[Cite as State v. Singfield, 2012-Ohio-1331.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                         C.A. No.      25670

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
PHILLIP A. SINGFIELD                                  COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 08 09 3117

                                  DECISION AND JOURNAL ENTRY

Dated: March 28, 2012



        MOORE, Presiding Judge.

        {¶1}     Appellant, Phillip Singfield, appeals from the judgment of the Summit County

Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     In a prior appeal, State v. Singfield, 9th Dist. No. 24576, 2009-Ohio-5945, this

Court set forth the underlying factual and procedural history as follows:

        At approximately 1:30 a.m. on July 26, 2008, Staci Smith and her cousin, Natea
        Proctor, drove to a bar on Newton Street. Smith parked her vehicle in the bar’s
        lot, and she and Proctor remained in the vehicle to eat some food that they had
        just purchased. While they were eating, a man approached the vehicle and asked
        the women for a light. Subsequently, the man produced a handgun and threatened
        to shoot the women while he demanded their purses. Smith and Proctor handed
        over their purses, and the man walked away, entered a nearby car, and drove off.
        Smith and Proctor went to the bar and called 911 to report the incident. Both
        Smith and Proctor provided the police with descriptions of their assailant.

        Smith later saw the man whom she believed had robbed her while riding the bus
        and again while walking down a street near her home. On the second occasion,
        Smith telephoned Proctor. Proctor, who was at Smith’s house, was able to look
        outside and see the man. Proctor also identified him as the person who had
        robbed her. Smith began to follow the man and called 911. Upon their arrival,
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       the police arrested Singfield, the man whom both Smith and Proctor had
       identified as their assailant.

       On October 3, 2008, a grand jury indicted Singfield on the following counts: (1)
       two counts of aggravated robbery, in violation of R.C. 2911.01(A)(1), both with
       firearm specifications, in violation of R.C. 2941.145; (2) two counts of robbery, in
       violation of R.C. 2911.01(A)(1)/(2), both with firearm specifications, in violation
       of R.C. 2941.145; (3) having a weapon while under disability, in violation of R.C.
       2923.13(A)(2)/(3); (4) theft, in violation of R.C. 2913.02(A)(1)/(4); and (5) petty
       theft, in violation of R.C. 2913.02(A)(1)/(4). The matter proceeded to a jury trial
       and, on December 15, 2008, the jury found Singfield guilty on all counts and the
       specifications linked to those counts. On December 16, 2008, the trial court
       orally sentenced Singfield, including a prison term for each specification, to a
       total sentence of fourteen years.

       On December 22, 2008, Singfield filed a motion to modify his sentence, arguing
       that his firearms specifications were allied offenses for which the trial court
       should not have imposed separate sentences upon him. The trial court held a
       hearing on the motion and issued another oral sentence. The trial court: (1)
       merged Singfield’s sentences for his two counts of robbery with firearm
       specifications with his counts for theft and petty theft; (2) increased his two
       aggravated robbery sentences by one year each and ordered them to run
       consecutively for a total period of ten years; (3) issued three year sentences on
       each of the two firearm specifications attached to Singfield’s two aggravated
       robbery convictions, ordering them to run concurrently with one another but
       consecutively with the sentence for aggravated robbery; and (4) ordered a one
       year consecutive sentence for having a weapon while under disability.
       Accordingly, Singfield still received a total sentence of fourteen years. The court
       journalized Singfield’s sentence on December 29, 2008.

       Singfield appealed, and this Court affirmed the judgment of the trial court in part
       and reversed it in part. State v. Singfield, 9th Dist. No. 24576, 2009-Ohio-4172.
       In reversing in part, this Court reversed Singfield’s convictions for aggravated
       robbery and their attendant specifications because his indictment did not include
       the mens rea of recklessness with regard to aggravated robbery’s deadly weapon
       element. Id. at ¶ 17-18. On August 27, 2009, the State filed an application for
       reconsideration. On October 7, 2009 we granted the State’s application, vacated
       our decision, and reinstated Singfield’s appeal.

Id. at ¶ 2-6. On reconsideration, this Court affirmed Singfield’s convictions.

