[Cite as State v. Mitchell, 2011-Ohio-1958.]


                                        COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Sheila G. Farmer, P.J.
                        Plaintiff-Appellee     :      Hon. Julie A. Edwards, J.
                                               :      Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :      Case Nos. 10-CA-61; 10-CA-62
                                                      & 10-CA-63
MARK A. MITCHELL                               :
                                               :
                                               :
                       Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Delaware County Court of
                                                   Common Pleas Case Nos. 97-CR-I-12-
                                                   0473; 98-CR-I-05-0161; 98-CR-I-10-0347


JUDGMENT:                                          AFFIRMED IN PART; REVERSED IN
                                                   PART AND ORIGINAL CLASSIFICATION
                                                   REINSTATED

DATE OF JUDGMENT ENTRY:                            April 20, 2011


APPEARANCES:

For Plaintiff-Appellee:                               For Defendant-Appellant:

CAROL O’BRIEN                                         JOHN R. CORNELY 0072393
Delaware County Prosecuting Attorney                  21 Middle St.
140 N. Sandusky St.                                   P.O.Box 248
Delaware, Ohio 43015                                  Galena, Ohio 43021-2718

MARIANNE HEMMETER 0068896
Assistant Prosecuting Attorney
(Counsel of Record)
[Cite as State v. Mitchell, 2011-Ohio-1958.]


Delaney, J.

        {¶1}     Defendant-Appellant Mark A. Mitchell appeals the judgment of the

Delaware County Court of Common Pleas, who, at a resentencing hearing on July 19,

2010, imposed a Tier III sexual offender reclassification on him, informed him of

mandatory post release control, and affirmed his original sentence that was imposed in

1998. The State of Ohio is the Plaintiff-Appellee.

        {¶2}     On December 8, 1997, Appellant was indicted in Delaware County in

Case Number 97-CR-I-12-0473. On May 22, 1998, Appellant entered a guilty plea and

was convicted of one count of Gross Sexual Imposition, a felony of the third degree, in

violation of R.C. 2907.05(A)(4).

        {¶3}     On May 29, 1998, Appellant was indicted on case number 98-CR-I-05-

0161. He pled guilty to one count of rape, in violation of R.C. 2907.02, a felony of the

first degree.

        {¶4}     On October 22, 1998, the Delaware County Prosecutor filed a Bill of

Information in case number 98-CR-I-10-347, charging Appellant with two counts of

sexual battery in violation of R.C. 2907.03(A)(9).     On October 23, 1998, Appellant

waived his right to be prosecuted by indictment and entered a guilty plea to both counts

as set forth in the Bill of Information.

        {¶5}     On October 23, 1998, the trial court held a sex offender classification

hearing and found Appellant to be a sexual predator. The court also held a sentencing

hearing and imposed four years imprisonment in case number 97-CR-I-12-0473 to run

consecutive to the sentences imposed in case numbers 98-CR-I-05-0161 of eight years

and 98-CR-I-10-0347, also an eight year sentence.
Delaware County, Case Nos. 10-CA-61, 10-CA-62, & 10-CA-63                                 3


        {¶6}   On June 18, 2010, the trial court scheduled a resentencing hearing and

ordered Appellant to be transported for the hearing. The resentencing hearing was held

because the trial court had originally omitted to advise Appellant that he was subject to

five years of mandatory post-release control.

        {¶7}   On July 19, 2010, the trial court held the hearing and imposed the same

original sentence. The trial court also reclassified Appellant as a Tier III sex offender

under the Adam Walsh Act pursuant to R.C. 2950.01 et seq.

        {¶8}   Appellant now appeals the resentencing, raising two Assignments of Error:

        {¶9}   “I.   APPELLANT’S SEXUAL OFFENDER CLASSIFICATION UNDER

THE TIER SYSTEM WAS UNCONSTITUTIONAL AS DETERMINED BY THE OHIO

SUPREME COURT IN STATE V. BODYKE (2010), 128 Ohio St.3d 266, 2010-Ohio-

2424.

        {¶10} “II.   THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

CONSECUTIVE SENTENCES.”

                                             I.

