[Cite as State v. Williams, 2012-Ohio-1475.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )
VS.                                              )          CASE NO. 11-MA-24
                                                 )
ANTHONY LAMONT WILLIAMS,                         )               OPINION
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 97CR925

JUDGMENT:                                        Affirmed and Modified
APPEARANCES:
For Plaintiff-Appellee                           Paul Gains, Prosecutor
                                                 Ralph M. Rivera, Ass’t Prosecutor
                                                 21 W. Boardman St., 6th Floor
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Timothy Young
                                                 Public Defender
                                                 Stephen P. Hardwick
                                                 Assistant Public Defender
                                                 250 East Broad Street, Suite 1400
                                                 Columbus, Ohio 43215

                                                 Anthony Lamont Williams – pro se
                                                 356-402
                                                 Lake Erie Correctional Institution
                                                 P.O. Box 8000
                                                 Conneaut, Ohio 44030
JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite

                                                 Dated: March 28, 2012
[Cite as State v. Williams, 2012-Ohio-1475.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Anthony Williams, appeals from Mahoning County
Common Pleas Court judgments resentencing him and overruling his motions to
modify the guilty verdict and to arrest judgment.
        {¶2}     Appellant was convicted of aggravated murder with a firearm
specification in 1998 following a jury trial.     In his direct appeal, we set out the
following facts.
        {¶3}     “During the evening hours of September 21, 1997 and the early
morning hours of September 22, 1997, appellant gathered together a group of
individuals amongst which were Tracy Fears, Brian Thomas and Semmie Shorter. It
is disputed as to whether Gerald Hardaway was also a member of the group. The
group was formed in order to exact revenge upon Chris Chapman who was believed
to have killed appellant's cousin on September 16, 1997. In that Chapman was
known to frequent his girlfriend's residence, the group had showered her house with
bullets the prior evening. However, since neither Chapman nor his girlfriend were
injured or killed in that attack, the group devised a more thorough plan in order to
avenge the death of appellant's cousin.
        {¶4}     “It was decided that the group would firebomb the residence where
Chapman and his girlfriend were staying in an attempt to force the individuals from
the house. Once the two fled the burning structure, the group would then shoot them.
In preparation of this plan, the group obtained ski masks from Wal-Mart. Additionally,
firebombs were prepared and guns were gathered. The group entered appellant's
van and set off to put their plan into effect. At some point in time during the course of
the above described events, Antwon Stroughn joined the group.
        {¶5}     “When the group arrived in the vicinity of the targeted house, appellant
parked the van and the group exited the vehicle with their guns and firebombs. While
walking to the site where the plan was to be carried out, Stroughn advised the group
that he no longer wished to be involved in the plan. Upon making this decision to
abandon the plan, Stroughn was advised that he would be killed if he refused to
assist in the firebombing and shooting. Subsequently, both appellant and Shorter
                                                                                   -2-


shot Stroughn a number of times which resulted in his death. There is some
testimony on record which suggests that while the group did not complete their plan,
they did nonetheless fire shots at the targeted residence prior to fleeing the area.
Stroughn was found dead the next day with a total of four bullet wounds.” State v.
Williams, 7th Dist. No. 98-CA-74, 2000 WL 309390, *1 (Mar. 20, 2000).
          {¶6}   The trial court sentenced appellant to life in prison with eligibility for
parole after serving 20 years for the aggravated murder conviction and a three year
prison term for the firearm specification to be served prior to and consecutive to the
life sentence.
          {¶7}   Appellant appealed from his conviction arguing (1) the trial court should
not have instructed the jury on transferred intent, (2) the jury’s verdict was against the
weight of the evidence, and (3) the court erred by allowing prejudicial photographs
into evidence. This court overruled appellant’s assignments of error and affirmed his
conviction.
          {¶8}   Over six years later, appellant filed a delayed petition for postconviction
relief.   The trial court dismissed his petition.     On appeal, this court affirmed the
dismissal. State v. Williams, 7th Dist. No. 07-MA-57, 2008-Ohio-1187.
          {¶9}   On December 21, 2010, appellant filed a pro se motion for resentencing
arguing that his sentence was void because the trial court failed to state a term of
postrelease control. On January 21, 2011, appellant filed a pro se motion to modify
the guilty verdict and a pro se motion to arrest judgment.
          {¶10} The trial court held a hearing on January 21, 2011, where it advised
appellant that he was subject to five mandatory years of postrelease control.
Appellant’s sentence remained the same. The court entered a judgment accordingly.
          {¶11} The court held another hearing on January 28, 2011, to address
appellant’s other motions.        The motions alleged that (1) the trial court lacked
jurisdiction over appellant because the indictment did not charge him with the
element of transferred intent and (2) that the verdict form did not contain the
                                                                               -3-


