[Cite as State v. Mathews, 2018-Ohio-3839.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. John W. Wise, P. J.
        Plaintiff-Appellee                       Hon. W. Scott Gwin, J.
                                                 Hon. Earle E. Wise, Jr., J.
-vs-
                                                 Case No. 18 CA 50
DANA MATHEWS

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 2004 CR 0531


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        September 24, 2018



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

GARY BISHOP                                   DANA L.MATHEWS
PROSECUTING ATTORNEY                          PRO SE
JOSEPH C. SNYDER                              940 Marion-Williamsport
ASSISTANT PROSECUTOR                          Marion, Ohio 43302
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 18 CA 50                                                       2

Wise, John, P. J.

      {¶1}   Appellant Dana Mathews appeals from his June 1, 2018 judgment entry of

resentencing in the Court of Common Pleas, Richland County, stemming from his 2004

aggravated murder conviction. Appellee is the State of Ohio. The relevant facts leading

to this appeal are as follows.

      {¶2}   In September 2004, appellant was convicted in the Richland County Court

of Common Pleas of aggravated murder with a firearm specification, attempted murder

with a firearm specification, felonious assault with a firearm specification, having

weapons under disability, and illegal possession of a firearm in a liquor premises. He

was sentenced to an aggregate prison term of thirty years to life.

      {¶3}   Appellant timely filed an appeal to this Court. We affirmed the judgment of

conviction and sentence on February 8, 2006. State v. Mathews, 5th Dist. No 2004–CA–

80, no official citation available. The Supreme Court of Ohio declined to accept

appellant’s pro se appeal on June 7, 2006, under case number 2006-0555.

      {¶4}   On or about May 3, 2006, appellant filed a motion with this Court to reopen

his appeal, which we subsequently denied.

      {¶5}   In August 2017, appellant filed a motion in the trial court to vacate or waive

payment of court costs. On October 10, 2017, the trial court denied the motion without a

hearing. Appellant thereupon filed an appeal to this Court. Upon review, we concluded

his argument was barred by the doctrine of res judicata. See State v. Mathews, 5th Dist.

Richland No. 17CA92, 2018-Ohio-353, ¶13 (issued January 26, 2018).

      {¶6}   On February 21, 2018, appellant filed a pro se motion for resentencing in

the trial court. The State filed a response on March 7, 2018.
Richland County, Case No. 18 CA 50                                                     3


      {¶7}   The trial court conducted a hearing on May 31, 2018, at which time

appellant was notified as to post-release control on Count 3. A resentencing entry,

including the written post-release control notification, was issued on June 1, 2018.

      {¶8}   Appellant filed a pro se notice of appeal on June 18, 2018. He herein raises

the following eight Assignments of Error:

      {¶9}   “I. TRIAL COURT’S RULING PERMITTING OTHER ACTS EVIDENCE,

WAS SUCH AN EGREGIOUS VIOLATION OF STATE LAW THAT IT THEREBY

VIOLATED APPELLANT’S 5TH & 14TH AMENDMENT RIGHTS TO DUE PROCESS AND

RESULTED IN A FUNDAMENTALLY UNFAIR TRIAL, IN VIOLATION OF THE U.S.

CONSTITUTION.

      {¶10} “II. APPELLANT WAS DENIED HIS 6TH & 14TH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE OHIO AND

U.S. CONSTITUTIONS.

      {¶11} “III.   WITNESS IN-COURT IDENTIFICATION OF APPELLANT WAS

IMPERMISSIBLY SUGGESTIVE THEREBY VIOLATING APPELLANT’S 5TH & 14TH

AMENDMENT RIGHT TO DUE PROCESS OF LAW IN VIOLATION OF THE U.S.

CONSTITUTION.

      {¶12} “IV. APPELLANT WAS DENIED HIS 6TH & 14TH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE U.S.

CONSTITUTION.

      {¶13} “V. APPELLANT WAS DENIED HIS 6TH & 14TH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE OHIO AND

U.S. CONSTITUTIONS.
Richland County, Case No. 18 CA 50                                                        4


      {¶14} “VI. APPELLANT WAS DENIED HIS 6TH & 14TH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE U.S.

CONSTITUTION.

      {¶15} “VII. APPELLANT WAS DENIED HIS 6TH & 14TH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE U.S.

CONSTITUTION.

      {¶16} “VIII. APPELLANT’S 5TH & 14TH AMENDMENT RIGHT TO DUE PROCESS

WERE [SIC] VIOLATED WHEN HE SUFFERED A CONVICTION THAT WAS NOT

SUPPORTED        BY   SUFFICIENT        EVIDENCE           IN    VIOLATION   OF   THE   U.S.

CONSTITUTION.”



                                 I., II., III., IV., V., VI., VII., VIII.

      {¶17} In his eight Assignments of Error, appellant seeks to raise a number of

issues pertaining to his 2004 trial and conviction, including “other acts” evidence, alleged

ineffective assistance of trial counsel on several grounds, in-court identification by a

witness, and sufficiency of the evidence.

      {¶18} However, “[a] limited resentencing must cover only the imposition of post-

release control and the remainder of the sentence is valid under the principles of res

judicata.” State v. Valentine, 5th Dist. Ashland No. 15-COA-020, 2015-Ohio-5396, ¶ 14;

State v. Franklin, 5th Dist. Stark No. 2017 CA 00170, 2018-Ohio-2904, ¶ 19. In other

words, “[t]he scope of an appeal from a resentencing hearing in which a mandatory term

of post-release control is imposed is limited to issues arising at the resentencing

hearing.” State v. Cottrill, 5th Dist. Licking No. 10–CA–28, 2011–Ohio–4599, ¶ 15,
Richland County, Case No. 18 CA 50                                                      5

quoting State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, paragraph four of the

syllabus.

       {¶19} Accordingly, we reject appellant's present attempt to revisit issues from his

trial that he could have developed in his direct appeal in 2004, as these claims are now

res judicata and are outside of any issues arising at the May 2018 post-release control

resentencing hearing.

       {¶20} Appellant's First, Second, Third, Fourth, Fifth, Sixth, Seventh, and Eighth

Assignments of Error are overruled.

       {¶21} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Richland County, Ohio, is hereby affirmed.



By: Wise, John, P. J.

Gwin, J., and

Wise, Earle, J., concur.



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