        {¶1}   In his first assignment of error, Appellant argues that the trial court erred

by reclassifying Appellant as a Tier III sex offender during his resentencing on July 19,

2010. Pursuant to State v. Bodyke, 128 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d

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

Appellant is correct.      Appellee concedes that Appellant’s Tier III sex offender

designation needs to be vacated.
Delaware County, Case Nos. 10-CA-61, 10-CA-62, & 10-CA-63                                4


       {¶2}   Appellant’s first assignment of error is sustained and that part of the entry

from which this appeal is taken that reclassified Appellant as a Trier III sex offender is

reversed, and his original status as a sexual predator is reinstated.

                                                II.

       {¶3}   In Appellant’s second assignment of error, he argues that the trial court

erred in sentencing him to consecutive sentences in 1998.

       {¶4}   Appellant’s claims are without merit. The Ohio Supreme Court, in State v.

Fischer, supra, stated that “(1) when a judge fails to impose statutorily mandated post-

release control as part of a defendant's sentence, that part of the sentence that was

void must be set aside, and,

       {¶5}   “(2) defendant's remaining claims, which did not involve a void sentence

or judgment, were barred by res judicata; overruling State v. Bezak, 114 Ohio St.3d 94,

2007-Ohio-3250, 868 N.E.2d 961.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238, 942 N.E.2d 332.

       {¶6}   Accordingly, Appellant is precluded from contesting his consecutive

sentences that were imposed in 1998.

       {¶7}   Appellant’s second assignment of error is overruled.
Delaware County, Case Nos. 10-CA-61, 10-CA-62, & 10-CA-63                             5


       {¶8}   For the foregoing reasons, the judgment of the Delaware County Court of

Common Pleas is reversed with respect to Appellant’s first assignment of error and

Appellant’s original sexual predator classification is reinstated. The second assignment

of error is overruled.


By: Delaney, J.

Farmer, P.J. and

Edwards, J. concur.



                                       HON. PATRICIA A. DELANEY



                                       HON. SHEILA G. FARMER



                                       HON. JULIE A. EDWARDS
[Cite as State v. Mitchell, 2011-Ohio-1958.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                        Plaintiff-Appellee     :
                                               :
                                               :
-vs-                                           :    JUDGMENT ENTRY
                                               :
MARK A. MITCHELL                               :
                                               :
                       Defendant-Appellant     :    Case No. 10-CA-61

                                               :




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Court of Common Pleas is affirmed in part and

reversed in part as to Appellant’s reclassification as a Tier III sex offender and his

original sexual predator classification is reinstated. Costs assessed equally to Appellant

and Appellee.



                                                   _________________________________
                                                   HON. PATRICIA A. DELANEY


                                                   _________________________________
                                                   HON. SHEILA G. FARMER


                                                   _________________________________
                                                   HON. JULIE A. EDWARDS
                IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                              FIFTH APPELLATE DISTRICT

STATE OF OHIO                               :
                                            :
                    Plaintiff-Appellee      :
                                            :
                                            :
-vs-                                        :    JUDGMENT ENTRY
                                            :
MARK A. MITCHELL                            :
                                            :
                   Defendant-Appellant      :    Case No. 10-CA-62
                                            :




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Court of Common Pleas is affirmed in part and

reversed in part as to Appellant’s reclassification as a Tier III sex offender and his

original sexual predator classification is reinstated. Costs assessed equally to Appellant

and Appellee.




                                                _________________________________
                                                HON. PATRICIA A. DELANEY


                                                _________________________________
                                                HON. SHEILA G. FARMER


                                                _________________________________
                                                HON. JULIE A. EDWARDS
                IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                              FIFTH APPELLATE DISTRICT

STATE OF OHIO                               :
                                            :
                    Plaintiff-Appellee      :
                                            :
                                            :
-vs-                                        :    JUDGMENT ENTRY
                                            :
MARK A. MITCHELL                            :
                                            :
                   Defendant-Appellant      :    Case No. 10-CA-63
                                            :




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Court of Common Pleas is affirmed in part and

reversed in part as to Appellant’s reclassification as a Tier III sex offender and his

original sexual predator classification is reinstated. Costs assessed equally to Appellant

and Appellee.




                                                _________________________________
                                                HON. PATRICIA A. DELANEY


                                                _________________________________
                                                HON. SHEILA G. FARMER


                                                _________________________________
                                                HON. JULIE A. EDWARDS
