[Cite as State v. Santiago, 2011-Ohio-3059.]

               Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 95564


                                        STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                     ANIBAL SANTIAGO

                                                        DEFENDANT-APPELLANT



                                               JUDGMENT:
                                                AFFIRMED


                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                        Case No. CR-348400

        BEFORE: Stewart, J., Kilbane, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED: June 23, 2011
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY:   John T. Martin
          Assistant Public Defender
310 Lakeside Avenue, Suite 400
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Diane Smilanick
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113




MELODY J. STEWART, J.:

       {¶ 1} Defendant-appellant, Anibal Santiago, appeals his resentencing

by the Cuyahoga County Court of Common Pleas. Following review of the

record and for the reasons stated below, we affirm.

       {¶ 2} In 1997, Santiago was indicted on two counts of aggravated

murder and one count of aggravated burglary.          All counts included a

three-year firearm specification. Santiago pleaded not guilty and the case
proceeded to trial.    After the trial had commenced, Santiago changed his

mind and decided to plead guilty to amended counts of involuntary

manslaughter, felonious assault, and aggravated burglary. In the amended

indictment, only Count 1 included a firearm specification. The trial court

accepted Santiago’s plea and sentenced him to 13 years on Count 1, two years

on Count 2, and ten years on Count 3. The court ordered all terms served

consecutively for a total of 25 years in prison. Santiago did not appeal this

conviction.

      {¶ 3} In 1998, Santiago filed a motion to withdraw his guilty plea.   He

filed another motion to withdraw his plea in 1999.       Both motions were

denied.   In 2009, Santiago filed a motion for a new sentencing hearing

claiming that the 13-year sentence on Count 1 was illegal, the court failed to

properly impose postrelease control (PRC), and the court failed to merge

allied offenses. This motion was also denied. Santiago’s appeal of the trial

court’s order denying the motion was dismissed by this court as untimely filed

on February 2, 2010.

      {¶ 4} On July 13, 2010, at the request of the Adult Parole Authority,

the trial court conducted a resentencing hearing. The court explained that

the purpose of the hearing was to correct an error in the original sentencing

entry that failed to differentiate between the prison term imposed for the

base charge of involuntary manslaughter and the term imposed for the
firearm specification included with that charge. The court offered appellant

the opportunity to withdraw his plea or to go forward with resentencing.

Appellant opted for resentencing and asked the court to impose a lesser

sentence.     He informed the court that he was a first time offender, had

agreed to plead guilty, and that his co-defendants had all received a less

severe sentence and been released.         The court reiterated that the only

purpose of the hearing was to correct the error in the original sentencing

entry.

         {¶ 5} The court proceeded to impose the same 25-year total sentence,

this time specifying that it consisted of ten years on the base charge in Count

1, three years on the firearm specification attached to Count 1, two years on

Count 2, and ten years on Count 3.         The court also properly imposed a

mandatory term of five years postrelease control and advised Santiago of the

consequences for a violation of PRC.

         {¶ 6} Santiago timely appeals from the July 16, 2010 judgment, raising

four errors for our review. Because the first two assignments of error are

substantially interrelated, we address them together.

         {¶ 7} In his first assignment of error, Santiago argues that due to the

unnecessary delay in sentencing, the trial court lacked authority to sentence

him. He contends that because the court failed to impose postrelease control

in 1997, his original sentence is void. When a sentence is void, Santiago
contends, it is as if it had never occurred. Therefore, he concludes, there is a

13-year delay between the time he entered his plea and the actual imposition

of sentence.   He argues that such a delay in sentencing violates Crim.R.

32(A), which provides that:         “[s]entence shall be imposed without

unnecessary delay.”

      {¶ 8} In his second assignment of error, Santiago argues that because

his 1997 sentence is void and a nullity, he is entitled to a de novo sentencing

that includes the consideration of a lesser sentence.

      {¶ 9} The argument that there was an unnecessary delay in sentencing

is without merit.     This court has rejected the same argument in State v.

King, 8th Dist. No. 95233, 2011-Ohio-1079, where we stated, “[t]he

circumstances here do not implicate Crim.R. 32(A) as this is not a case where

the trial court refused to sentence [the defendant]. Where there is a delay

between the sentence and a resentencing occasioned by the failure to include

a required term of postrelease control in the original entry, such matter

involves the correction of a void sentence and not a delay in imposing the

original sentence.” Id. at ¶2 citing to, State v. Jaffal, Cuyahoga App. No.