aggravating elements of the offense and, therefore, the court was required to find him
guilty of the lesser offense of murder. The trial court overruled these motions.
       {¶12} Appellant filed a timely notice of appeal from the new sentencing
judgment as well as from the judgment overruling his other motions.
       {¶13} Appellant’s appointed counsel raises a single assignment of error,
which states:
       {¶14} “THE TRIAL COURT ERRED BY ADDING POSTRELEASE CONTROL
TO AN AGGRAVATED MURDER SENTENCE.”
       {¶15} Appellant argues that the Ohio Supreme Court has ruled that
postrelease control does not attach to a sentence for only aggravated murder with a
firearm specification. Thus, he asks this court to modify his sentence to strike the
imposition of postrelease control.
       {¶16} Plaintiff-appellee, the State of Ohio, has filed a confession of judgment
as to this assignment of error.
       {¶17} In State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶36, the Ohio
Supreme Court stated:
       {¶18} “[A]n individual sentenced for aggravated murder * * * is not subject to
postrelease control, because that crime is an unclassified felony to which the
postrelease-control statute does not apply.”
       {¶19} Likewise this court has held:
       {¶20} “[T]he post-release control statute applies only to felonies of the first,
second, third, fourth, and fifth degree. See R.C. 2967.28(B), (C). Aggravated murder
is an unclassified felony whereby the defendant is either ineligible for parole or
becomes eligible for parole after serving a certain amount of years in prison. See
R.C. 2929.03(A)(1); 2967.13(A).” State v. Young, 7th Dist. No. 09-MA-100, 2011-
Ohio-2646, ¶68.
       {¶21} The trial court should not have imposed a period of postrelease control
on appellant since he was convicted of aggravated murder with a firearm
specification and no other offenses.
                                                                                -4-


       {¶22} As to the proper remedy to apply, we have previously stated that
because a sentence that includes an unauthorized term of post-release control is
unlawful and void, a de novo sentencing hearing is required. Young, at ¶70. In so
finding, we relied on State v. Crockett, 7th Dist. No. 07MA233, 2009-Ohio-2894, ¶9.
       {¶23} Since Crockett was decided, however, the Ohio Supreme Court
decided State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. In Fischer, the Court
held that the new sentencing hearing to which an offender is entitled after not being
properly informed regarding the imposition of postrelease control (pursuant to State
v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250) is limited to the proper imposition of
postrelease control. Id. at paragraph two of the syllabus. The Court went on to hold
that when a trial court fails to impose statutorily mandated postrelease control as part
of a defendant’s sentence, only that part of the sentence is void and must be set
aside. Id. at ¶26. The remainder of the defendant’s sentence stays in effect.
       {¶24} As such, in the present case appellant is not entitled to a de novo
sentencing hearing. See, State v. Silguero, 10th Dist. No. 11AP-274, 2011-Ohio-
6293; State v. Evans, 8th Dist. No. 95692, 2011-Ohio-2153. Instead, appellant is
simply entitled to a corrected judgment entry deleting any mention of postrelease
control.   Pursuant to our authority under App.R. 12(A)(1)(a) to affirm, modify, or
reverse the judgment appealed, we will modify appellant’s sentence to delete the
reference to postrelease control.
       {¶25} Accordingly, appellant’s counsel’s assignment of error has merit.
       {¶26} Appellant has also filed a pro se supplemental brief in which he raises
three additional assignments of error. All of appellant’s pro se assignments of error
are barred by the doctrine of res judicata. “‘Under the doctrine of res judicata, 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. Green, 7th Dist. No. 10-MA-43, 2010-Ohio-6271, ¶26, quoting State v. Perry,
                                                                                 -5-


10 Ohio St.2d 175, 180 (1967). The issues appellant now raises could have been
raised in his direct appeal.
       {¶27} Appellant’s first pro se assignment of error states:
       {¶28} “APPELLANT ANTHONY L. WILLIAMS’ RIGHT TO EFFECTIVE
ASSISTANCE       OF    TRIAL     COUNSEL       PROTECTED        UNDER      THE     SIXTH
AMENDMENT OF THE UNITED STATES CONSTITUTION WAS VIOLATED
DURING HIS RE [sic.] SENTENCING HEARING AND THEREAFTER IN A
SUBSEQUENT HEARING FOR COUNSEL’S FAILURE TO FILE A TIMELY MOTION
TO ARREST THE JUDGMENT FOURTEEN DAYS AFTER THE VERDICT WAS
RENDERED, AS THE INDICTMENT, INFORMATION, OR COMPLAINT FOUND BY
THE PRESENTMENT OF THE MAHONING COUNTY GRAND JURY DID NOT
CHARGE AN OFFENSE THAT MR. WILLIAMS PLANNED WITH INTENT TO KILL
CHRIS CHAPMAN AND CHEREE MOORE WITH PRIOR CALCULATION AND
DESIGN THAT WAS TRANSFERRED TO THE DEATH OF ANTWON STROUGHN,
THAT THE TRIAL COURT WAS WITHOUT SUBJECT MATTER JURISDICTION OF,
RENDERING THE CONVICTION, SENTENCE AND JUDGMENT UNDER THIS
DESCRIPTION, NULL AND VOID.”
       {¶29} Appellant argues that his trial counsel was ineffective during his
resentencing hearing and his subsequent motion hearing because counsel should
have filed a motion to modify the guilty verdict and a motion to arrest judgment within
14 days after trial based on a faulty indictment. Had counsel done so, appellant
alleges, there was a reasonable probability that the trial court would have granted
these motions. Appellant goes on to argue that his was not a case of transferred
intent and he is not guilty of planning to kill Stroughn with prior calculation and
design.
       {¶30} The alleged defect with appellant’s indictment would have been
apparent at trial and could have been raised in appellant’s direct appeal. Likewise, a
claim that trial counsel was ineffective for failing to file a motion to modify the guilty
verdict and a motion to arrest judgment on this basis would have been apparent and
                                                                               -6-


