[Cite as State v. Amstutz, 2012-Ohio-6079.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   Sheila G. Farmer, P.J.
                                               :   John W. Wise, J.
                         Plaintiff-Appellee    :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 2012-CA-00097
                                               :
                                               :
RICKY AMSTUTZ                                  :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Stark County
                                                    Court of Common Pleas Case No.
                                                    1998-CR-1060

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             December 17, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO                                     EUGENE CAZANTZES
Prosecuting Attorney                                101 Central Plaza, South
Stark County, Ohio                                  1000 Bank One Building
                                                    Canton, Ohio 44702
BY: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South
Suite – 510
Canton, Ohio 44702-1413
[Cite as State v. Amstutz, 2012-Ohio-6079.]


Edwards, J.

        {¶1}     Appellant, Ricky Amstutz, appeals a judgment of the Stark County

Common Pleas Court resentencing him to add a mandatory term of five years

postrelease control. Appellee is the State of Ohio.

                                    STATEMENT OF FACTS AND CASE

        {¶2}     In 1999, appellant was convicted of one count of involuntary manslaughter

with a firearm specification and one count of weapons under disability, pursuant to a

plea of guilty. He was sentenced to fourteen years incarceration. He was informed at

his sentencing hearing that upon his release from prison, he would be subject to a

mandatory period of postrelease control of up to five years.            His conviction and

sentence was affirmed by this Court. State v. Amstutz, 5th Dist. No. 1999CA00104,

1999 WL 1071966 (November 8, 1999).

        {¶3}     On April 16, 2012, prior to his scheduled release on August 31, 2012, the

court scheduled a video conference with appellant at the prison in order to resentence

him to properly impose postrelease control. Appellant was represented by counsel.

However, appellant was in the medical wing conference room and due to a problem with

the telephone hookup, he was unable to confer with his counsel, who was located in

Stark County. The court proceeded with the hearing and allowed appellant to state his

objections to his sentence on the record. The court noted the objections and sentenced

him to a mandatory term of five years postrelease control.

        {¶4}     Appellant filed an appeal, assigning a single error:

        {¶5}     “APPELLANT WAS DENIED HIS RIGHT TO COUNSEL AT THE RE-

SENTENCING HEARING.”
Stark County App. Case No. 2012-CA-00097                                                   3


       {¶6}   Appellant argues that he was not able to confer with his appointed counsel

prior to the video conference hearing.

       {¶7}   This Court has previously held that a criminal defendant does not have the

right to counsel at a resentencing hearing in which the sole purpose is to properly

impose a term of postrelease control:

       {¶8}   “In the case at bar, the error made by the trial court was that the court

failed to inform appellant in person during his original sentencing hearing that he was

subject to a mandatory five year period of post-release control and to misstate in the

original sentencing entry that appellant would be on mandatory post release control for

a period ‘up to’ five years.

       {¶9}   “As a result, because the trial court's sentencing did not conform to

statutory mandates it is void. See State v. Bloomer, 122 Ohio St.3d 200, 909 N.E.2d

1254, 2009–Ohio–2462, ¶ 68; see, also, State v. Jordan, 104 Ohio St.3d 21, 817 N.E.2d

864, 2004–Ohio–6085; State v. Bezak, 114 Ohio St.3d 94, 868 N.E.2d 961, 2007–

Ohio–3250; State v. Simpkins, 117 Ohio St.3d 420, 884 N.E.2d 568, 2008–Ohio–1197;

State v. Boswell, 121 Ohio St.3d 575, 906 N.E.2d 422, 2009–Ohio–1577.

       {¶10} “However, as noted in our disposition of appellant's First Assignment of

Error, supra, the Ohio Supreme Court in State v. Fischer, Slip Opinion No. 2010–Ohio–

6238, limited its holding in Bezak and concluded that the defendant is only entitled to a

hearing for the proper imposition of post release control.

       {¶11} “A ‘critical stage’ only exists in situations where there is a potential risk of

substantial prejudice to a defendant's rights and counsel is required to avoid that result;

in other words, counsel must be present ‘where counsel's absence might derogate from
Stark County App. Case No. 2012-CA-00097                                                4

the accused's right to a fair trial.’” United States v. Wade (1967), 388 U.S. 218, 226, 87

S.Ct. 1926, 18 L.Ed.2d 1149.

      {¶12} “In the case at bar, appellant was convicted after a jury trial. Appellant was

represented by counsel at his original sentencing hearing in 2001. Appellant was

subject to a mandatory period of post release control. Both the mandatory nature and

the length of appellant's post release control are governed by statute. See, R.C.

2967.28. Accordingly, no discretion was involved in the trial court's October 25, 2010 re-

sentencing hearing concerning appellant's post release control obligation.

      {¶13} “The court in Fisher, supra, further held that ‘[a]lthough the doctrine of res

judicata does not preclude review of a void sentence, 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. Accordingly, appellant could not raise new issues, or

issues he had previously raised on his direct appeal. State v. Fischer, supra; See also,

State v. Ketterer, 126 Ohio St.3d 448, 935 N.E.2d 9, 2010–Ohio–3831.

      {¶14} “‘Consequently, the sentencing hearing was ... not a de novo hearing but a

ministerial act to create a new journal entry with the addition of the corrected language

noting that post-release control was mandatory.’ State v. Davis, Washington App. No.

10CA9, 2010–Ohio–5294 at ¶ 32.

      {¶15} “In the case at bar appellant did not face a substantial risk of prejudice

because the court was limited to informing him in person concerning the imposition of

five years mandatory post-release control and adding the words ‘mandatory’ to the

imposition of post release control as set forth in its Judgment Entry, which it was

required to do in the first place, i.e., the court did not have the authority to make any
Stark County App. Case No. 2012-CA-00097                                             5

other substantive changes to the already-imposed sentence.” State v. Griffis, 5th Dist.

No. CT2010–57, 2011-Ohio-2955, ¶25-32.

      {¶16} In the instant case, as in Griffis, the court was limited to informing

appellant in person of the addition of the words “mandatory” to the imposition of

postrelease control. The trial court had no authority to make any other changes to the

sentence, and appellant was therefore not entitled to be represented by counsel.

      {¶17} The assignment of error is overruled.

      {¶18} The judgment of the Stark County Common Pleas Court is affirmed.




By: Edwards, J.

Farmer, P.J. and

Wise, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                              JUDGES




JAE/r1114
[Cite as State v. Amstutz, 2012-Ohio-6079.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
RICKY AMSTUTZ                                     :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2012-CA-00097




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

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
