[Cite as State v. Montgomery, 2017-Ohio-7457.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                       JUDGES:
                                                    Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                          Hon. John W. Wise, J.
                                                    Hon. Earle E. Wise, J.
-vs-
                                                    Case No. 16 CA 0104
ROMAR MONTGOMERY

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                         Criminal Appeal from the Court of Common
                                                 Pleas, Case No. 2006 CR 00512


JUDGMENT:                                        Affirmed



DATE OF JUDGMENT ENTRY:                          September 1, 2017



APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

WILLIAM C. HAYES                                 ERIC J. ALLEN
PROSECUTING ATTORNEY                             ERIC ALLEN LAW CRIMINAL
JENNA E. JOSEPH                                  DEFENSE FIRM
ASSISTANT PROSECUTOR                             4605 Morse Road
20 South Second Street, Fourth Floor             Suite 201
Newark, Ohio 43055                               Gahanna, Ohio 43230
Licking County, Case No. 16 CA 0104                                                      2

Wise, John J.

     {¶1}    Defendant-Appellant Romar Montgomery appeals the decision of the Court

of Common Pleas, Licking County, overruling his motion for resentencing pertaining to

his 2007 felony trafficking conviction. Appellee is the State of Ohio. The relevant facts

leading to this appeal are as follows.

                     Appellant’s 2007 Conviction and Direct Appeal

     {¶2}    On September 22, 2006, appellant was indicted by the Licking County

Grand Jury on one count of trafficking in crack cocaine (a felony of the third degree), one

count of complicity to commit trafficking in crack cocaine (a felony of the second degree),

one count of trafficking in crack cocaine (a felony of the first degree), and one count of

trafficking in cocaine (a felony of the second degree). Appellant appeared before the trial

court on October 3, 2006, with counsel, and entered a plea of not guilty to all four

charges.

     {¶3}    Appellant filed a motion to suppress on February 23, 2007. The motion to

suppress sought to exclude “any evidence seized by police as a result of a warrantless

arrest on September 14, 2006 and any oral statement given by Defendant subsequent

to that arrest.” The motion generally claimed appellant's warrantless arrest was improper.

Appellant did not seek suppression of his statements, oral or written, due to a lack of

Miranda warnings. The trial court held a suppression hearing on February 26, 2007,

following which the motion to suppress was denied.

     {¶4}    On March 20, 2007, the trial court appointed new trial counsel for appellant.

On July 9, 2007, a jury trial commenced. Appellant's appointed counsel made a motion

in limine, or in the alternative, a new suppression hearing to exclude certain statements
Licking County, Case No. 16 CA 0104                                                        3

made by appellant to police due to a lack of Miranda warnings. In the motion in limine,

appellant specifically sought to exclude his written statement. The trial court denied the

motion in limine, and further denied the motion for a new suppression hearing as

untimely.

     {¶5}    After hearing the evidence, the jury found appellant guilty on all counts,

including special findings on each count. The court sentenced appellant as follows:

Count I, three years in prison; Count II, five years in prison; Count III, ten years

mandatory in prison as a major drug offender, plus one additional year in prison; Count

IV, six years in prison. The trial court ordered each count to run consecutively, for a total

prison sentence of twenty-five years. Appellant was granted 311 days jail credit.

     {¶6}    Appellant filed a direct appeal to this Court, raising three Assignments of

Error. On November 2, 2008, we affirmed appellant’s conviction and sentence. See State

v. Montgomery, 5th Dist. Licking 2007 CA 95, 2008-Ohio-6077.

     {¶7}    Appellant thereafter filed a pro se motion to re-open his appeal. We denied

the application on or about May 26, 2009. Appellant thereafter filed a complaint for

mandamus in the Ohio Supreme Court, requesting that the Licking County Appeals Clerk

be ordered to serve him with our May 26, 2009 judgment entry denying his application

to reopen. On September 30, 2009, the Ohio Supreme Court granted dismissal of

appellant's mandamus complaint. See In the State of Ohio, ex rel., Romar Montgomery

v. Licking County Court House c/o Clerk of Courts, 5th District Appellate Division, Case

Number 2009–1336.
Licking County, Case No. 16 CA 0104                                                      4

                         Appellant’s 2010 Habeas Corpus Petition

     {¶8}     Appellant then brought a petition in the United States District Court,

Southern District of Ohio, for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on

July 27, 2010. On July 6, 2011, the federal magistrate recommended dismissal. See

Montgomery v. Jeffreys, S.D. Ohio No. 2:10-CV-626, 2011 WL 2784168. The report and

recommendation were adopted by the district court on August 22, 2011. See

Montgomery v. Jeffreys, S.D. Ohio No. 2:10-CV-626, 2011 WL 3667396. Appellant

thereafter was unsuccessful in obtaining an appeal to the United States Court of Appeals

for the Sixth Circuit.

     {¶9}     The United States Supreme Court, on October 29, 2012, denied appellant’s

petition for a writ of certiorari. See Montgomery v. Buchanan, 568 U.S. 984, 133 S.Ct.

534, 184 L.Ed.2d 350 (2012).