       {¶3}    On April 15, 2010, Singfield filed a “Criminal Rule 47 Motion for Correction of

Judgment” contending that his judgment of conviction was not a final order because it failed to

properly address postrelease control and failed to state the manner of conviction. On May 28,
                                                 3


2010, Singfield filed a motion to dismiss the indictment because it did not contain the elements

of mental culpability. The trial court held a hearing on the motions on September 30, 2010. The

trial court denied the motion to dismiss the indictment on October 5, 2010. The trial court issued

a judgment entry on October 19, 2010 purporting to reimpose Singfield’s original sentence,

properly notify Singfield of postrelease control, and state the manner of conviction.

       {¶4}    Singfield timely filed a notice of appeal from the October 19, 2010 judgment

entry. He raises one assignment of error for our review.

                                                 II.

                                  ASSIGNMENT OF ERROR

       [] SINGFIELD’S INDICTMENT WAS DEFECTIVE UNDER THE OHIO
       CONSTITUTION, ARTICLE I, SECTION 10, AS THE STATE FAILED TO
       INCLUDE A MENTAL CULPABILITY ELEMENT TO THE THEFT
       ELEMENT OF AGGRAVATED ROBBERY, EITHER IN THE INDICTMENT,
       OR AT TRIAL.

       {¶5}    In his sole assignment of error, Singfield argues that his indictment was defective

under the Ohio Constitution because it failed to state the element of mental culpability.

       {¶6}    Before we address Singfield’s assignment of error, we must first address the

scope of the resentencing hearing. Singfield is appealing the October 19, 2010 entry correcting

the original sentencing entry that failed to comport with Crim.R. 32(C) and also failed to

properly notify him of postrelease control. We will address each deficiency separately.

Postrelease Control

       {¶7}    “The 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.” State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph four of the syllabus. Res judicata still

applies to other aspects of the merits of the conviction. Id. at paragraph three of the syllabus.
                                                4


Thus, according to Fischer, the only issues subject to review are those arising at the

resentencing, specifically those involving the postrelease-control notification. Id. at paragraph

two of the syllabus.    Because the trial court exceeded its authority when it attempted to

resentence Singfield on aspects of his sentence that did not relate to postrelease control and were

not void, we vacate those parts of the resentencing entry that addressed anything other than

postrelease control. Singfield’s original sentence remains in effect, as does the portion of the

appealed resentencing judgment that addresses postrelease control.

       {¶8}    Because Singfield has already had the benefit of one direct appeal, res judicata

precludes him from re-appealing the merits of his conviction following the trial court’s

correction of the postrelease control error. Id. at ¶ 33-36. Accordingly, we decline to address the

merits of his arguments in this assignment of error as they pertain to the merits of the underlying

conviction.

Crim.R. 32(C)/Baker

       {¶9}    With respect to the trial court’s correction of the Crim.R. 32(C) defect, the Ohio

Supreme Court has held that a trial court’s failure to include the manner of a defendant’s

conviction in a sentencing entry constitutes a technical failure to comply with Crim.R. 32(C) and

amounts to a clerical error. State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235,

¶ 19. The remedy for a clerical error in a sentencing entry is not a new sentencing hearing. Id. at

¶ 18. Rather, the appropriate remedy for such an error is a nunc pro tunc sentencing entry

reflecting the correction. Id. at ¶ 17-23. Because the trial court failed to issue a nunc pro tunc

entry to correct the original sentencing entry’s omission of the manner of conviction, we remand

the matter to the trial court to issue a nunc pro tunc entry as contemplated in Baker and Burge.
                                                 5


State v. Pettyjohn, 9th Dist. No. 10CA009777, 2011-Ohio-4461, ¶ 7, citing State v. Baker, 119

Ohio St.3d 197, 2008-Ohio-3330, ¶ 19; Burge at ¶ 16-23.

         {¶10} Accordingly, we do not reach the merits of Singfield’s assignment of error.

                                                III.

         {¶11} Because the trial court exceeded its authority when it attempted to resentence

Singfield on aspects of his sentence that were not void, we vacate those parts of the resentencing

entry that addressed anything other than postrelease control. Singfield’s original concurrent

sentences remain intact, as does the portion of the appealed resentencing judgment that addresses

postrelease control. Further, we remand the matter to the trial court to issue a nunc pro tunc

entry.

                                                                        Judgment affirmed in part,
                                                                                  vacated in part,
                                                                             and cause remanded.




         There were reasonable grounds for this appeal.

         We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

         Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                               CARLA MOORE
                                               FOR THE COURT



DICKINSON, J.
BELFANCE, J.
CONCUR.


APPEARANCES:

EDWIN C. PIERCE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
