[Cite as State v. Andrews, 2011-Ohio-2462.]




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



STATE OF OHIO,                                           CASE NO. 1-10-78

   PLAINTIFF-APPELLEE,

  v.

SHAITON L. ANDREWS,                                            OPINION

   DEFENDANT-APPELLANT.



                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2004 0537

                                     Judgment Affirmed

                              Date of Decision: May 23, 2011




APPEARANCES:

        Shaiton L. Andrews, Appellant

        Christina L. Steffan for Appellee
Case No. 1-10-78




PRESTON, J.

       {¶1} Defendant-appellant, Shaiton L. Andrews (hereinafter “Andrews”),

appeals the judgment of the Allen County Court of Common Pleas resentencing

him to twenty-six (26) years in prison. For the reasons that follow, we affirm.

       {¶2} This case originated on January 13, 2005, when the Allen County

Grand Jury returned an indictment against Andrews, charging him with two

separate counts of aggravated robbery in violation of R.C. 2911.01(A)(1), felonies

of the first degree.    Each count of the indictment also contained a firearm

specification pursuant to R.C. 2941.145(A).

       {¶3} On January 24, 2005, Andrews appeared in court for arraignment and

entered pleas of not guilty.

       {¶4} On July 21, 2005, a hearing was held on a motion filed by Andrews’

counsel, which sought leave to withdraw from the case. The trial court found the

motion to be well taken, and permitted Andrews’ counsel to withdraw. At that

time, Andrews informed the trial court that he wished to represent himself. The

trial court ordered that new counsel be appointed and ruled that it would take up

Andrews’ request to go forward pro se after new counsel was appointed.

       {¶5} On August 15, 2005, following the appointment of new defense

counsel, a hearing was held on Andrews’ request to represent himself. Again,

Andrews repeated his desire to go forward pro se in the case. The trial court then

                                        -2-
Case No. 1-10-78



held a lengthy dialogue with Andrews, advising him of the potential problems of

self-representation.   Nevertheless, based on Andrews’ repeated insistence on

representing himself, the trial court permitted Andrews to go forward pro se, on

the condition that Andrews’ defense counsel stay on the case as “shadow counsel”

to assist Andrews.

       {¶6} On August 29-30, 2005, a jury trial was held, and after the

presentation of evidence, the jury returned a verdict finding Andrews guilty on

both counts in the indictment, as well as findings of guilty on both of the firearm

specifications.   The matter then proceeded to sentencing.      At the sentencing

hearing, the trial court sentenced Andrews to ten (10) years in prison on each of

the aggravated robbery counts and three (3) years in prison on each of the firearm

specifications. All sentences were ordered to run consecutively, for an aggregate

sentence of twenty-six (26) years in prison.

       {¶7} This Court affirmed Andrews’ conviction on July 24, 2006. State v.

Andrews, 3d Dist. No. 1-05-70, 2006-Ohio-3764.

       {¶8} On October 25, 2010, Andrews filed a Motion for Resentencing

claiming that his sentence was “void” because the trial court had failed to comply

with the instructions pertaining to postrelease control pursuant to State v. Bezak,

114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961 and other related cases. On

October 26, 2010, the trial court granted Andrews’ motion.


                                        -3-
Case No. 1-10-78



       {¶9} On November 17, 2010, a resentencing hearing was held, at which

time, the trial court resentenced Andrews to ten (10) years in prison on each of the

aggravated robbery counts, and three (3) years in prison on each of the firearm

specifications. All sentences were again ordered to run consecutively, for an

aggregate sentence of twenty-six (26) years in prison. In addition, the trial court

advised Andrews that he was subject to five (5) years of mandatory postrelease

control.

       {¶10} Andrews now appeals and raises the following assignment of error.

                              ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION IN
       IMPOSING A SENTENCE BASED ON IMPERMISSIBLE
       FACTORS NOT SUPPORTED BY THE RECORD AND
       INCONSISTENT AND NOT COMMENSURATE WITH
       SIMILAR OFFENDERS, AND CONTRARY TO LAW, IN
       VIOLATION OF DUE PROCESS.

       {¶11} In his only assignment of error, Andrews argues that the trial court

abused its discretion in sentencing him to twenty-six (26) years in prison on two

counts of aggravated robbery, each with a firearm specification. Andrews cites

several reasons why he believes his sentence was unjust. First, Andrews claims

that the trial court erred in finding that he had been part of an organized criminal

activity. Andrews also claims that the trial court erred in referencing his juvenile

record when it was sealed. Andrews additionally argues that the trial court based

its decision on impermissible factors and failed to consider the relevant sentencing

                                        -4-
Case No. 1-10-78



factors. Moreover, Andrews claims that twenty-six (26) years is excessive for a

robbery charge. Finally, Andrews asserts that consecutive sentences are expressly

forbidden under R.C. 5145.01.

       {¶12} However, on December 23, 2010, the Ohio Supreme Court issued its

decision in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,

which clarified the errors that could be reviewed after a new sentencing hearing is

held for purposes to correct a trial court’s failure to properly impose postrelease

control. In Fischer, the Court abrogated parts of its decision in Bezak and held

“that the new sentencing hearing to which an offender is entitled under Bezak is

limited to proper imposition of postrelease control.” Id. at ¶29. The Court further

held that “[a] sentence that does not include the statutorily mandated term of

postrelease control is void, is not precluded from appellate review by principles of

res judicata and may be reviewed at any time, on direct appeal or by collateral

attack.” Id. at paragraph one of the syllabus. However, “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 paragraph three of the

syllabus (emphasis added).

       {¶13} Consequently, under Fischer, when postrelease control is not

properly included in a sentence for a particular offense, that sentence is void, but

“only the offending portion of the sentence is subject to review and correction.”


                                        -5-
Case No. 1-10-78



Fischer, 2010-Ohio-6238, at ¶27. Furthermore, the doctrine of res judicata still

applies to other aspects of a defendant’s case, including specifically “the lawful

elements of the ensuing sentence.” Id. at paragraph three of the syllabus.

       {¶14} Here, the purpose of Andrews’ resentencing hearing was to correct

the portion of the sentence pertaining to postrelease control. As this Court has

previously stated, a defendant’s resentencing hearing under Bezak “cannot be used

as a vehicle to reopen all other aspects of his case.” State v. Giffin, 3d Dist. No. 1-

10-27, 2011-Ohio-1462, ¶9. Thus, any issues raised on appeal from Andrews’

resentencing hearing must be limited to the subject of postrelease control;

however, Andrews’ assignment of error is not related to postrelease control.

Furthermore, we find that the issues raised by Andrews in this appeal are barred

by res judicata since they could have been raised in the trial court at his original

sentencing or in this Court in his direct appeal of his conviction and sentence. See

State v. Bregen, 12th Dist. No. 2010-06-039, 2011-Ohio-1872, ¶27.

       {¶15} Therefore, Andrews’ assignment of error is overruled.

       {¶16} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jnc


                                         -6-