                         Appellant’s 2013 Motion for Resentencing

     {¶10} On January 30, 2013, appellant filed with the trial court a pro se motion for

resentencing and a supplemental pleading for resentencing, alleging his sentence was

void due to the trial court's imposition of an additional one-year sentence enhancement

to his conviction as a major drug offender in Count III. On April 17, 2013, the trial court

denied the motion. Appellant filed an appeal of that decision to this Court. On November

27, 2013, we overruled appellant’s three assigned errors under the doctrine of res

judicata and affirmed the trial court’s decision to deny resentencing. See State v.

Montgomery, 5th Dist. Licking No. 13–CA–39, 2013-Ohio-5287.
Licking County, Case No. 16 CA 0104                                                          5

           Appellant’s 2016 Motion for Resentencing and the Present Appeal

     {¶11} On September 26, 2016, appellant filed with the trial court another motion

for resentencing, raising for the first time the claim that in the original sentencing entry of

July 12, 2007, the trial court had not imposed a postrelease control sanction from a prior

conviction in another case.

     {¶12} Appellant’s motion for resentencing was denied by the trial court on

November 14, 2016.

     {¶13} Appellant filed a notice of appeal on December 13, 2016. He herein raises

the following sole Assignment of Error:

     {¶14} “I. THE JOURNAL ENTRY FILED BY THE TRIAL COURT SENTENCING

THE APPELLANT WITHOUT IMPOSING A SANCTION FOR POST RELEASE

CONTROL IS NOT A FINAL APPEALABLE ORDER.”

                                              I.

     {¶15} In his First Assignment of Error, appellant essentially contends the trial court

erred in failing to find his 2007 sentence void and declining to resentence him on that

basis.

     {¶16} Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding except an appeal from that judgment, any defense or any claimed lack of

due process that was raised or could have been raised by the defendant at the trial,

which resulted in that judgment of conviction, or on an appeal from that judgment. State

v. Howard, 2nd Dist. Montgomery No. 26069, 2014-Ohio-4602, ¶ 9, quoting State v. Perry,

10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
Licking County, Case No. 16 CA 0104                                                       6


     {¶17} The Ohio Supreme Court has recognized: “* * * [I]n the normal course,

sentencing errors are not jurisdictional and do not render a judgment void. * * * But in the

modern era, Ohio law has consistently recognized a narrow, and imperative, exception

to that general rule: a sentence that is not in accordance with statutorily mandated terms

is void.” State v. Fischer, 128 Ohio St.3d 92, 94, 942 N.E.2d 332, 2010–Ohio–6238, ¶

7–¶ 8. Thus, a “void sentence” is not precluded from appellate review by principles of

res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.

State v. Parson, 2nd Dist. Montgomery No. 24641, 2012–Ohio–730, ¶ 8, quoting Fischer,

supra, at paragraph one of the syllabus (internal quotations omitted).

     {¶18} Appellant herein directs us to R.C. 2929.141(A), which states as follows in

pertinent part:

            Upon the conviction of or plea of guilty to a felony by a person on post-

     release control at the time of the commission of the felony, the court may

     terminate the term of post-release control, and the court may do either of the

     following regardless of whether the sentencing court or another court of this

     state imposed the original prison term for which the person is on post-release

     control:

            (1) In addition to any prison term for the new felony, impose a prison

     term for the post-release control violation. ***.

            (2) Impose a sanction under sections 2929.15 to 2929.18 of the

     Revised Code for the violation that shall be served concurrently or

     consecutively, as specified by the court, with any community control

     sanctions for the new felony.
Licking County, Case No. 16 CA 0104                                                        7


     {¶19} We note the General Assembly has chosen the term “may” regarding the

trial court’s actions when sentencing a defendant who is already on postrelease control.

Thus, the possible consequences of the commission of a felony outlined under R.C.

2929.141 are discretionary options of the trial court. See State v. Lane, 3rd Dist. Allen

App. No. 1–10–10, 2010–Ohio–4819, ¶ 15. However, the void-sentence rule of Fischer

was originally limited to “a discrete vein of cases: those in which a court does not properly

impose a statutorily mandated period of postrelease control.” See Fischer at ¶ 31

(emphasis added). Even though the void sentence doctrine has since been somewhat

expanded by the Ohio Supreme Court, the primary expansions have involved a failure

to include mandatory driver's license suspension in the offender's sentence (State v.

Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, paragraph one of the

syllabus), and a failure to include certain mandatory fines in the sentence (State v.

Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, syllabus).

     {¶20} Accordingly, we find no merit in appellant’s attempt to extend the void

sentence rule to the present matter, as the trial court was not under a mandatory

obligation at appellant’s 2007 sentencing in this case to impose a community control

sanction for his prior offense from another case. Therefore, we reject appellant’s

suggestion that the trial court’s silence as to imposing such a sanction at his 2007

sentencing resulted in a void or non-final sentencing entry subject to challenge in the trial

court or from which he can still appeal.

     {¶21} We hold the trial court properly denied appellant’s motion to resentence, on

grounds of res judicata.
Licking County, Case No. 16 CA 0104                                                 8


      {¶22} Accordingly, appellant's sole Assignment of Error is overruled.

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

of Common Pleas, Licking County, Ohio, is affirmed.



By: Wise, John, J.

Gwin, P. J., and

Wise, Earle, J., concur.



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