[Cite as State v. Cool, 2011-Ohio-1560.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. Nos.     25135 & 25214

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MICHAEL E. COOL                                      COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE Nos. CR 96 07 1775 (A)
                                                                CR 94 03 0899


                                  DECISION AND JOURNAL ENTRY

Dated: March 31, 2011



        CARR, Judge.

        {¶1}     Appellant, Michael Cool, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms in part and vacates in part.

                                                I.

        {¶2}     Cool was convicted of a number of offenses, including aggravated robbery,

multiple counts of robbery, escape, and felonious assault, among others. Cool was sentenced to

prison. He has appealed and pursued other remedies, including postconviction relief. This Court

affirmed his convictions in State v. Cool (Oct. 1, 1997), 9th Dist. No. 18148, and the denial of

his petition for postconviction relief in State v. Cool (Oct. 13, 1999), 9th Dist. No. 19329. This

Court also affirmed the denial of his motion to withdraw his guilty plea. State v. Cool (Mar. 22,

2000), 9th Dist. No. 19685. Cool was later granted judicial release, which he violated. He then

challenged the trial court’s jurisdiction, claiming that his indictment was defective because it
                                                 2


failed to include the required mens rea. After the trial court denied his motion, this Court

affirmed. State v. Cool, 9th Dist. No. 24518, 2009-Ohio-4333.

       {¶3}    In 2010, Cool moved to be resentenced because of an error in his postrelease

control notification. The trial court denied the motion, but later resentenced him. Cool appealed

to this Court, presenting six assignments of error, five of which raised errors related to his

original plea hearing or the sentencing. This Court affirms in part and vacates in part.

                                                II.

                                 ASSIGNMENT OF ERROR I

       “AS MR. COOL’S ORIGINAL SENTENCE WAS VOID, HIS INITIAL
       DIRECT APPEAL WAS ALSO INVALID. THE INSTANT APPEAL IS MR.
       COOL’S FIRST DIRECT APPEAL FROM A VALID SENTENCE.”

                                ASSIGNMENT OF ERROR II

       “THE TRIAL COURT FAILED TO PROPERLY NOTIFY DEFENDANT OF
       THE MAXIMUM POTENTIAL SENTENCES, INCLUDING POST-RELEASE
       CONTROL, AT THE ORIGINAL PLEA HEARING AND THUS THE TRIAL
       COURT ABUSED ITS DISCRETION IN NOT GRANTING MR. COOL’S
       MOTION TO VACATE GUILTY PLEA IN VIOLATION OF CRIMINAL
       RULES 11 AND 32.1, THE OHIO AND UNITED STATES
       CONSTITUTIONS.”

                                ASSIGNMENT OF ERROR III

       “THE RESENTENCING COURT ERRED BY IMPOSING NON-MINIMUM
       AND CONSECUTIVE SENTENCES IN VIOLATION OF THE DUE PROCESS
       AND EX POST FACTO CLAUSES OF THE UNITED STATES
       CONSTITUTION; FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO
       THE UNITED STATES CONSTITUTION; BLAKELY V. WASHINGTON
       (2204), 542 U.S. 296; UNITED STATES V. BOOKER (2005), U.S. 220.” (sic)

                                ASSIGNMENT OF ERROR IV

       “TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE, IN
       VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
       UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE
       OHIO CONSTITUTION, FOR FAILING TO OBJECT TO THE
       RESENTENCING COURT’S RETROACTIVE APPLICATION OF THE OHIO
       SUPREME COURT’S REMEDY IN STATE V. FOSTER.”
                                                 3


                                 ASSIGNMENT OF ERROR V

       “TRIAL COURT FAILED TO CREDIT MR. COOL CREDIT FOR TIME
       SERVED IN CONCURRENT PRISON TERMS THUS VIOLATING EQUAL
       PROTECTION.”

                                ASSIGNMENT OF ERROR VI

       “THE TRIAL COURT VIOLATED THE APPELLANT’S CONSTITUTIONAL
       RIGHTS WHEN THE COURT FAILED TO INFORM MR. COOL OF HIS
       RIGHTS TO COMPULSORY PROCESS.”

       {¶4}    In his first assignment of error, Cool argues that, because his sentence was void,

this is his first appeal as of his right. His remaining assignments of error flow from this initial

premise. After Cool filed his brief, the Ohio Supreme Court held that an error in postrelease

control notification does not result in a void sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238. In Fischer, the Supreme Court held “that when a judge fails to impose statutorily

mandated postrelease control as part of a defendant’s sentence, that part of the sentence is void

and must be set aside.” (emphasis sic.) Id. at ¶26 (footnote omitted). The new sentencing

hearing that a defendant is entitled to “is limited to proper imposition of postrelease control.” Id.

at ¶29. The Court also held that res judicata “applies to other aspects of the merits of a

conviction, including the determination of guilt and the lawful elements of the ensuing

sentence.” Id. paragraph three of the syllabus. Accordingly, Cool’s sentence was not void, this

is not Cool’s first appeal, and res judicata applies to the errors Cool has raised in this appeal.

Cool’s first assignment of error is overruled.

                               THE RESENTENCING HEARING

       {¶5}    The trial court conducted a new hearing and resentenced Cool. This de novo

resentencing hearing exceeded the scope of the trial court’s jurisdiction, which, according to

Fischer, was limited to correcting the imposition of postrelease control. To the extent the trial
                                                 4


court corrected the imposition of postrelease control, the trial court properly exercised its

jurisdiction, and that portion of the judgment is affirmed. The remainder of the trial court’s

action in resentencing Cool exceeded the trial court’s jurisdiction and is a nullity. Accordingly,

this Court vacates the remainder of the trial court’s judgment, leaving the original sentence

intact.

                          ASSIGNMENTS OF ERROR II THROUGH VI

          {¶6}   Because the trial court was limited to correcting the imposition of postrelease

control, and Cool, “having already had the benefit of one direct appeal, could not raise any and

all claims of error in a second, successive appeal.” Fischer at ¶33. In assignments of error II

through VI, Cool has raised assignments of error that are barred by res judicata. Id. at ¶36.

Accordingly, these assignments or error are overruled.

                                                III.

          {¶7}   Cool’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed in part and vacated in part.

                                                                         Judgment affirmed in part
                                                                              and vacated in part.




          There were reasonable grounds for this appeal.

          We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                5


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT


WHITMORE, J.
CONCURS


BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY


APPEARANCES:

RHONDA L. KOTNIK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