93142, 2010-Ohio-4999.        See, also, State v. Mundy, 9th Dist. No.

10CA0039-M, 2011-Ohio-1157.

      {¶ 10} Additionally, the Ohio Supreme Court’s recent holding in State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, governs this
case. In Fischer, the court held 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.”          Id. at ¶25.    “[O]nly the

offending portion of the sentence is subject to review and correction.” Id. at

¶27.   “[T]he new sentencing hearing to which an offender is entitled [for

failure to properly include postrelease control] is limited to proper imposition

of postrelease control.” Id. at ¶29.

       {¶ 11} Pursuant to Fischer, “the postrelease control component of the

sentence is fully capable of being separated from the rest of the sentence as

an independent component, and the limited resentencing must cover only the

postrelease control.    * * *    The remainder of the sentence, which the

defendant did not successfully challenge, remains valid under the principles

of res judicata.” Fischer, ¶17 (quoting State v. Bezak, 114 Ohio St.3d 94,

2007-Ohio-3250, 868 N.E.2d 961, ¶22 (O’Connor, J., dissenting, joined by

Lundberg Stratton, J.)).

       {¶ 12} Applying the holding in Fischer to the facts of the instant case, we

find that because the 1997 sentencing entry did not include the statutorily

mandated term of postrelease control, that part of the sentence was void and

needed to be corrected. The entire sentence, however, is not a nullity and a

de novo sentencing was not warranted. Instead, the court was required to

conduct a limited resentencing to correct the postrelease control error. The
remainder of the 1997 sentence, which Santiago did not appeal, remains

valid. Accordingly, the first and second assignments of error are overruled.

      {¶ 13} In his third assignment of error, Santiago challenges his

convictions and argues that the trial court erred by not considering whether

the counts of conviction were allied offenses of similar import subject to

merger. He contends that because the offenses were potentially allied, the

court should have held a hearing on the issue before imposing sentence.

      {¶ 14} This argument is barred by the doctrine of res judicata.     Under

the doctrine, “a final judgment of conviction bars the convicted defendant

from raising and litigating in any proceeding, except an appeal from that

judgment, any defense or any claimed lack of due process that was raised or

could have been raised by the defendant at the trial which resulted in that

judgment of conviction or on an appeal from that judgment.” State v. Perry

(1967), 10 Ohio St.2d 175, 180, 226 N.E.2d 104.

      {¶ 15} As noted above, Santiago’s 1997 conviction is valid except as to

postrelease control.   Santiago could have, but did not, raise the issue of

potentially allied offenses through a direct appeal of his conviction. Having

failed to do so, res judicata now bars him from raising the issue in this

appeal. The third assignment of error is overruled.

      {¶ 16} In his fourth assignment of error, Santiago argues that the trial

court erred in imposing consecutive sentences without making the specific
judicial findings required by R.C. 2929.14(E)(4). Santiago acknowledges that

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

such findings were no longer required. However, he argues that the Foster

remedy of excising sentencing sections that require findings is no longer

necessary as a result of the United States Supreme Court’s decision in Oregon

v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, which held that

judicial fact-finding with respect to consecutive terms of imprisonment does

not violate the Sixth Amendment.        Santiago contends that the judicial

findings mandated by R.C. 2929.14(E) are still operative and absent such

findings his consecutive sentences must be vacated.

      {¶ 17} The Ohio Supreme Court has rejected this argument.       State v.

Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768. In Hodge, the

court held that, “[a]fter Ice, it is now settled law * * * that the jury-trial

guarantee of the Sixth Amendment to the United States Constitution does

not preclude states from requiring trial court judges to engage in judicial

fact-finding prior to imposing consecutive sentences.” Id. at ¶19. However,

the court went on to hold that the decision in Ice “does not revive Ohio’s

former consecutive-sentencing statutory provisions * * * which were held

unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470.”     Hodge at paragraph two of the syllabus.         Accordingly,

appellant’s fourth assignment of error is overruled.
       Judgment affirmed.

       It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, A.J., and
MARY J. BOYLE, J., CONCUR
