contends that void sentences are not precluded by res

judicata and can be reviewed at any time.

      {¶16} Initially, we note that in our review of Pelfrey, we find no indication

that a failure to strictly comply with R.C. 2945.75 renders a judgment void.

Moreover, Hines cites no case law that so holds, nor have we found any such

authority. Moreover, the Supreme Court of Ohio made it clear that its decision in

Pelfrey did not make “new” law, but simply applied R.C. 2945.75 as the Ohio

General Assembly had expressly written it. Accordingly, any failure of the jury

verdicts to comply with the statute, or any reduction of sentence pursuant to

Pelfrey, should have been raised on Hines’s direct appeal from his September 26,

2006 resentencing. Hines had over four months between the release of Pelfrey and

the issuance of this court’s decision on his second appeal to raise this issue.

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However, Hines chose not to do so. Consequently, the issue is now barred by res

judicata. See, e.g,. State v. Martin, 9th Dist. No. 25534, 2011-Ohio-1781, at ¶ 7;

State v. Sowards, 4th Dist. No. 09CA8, 2011-Ohio-1660, at ¶ 10; State v. Baldwin,

5th Dist. No. 2010-CA-00223, 2011-Ohio-495 (all reaching similar conclusions on

the matter).

       {¶17} Furthermore, the Supreme Court of Ohio in State v. Fischer clarified

the meaning of “void” as it relates to the improper imposition of postrelease

control by stating that “when a judge fails to impose statutorily mandated

postrelease control as part of a defendant’s sentence, that part of the sentence is

void and must be set aside.        Neither the Constitution nor common sense

commands anything more.” (Emphasis omitted.) State v. Fischer, 128 Ohio St.3d

92, 2010-Ohio-6238, 942 N.E.2d 332, 2010-Ohio-6238, at ¶ 26. Accordingly, “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. Thus, the only part of Hines’s sentence considered to be void is the error in

the judgment entry of resentencing concerning postrelease control.

       {¶18} Fischer further holds that “the new sentencing hearing to which an

offender is entitled under Bezak is limited to proper imposition of postrelease

control.” Fischer at ¶ 29. Therefore, we concur with the reasoning of the trial

court that the only matter properly before it was the correction of Hines’s

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judgment entry of resentencing pursuant to R.C. 2929.191 and that all other

matters relating to his conviction and sentence were barred by res judicata.

       {¶19} Based on the foregoing, Hines’s assignment of error is overruled, and

the judgment of the Allen County Court of Common Pleas is affirmed.

                                                                Judgment affirmed.

PRESTON and WILLAMOWSKI, JJ., concur.




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