[Cite as State v. Cottrill , 2011-Ohio-2122.]


                        IN THE COURT OF APPEALS OF OHIO
                           FOURTH APPELLATE DISTRICT
                               PICKAWAY COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 10CA38
                               :
     vs.                       : Released: April 26, 2011
                               :
JAMIE L. COTTRILL,             : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Nickolas D. Owen, Kingsley Law Office, Circleville, Ohio, for Appellant.

Judy C. Wolford, Pickaway County Prosecuting Attorney, Circleville, Ohio,
for Appellee.
_____________________________________________________________

McFarland, J.:

         {¶1} This is an appeal from an Pickaway County Court of Common

Pleas judgment entry, issued after holding a re-sentencing hearing in order to

properly impose a mandatory five-year term of post release control. On

appeal, Appellant contends that 1) the trial court erred as a matter of law by

failing to provide him with a full de novo re-sentencing hearing, where it

sought to properly impose post-release control; 2) the trial court erred as a

matter of law when it failed to sentence him to minimum, concurrent

sentences, where the trier of fact made none of the findings of fact required
Pickaway App. No. 10CA38                                                          2


under R.C. 2929.14(B) and (E); and 3) his conviction should be reversed as

his trial counsel was ineffective as a result of falling asleep numerous times

during the course of the trial.

      {¶2} Although Appellant was properly re-sentenced in accordance

with the recent Supreme Court holding in State v. Fischer, 128 Ohio St.3d

92, 2010-Ohio-6238, 942 N.E.2d 332, his first assignment of error is

nonetheless sustained as a result of the trial court’s failure to properly

include a mandatory five year term of post release control in the re-

sentencing entry. As such, the decision of the trial court, with respect to its

imposition of post release control, is reversed and remanded for further

proceedings consistent with this opinion. Further, as Appellant’s second and

third assignments of error raise arguments unrelated to the re-sentencing

hearing, they are barred by the doctrine of res judicata and we therefore

reject them. Accordingly, the decision of the trial court is affirmed in part,

reversed in part, and remanded.

                                    FACTS

      {¶3} On June 8, 2004, Appellant was convicted of aggravated robbery

with a gun specification, theft, and kidnapping with a gun specification. On

that day, the trial court sentenced him to an aggregate prison term of

seventeen years. Although a transcript of the sentencing hearing was not
Pickaway App. No. 10CA38                                                        3


made a part of this record on appeal, the trial court’s sentencing entry, dated

June 11, 2004, does not include post release control as part of Appellant’s

sentence.

      {¶4} After filing multiple unsuccessful motions for post conviction

relief, on August 26, 2010, Appellant filed a motion for de novo sentencing.

In response, on October 6, 2010, a re-sentencing hearing was held. At the

hearing, the trial court made clear to Appellant that the only purpose of the

hearing was to impose post release control. During the hearing, the trial

court notified Appellant that he “will be subject to mandatory post release

control for five years.” However, the “Re-sentencing Entry And

Advisement of Mandatory Five (5)Year Post Release Control” filed on

October 8, 2010, stated that Appellant “shall be subject to a MANDATORY

period of post release control of up to FIVE (5) YEARS.” (Emphasis added).

It is from this entry that Appellant brings his timely appeal, assigning the

following errors for our review.

                        ASSIGNMENTS OF ERROR

“I.   THE TRIAL COURT ERRED AS A MATTER OF LAW BY
      FAILING TO PROVIDE DEFENDANT WITH A FULL DE NOVO
      RE-SENTENCING HEARING, WHERE IT SOUGHT TO
      CORRECT A FAILURE TO PROPERLY IMPOSE POST-
      RELEASE CONTROL AND WHERE DEFENDANT WAS
      ORIGINALLY SENTENCED PRIOR TO JULY 11, 2006, THE
      EFFECTIVE DATE OF R.C. §2929.191.
Pickaway App. No. 10CA38                                                          4


II.    THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
       FAILED TO SENTENCE DEFENDANT TO MINIMUM,
       CONCURRENT SENTENCES, WHERE THE TRIER OF FACT
       MADE NONE OF THE FINDINGS OF FACT REQUIRED UNDER
       §2929.14(B) AND (E).

III.   DEFENDANT’S CONVICTION SHOULD BE REVERSED
       BECAUSE HIS TRIAL COUNSEL WAS INEFFECTIVE
       BECAUSE COUNSEL FELL ASLEEP NUMEROUS TIMES
       DURING THE COURSE OF THE TRIAL.”

                        ASSIGNMENT OF ERROR I

       {¶5} In his first assignment of error, Appellant contends that the trial

court erred as a matter of law by failing to provide him with a full de novo

re-sentencing hearing, where it sought to correct a failure to properly impose

post release control and where he was originally sentenced prior to July 11,

2006, the effective date of R.C. 2929.191. The State contends Appellant

was properly re-sentenced in accordance with the Supreme Court of Ohio’s

recent decision in State v. Fischer, supra.

