[Cite as State v. Abernathy, 2011-Ohio-1056.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        SCIOTO COUNTY


STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :   Case No. 10CA3341

        vs.                                        :

PERCY J. ABERNATHY, III,                           :   DECISION AND JUDGMENT ENTRY


        Defendant-Appellant.                       :

_________________________________________________________________

                                            APPEARANCES:

APPELLANT PRO SE:                 Percy J. Abernathy, III, #549-410, P.O. Box 69, London, Ohio,
                                         43140, Pro Se

COUNSEL FOR APPELLEE:         Mark E. Kuhn, Scioto County Prosecuting Attorney, and
                              Pat Apel, Scioto County Assistant Prosecuting Attorney,
                              602 Seventh Street, Room 310, Portsmouth, Ohio 45662
_________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 2-28-11

ABELE, J.

        {¶ 1} This is an appeal from a Scioto County Common Pleas Court re-sentencing

judgment. Percy J. Abernathy, III, defendant below and appellant herein, assigns the following

errors for review:

                 FIRST ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT ERRED DURING SENTENCING, WHEN
                 IT FORCED DEFENDANT TO STICK TO A 9 YEAR
                 SENTENCING AGREEMENT, AFTER JURY TRIAL, WHEN IT
                 WAS OBVIOUS FROM THE RECORD AND THE
SCIOTO, 10CA3341                                                                                   2

               DEFENDANT THAT HE NO LONGER WANTED THE
               AGREEMENT AND THAT HE WANTED THE COURT TO
               CONSIDER THE APPLICABLE FACTORS TO DETERMINE
               WHETHER OR NOT HE QUALIFIED FOR A THREE YEAR
               MINIMUM/TIME SERVED SENTENCE DURING
               RESENTENCING.”

               SECOND ASSIGNMENT OF ERROR:

               “THE TRIAL COURT ERRED DURING SENTENCING, WHEN
               IT FAILED TO PROPERLY NOTIFY THE DEFENDANT OF
               ALL THE APPLICABLE CONSEQUENCES FOR A POST
               RELEASE CONTROL VIOLATION IF HE WAS TO VIOLATE
               PRC AFTER BEING PLACED UPON IT BY THE PAROLE
               BOARD..”

               THIRD ASSIGNMENT OF ERROR:

               “THE TRIAL COURT ERRED IN FAILING TO SUPPRESS
               EVIDENCE OBTAINED AS THE RESULT OF AN
               UNREASONABLE WARRANTLESS SEARCH AND
               SEIZURE.”

       {¶ 2} In 2007, appellant was convicted of (1) first-degree felony possession of cocaine;

(2) first-degree felony trafficking in crack cocaine; (3) fifth-degree felony possession of cocaine;

and (4) possession of criminal tools. The trial court sentenced appellant to serve: (1) a

mandatory nine-year prison term for possession of cocaine; (2) a mandatory nine-year prison

term for trafficking; (3) twelve months for the fifth-degree felony drug possession charge; and (4)

twelve months for the possession of criminal tools. The court further ordered the sentences to

be served consecutively for a total sentence of twenty years.

       {¶ 3} In State v. Abernathy, Scioto App. No. 07CA3160, 2008-Ohio- 2949, at ¶¶45-46

(Abernathy I), we reversed appellant's sentence on the grounds that the possession and trafficking

of crack cocaine are allied offenses of similar import. The trial court issued a new judgment on
SCIOTO, 10CA3341                                                                                    3

July 2, 2008 and held that the trafficking and possession charges had merged and sentenced

appellant to an aggregate total of eleven years.

       {¶ 4} Appellant commenced these particular proceedings on May 21, 2009 and argued

that the re-sentencing is void because the trial court did not adequately inform him of

post-release control.   A sentencing hearing was then held on December 16, 2009, at which time

the court conveyed that information to appellant. The following day, the trial court issued

another re-sentencing judgment that imposed an aggregate sentence of nine years and repeated

the warning concerning postrelease control. On May 12, 2010, we granted appellant leave to file

a delayed appeal, and the matter is properly before us for review.

                                                   I

       {¶ 5} Appellant’s first assignment of error appears to posit that the trial court erred in

re-sentencing him. We agree, albeit for different reasons than appellant argues in his brief.

       {¶ 6} The 2009 re-sentencing entry modified the 2008 re-sentencing entry by reducing

the term of imprisonment from eleven years to nine. Once a valid sentence is carried into

execution, a trial court has no jurisdiction to modify that sentence. State v. Garretson (2000),

140 Ohio App.3d 554, 558-559, 748 N.E.2d 560; State ex rel. Duffy v. Pittman, Portage App.

No. 2006-P-0043, 2007-Ohio-346 at ¶9; State v. Young, Montgomery App. No. 20813,

2005-Ohio-5584, at ¶6. Of course, at the time appellant commenced the instant proceedings, the

2008 judgment was not valid as it did not contain notification about post-release control. See