appellate counsel could have raised it in appellant’s direct appeal.           Notably,
appellant’s trial counsel and appellant’s appellate counsel were different attorneys.
       {¶31} Appellant’s second pro se assignment of error states:
       {¶32} “THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED
APPELLANT ANTHONY L. WILLIAMS’ RIGHT TO DUE COURSE OF LAW UNDER
ARTICLE I §16 OF THE OHIO CONSTITUTION AND HIS RIGHT TO DUE
PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT OF THE UNITED
STATES CONSTITUTION DURING A SUBSEQUENT HEARING WHEN IT DENIED
HIS MOTION TO ARREST THE JUDGMENT AS NOT HAVING JURISDICTION
EVEN THOUGH IT RETAINED JURISDICTION TO CORRECT A VOID SENTENCE
AND WAS AUTHORIZED TO DO SO WHEN ITS ERROR WAS APPARENT.”
       {¶33} As to appellant’s motions, the trial court concluded that because they
raised issues that could have been raised on direct appeal, it was without jurisdiction
to consider them. Appellant now argues that the trial court’s conclusion that it did not
have jurisdiction to address his motions was an unreasonable one warranting a
reversal.
       {¶34} Appellant contends that the jury’s verdict form was void because it did
not contain the aggravating elements of prior calculation and design. He relies on
the Ohio Supreme Court’s holding in State v. Pelfrey, 112 Ohio St.3d 422, 2007-
Ohio-256, at the syllabus:
       {¶35} “Pursuant to the clear language of R.C. 2945.75, 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.”
       {¶36} Pelfrey was not decided until well after appellant’s direct appeal was
decided. So arguably he was unaware of this requirement at the time of his direct
appeal. But if anything, this would be an issue for postconviction relief.
       {¶37} Appellant’s third pro se assignment of error states:
                                                                                -7-


       {¶38} “APPELLANT ANTHONY L. WILLIAMS[’] RIGHT TO EFFECTIVE
ASSISTANCE       OF    TRIAL    COUNSEL        PROTECTED       UNDER      THE       SIXTH
AMENDMENT OF THE UNITED STATES CONSTITUTION WAS VIOLATED
DURING A SUBSEQUENT HEARING FOR COUNSEL’S FAILURE TO FILE A
TIMELY MOTION TO MODIFY THE GUILTY VERDICT TO THE LEAST DEGREE
OF THE OFFENSE DUE TO THE VERDICT FORM SIGNED BY THE JURY FOR
FAILURE TO INCLUDE EITHER THE DEGREE OF SUBSECTION (A) OF THE
AGGRAVATED MURDER OFFENSE OR A STATEMENT THAT AN AGGRAVATED
ELEMENT ON THE DOCTRINE OF TRANSFERRED INTENT AND COMPLICITY
HAS BEEN CONSIDERED AND FOUND DEFENDANT GUILTY OF ALL
ESSENTIAL ELEMENTS OF AGGRAVATED MURDER.”
       {¶39} Here appellant argues that his trial counsel was ineffective for failing to
file a motion to modify the guilty verdict to the lesser degree of aggravated murder
because the verdict form signed by the jurors did not contain the degree of the
offense of aggravated murder, did not include language on transferred intent, and did
not include language on aiding and abetting.
       {¶40} If there was an error with the jury’s verdict form, this issue should have
been addressed in appellant’s direct appeal.      And as discussed above, because
Pelfrey was not decided until well after appellant’s direct appeal was decided, trial
counsel could not have been ineffective for failing to raise this issue.        Like the
previous issue, this too would be more appropriately addressed in a postconviction
petition.
       {¶41} Accordingly, appellant’s three pro se assignments of error are barred by
the doctrine of res judicata.
       {¶42} For the reasons stated above, appellant’s conviction is hereby affirmed
and the trial court’s judgment is modified to delete the reference to postrelease
                         -8-


control.

Vukovich, J., concurs.

Waite, P.J., concurs.