       {¶6} By enacting R.C. 2929.191, effective date July 11, 2006, the

legislature promulgated a statutory remedy for trial courts to use to correct

an error in imposing post release control. State v. Singleton, 124 Ohio St.3d

173, 2009-Ohio-6434, 920 N.E.2d 958, at ¶ 1. In Singleton, the Supreme

Court of Ohio reasoned as follows with respect to the retroactive application

of R.C. 2929.191:
Pickaway App. No. 10CA38                                                           5


“for sentences imposed prior to July 11, 2006, in which a trial court failed to
properly impose postrelease control, trial courts shall conduct a de novo
sentencing hearing in accordance with decisions of the Supreme Court of
Ohio. However, for criminal sentences imposed on and after July 11, 2006,
in which a trial court failed to properly impose postrelease control, trial
courts shall apply the procedures set forth in R.C. 2929.191.” Singleton at ¶
1.

Thus, Singleton holds that R.C. 2929.191 applies only prospectively and

essentially provides that if a trial court fails to properly impose post release

control, after a hearing, it may issue a nunc pro tunc entry correcting the

error.

         {¶7} Appellant herein was sentenced prior to the effective date of

R.C. 2929.191. Thus, the reasoning set forth in Singleton would seem to

dictate that the trial court conduct a de novo sentencing hearing. However,

the Supreme Court of Ohio recently modified its position on the type of

hearing that must be conducted to correct an error related to the imposition

of post release control. In State v. Fischer, supra, at paragraphs one and two

of the syllabus, the Court held that a sentence that does not include the

statutorily mandated term of post release control is void and that the new

sentencing hearing to which an offender is entitled under State v. Bezak, 114

Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, is limited to the proper

imposition of post release control. In further explaining its holding, the

Fischer Court stated that “when a judge fails to impose statutorily mandated
Pickaway App. No. 10CA38                                                       6


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

sentence that is void and must be set aside. Neither the Constitution nor

common sense commands anything more.” Fischer at ¶ 26.

      {¶8} Appellant contends that as he was re-sentenced before Fischer

was decided, this Court should not retroactively apply the reasoning of

Fischer, and instead should apply the reasoning of Singleton, which would

have required a de novo re-sentencing hearing. In State v. Vance, Meigs

App. No. 10CA4, 2011-Ohio-780, we recently addressed a similar situation,

reasoning as follows:

“ ‘[T]he general rule is that a decision of a court of supreme jurisdiction
overruling a former decision is retrospective in its operation, and the effect is
not that the former was bad law, but that it never was the law. The one
general exception to this rule is where contractual rights have arisen or
vested rights have been acquired under the prior decision.’ Peerless Elec.
Co. v. Bowers (1955), 164 Ohio St. 209, 209, 129 N.E.2d 467 (per curiam).
A vested right is one that ‘so completely and definitely belongs to a person
that it cannot be impaired or taken away without the person's consent.’
Harden v. Ohio Atty. Gen., 101 Ohio St.3d 137, 2004-Ohio-382, 802 N.E.2d
1112, at ¶ 9, quoting Black's Law Dictionary (7th Ed.1999) 1324. The
Fischer Court did not declare that its decision was only prospective in
operation.” Vance at ¶ 10.

As in Vance, this case does not involve contractual rights, and Appellant has

no vested right in a de novo sentencing hearing for the correct portions of his

original sentence. As such, we apply Fischer in this case.

      {¶9} Here, Appellant was conveyed from prison to attend a re-

sentencing hearing, where the trial court notified him that he was subject to a
Pickaway App. No. 10CA38                                                       7


mandatory five year term of post release control. As such, we conclude that

the trial court’s actions were in accordance with State v. Fischer, supra.

However, as indicated above, the re-sentencing entry issued by the trial court

stated Appellant “shall be subject to a MANDATORY period of post release

control of up to FIVE (5) YEARS.” Appellant was subject to a five year

term of post release control, not “up to” a five year term. Thus, we must

remand this matter to the trial court for another re-sentencing hearing,

limited to the proper imposition of a mandatory five year term of post

release control.

      {¶10} We are mindful of the language in State v. Fischer wherein the

Supreme Court of Ohio acknowledges an appellate court’s authority to

correct a defect in a sentence without remanding for resentencing. Fischer

at ¶29-30. However, in the interests of due process and in assuring

Appellant is afforded proper notice of the exact term of his post release

control, we conclude that remanding the case for re-sentencing is the proper

procedural route.

                    ASSIGNMENTS OF ERROR II AND III

      {¶11} Appellant’s second and third assignments of error present

arguments related to the length and nature of his sentence, and the

effectiveness of his trial counsel. However, the scope of this appeal is
Pickaway App. No. 10CA38                                                       8


limited to issues arising at the re-sentencing hearing, which we have already

addressed. State v. Fischer, at paragraph four of the syllabus. Res judicata

applies to all other aspects of the merits of the conviction, including the

determination of guilt and the lawful elements of the ensuing sentence.

Fischer at paragraph three of the syllabus. Thus, the only aspect of

Appellant’s new sentence he can challenge in this direct appeal is the

addition of post release control. Accordingly, we reject Appellant’s second

and third assignments of error.

                              JUDGMENT AFFIRMED IN PART,
                REVERSED IN PART AND THE CAUSE REMANDED.
Pickaway App. No. 10CA38                                                        9


                           JUDGMENT ENTRY
     It is ordered that the JUDGMENT BE AFFIRMED IN PART,
REVERSED IN PART AND THE CAUSE REMANDED and that the
Appellee and the Appellant split the costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing
the Pickaway County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Abele, J. and Kline, J.: Concur in Judgment and Opinion.

                                        For the Court,

                                        BY: _________________________
                                            Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