State v. Bezak, 114 Ohio St.3d 94, 868 N.E.2d 961, 2007-Ohio-3250, at the syllabus. Thus, at

the time of the trial court proceedings, the trial court did possess jurisdiction to modify that

sentence.
SCIOTO, 10CA3341                                                                                     4

       {¶ 7} However, the Ohio Supreme Court recently modified the Bezak syllabus. See

State v. Fischer, ___ Ohio St.3d ___, ___ N.E.2d ___, 2010-Ohio-6238, at paragraph two of the

syllabus. Now it appears that only the particular part of the sentence that fails to comply with

the proper imposition of post-release control is void and re-sentencing must be limited to the

proper imposition of that control. Id. at ¶¶28-29. Because court decisions generally apply

retrospectively, see e.g. DiCenzo v. A-Best Prods. Co., Inc., 120 Ohio St.3d 149, 897 N.E.2d

132, 2008-Ohio-5327, at paragraph one of the syllabus; also see State v. Akers (Sep. 9, 1999),

Lawrence App No. 98CA33, at fn. 5, the trial court had no authority to do more than to comply

with the post-release control requirements. Appellant’s remaining eleven year prison sentence is

still valid and the trial court had no authority (applying Fischer retrospectively) to modify that

sentence.

       {¶ 8} Therefore, we sustain appellant’s first assignment of error to this limited extent.

The December 17, 2009 judgment will be vacated and the matter remanded for further

proceedings consistent with this opinion.

                                                  II

       {¶ 9} Appellant asserts in his second assignment of error that the court erred by not

warning him of the consequences of violating his postrelease control. The appellee candidly

concedes this error in its brief. Although this error is technically moot, in view of our

disposition of appellant's first assignment of error, we nevertheless agree with appellee.

       {¶ 10} We acknowledge that the December 16, 2009 hearing transcript reveals that the

trial court warned appellant of “consequences” for "violating conditions of post release control.”

However, at the hearing no further explanation of those consequences occurred. Further, the
SCIOTO, 10CA3341                                                                                    5

sentencing entry only specified that appellant was “ordered” to serve “any prison term for

violation of that post release control.” Was this sufficient? We agree with the appellee that it is

not.

       {¶ 11} When imposing sentence, trial courts must notify an offender at the sentencing

hearing that he will be supervised pursuant to R.C. 2967.28 and, upon violating postrelease

control, the parole board may impose a prison term of up to one-half of the prison term originally

imposed. See R.C. 2929.19(B)(3)(e). Our interpretation of recent case law that applies this

statute is that the potential for additional prison time must be explicitly spelled out. See e.g.

State v. Bloomer, 122 Ohio St.3d 200, 909 N.E.2d 1254, 2009-Ohio-2462, at ¶2; State v. Huber,

Cuyahoga App. No. No. 93923, 2010-Ohio-5586, at ¶30.

       {¶ 12} Thus, we agree with the appellee it is insufficient to simply warn appellant that

“consequences” would arise for violating postrelease control. Therefore, appellant's second

assignment of error is well-taken and hereby sustained.

                                                 III

       {¶ 13} Appellant’s third assignment of error asserts the trial court committed reversible

error by not granting his motion to suppress evidence during the original trial court proceedings.

We disagree.

       {¶ 14} This is an issue that should have been pursued in Abnernathy I. The doctrine of

res judicata bars an issue from being raised in a subsequent appeal if it was also raised, and

disposed of on the merits, in a previous appeal. Moreover, an argument that could have been

raised on a previous appeal, but was not, is also barred by the doctrine of res judicata. The Ohio

Supreme Court made clear in Fischer,2010-Ohio-6238, at paragraph three of the syllabus, that res
SCIOTO, 10CA3341                                                                                     6

judicata still applies to every other part of a sentencing judgment except those that fail to comply

with post-release control requirements.

       {¶ 15} Accordingly, to the extent that this suppression issue was raised in Abernathy I,

See 2008-Ohio-2949, at ¶¶15-39, it cannot be considered again at this late date. To the extent

that this issue could have been raised in Abernathy I, but was not, it is also overruled. The

suppression issue cannot be considered again at this late date and appellant’s third assignment of

error is hereby overruled.

       {¶ 16} Having sustained appellant’s first assignment of error to a limited extent, as well

as his second assignment of error, the 2009 re-sentencing entry is vacated and this matter is

hereby remanded for further proceedings consistent with this opinion.

                                                JUDGMENT VACATED AND CASE
                                                REMANDED FOR FURTHER
                                                PROCEEDINGS CONSISTENT WITH
                                                THIS OPINION.
                                      JUDGMENT ENTRY

       It is ordered that the judgment be vacated and the case remanded for further proceedings

consistent with this opinion. Appellant to recover of appellee 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 Scioto County

Common Pleas Court to carry this judgment into execution.

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

the Rules of Appellate Procedure.

       Harsha, P.J. & Kline, J.: Concur in Judgment & Opinion

                                                              For the Court
SCIOTO, 10CA3341                                                                                 7




                                                           BY:
                                          Peter B. Abele, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
