[Cite as State v. Gresham, 2011-Ohio-2519.]




               Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95240



                                       STATE OF OHIO

                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  GREGORY GRESHAM

                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                            AFFIRMED IN PART, REVERSED
                              IN PART AND REMANDED
                                 Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-411525

       BEFORE: Stewart, P.J., S. Gallagher, J., and Rocco, J.

    RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEY FOR APPELLANT

Edward M. Graham
Edward M. Graham Co., L.P.A.
13363 Madison Avenue
Lakewood, OH 44107


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Kristen L. Sobieski
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113




MELODY J. STEWART, P.J.:
      {¶ 1} Defendant-appellant,     Gregory   Gresham,     appeals    from     a

resentencing ordered as a result of the court’s failure to advise him of

postrelease control during his original sentencing.     His sole complaint on

appeal is that the court erred by imposing sentence for a five-year gun

specification on a charge of involuntary manslaughter, a lesser included

offense of the original charge of aggravated murder.        He argues that a

five-year gun specification could only be imposed for a felony that includes, as

an essential element, purposely or knowingly causing or attempting to cause

the death of or physical harm to another. The state concedes this argument,

as well as pointing out an error not raised by Gresham — that the court

improperly sentenced Gresham on a weapons disability count.

                                       I

      {¶ 2} In   2002,   a   jury   found   Gresham    guilty   of   involuntary

manslaughter (a lesser included offense of the original charge of aggravated

murder), three counts of felonious assault (lesser included offenses of the

original charges of attempted murder), and one count of having a weapon

under disability.   The counts stemmed from a drive-by shooting in which

Gresham fired a gun from the trunk of a car at people on both sides of the

street, killing one and injuring three others.        The manslaughter count

contained one, three, and five-year firearm specifications; the felonious

assault counts contained three and five-year firearm specifications.          The
court imposed an eight-year sentence on the involuntary manslaughter count

and imposed three and five-year terms on the firearm specifications for that

count, to run consecutive to one another and prior and consecutive to the base

sentence.   The court imposed a two-year sentence on one of the felonious

assault charges, to run consecutive to count one.       It imposed a two-year

sentence on each of the remaining counts, to run concurrent with all counts.

All told, the court imposed a total sentence of 18 years.

      {¶ 3} Gresham appealed from his conviction, claiming, among other

things, that the court erred by failing to merge the three and five-year

firearm specifications. We rejected this contention, finding that the five-year

firearm specification arose under R.C. 2941.146, and was therefore imposed

“as an additional prison term” as required by R.C. 2929.14(D)(1)(c) and thus

had to be served consecutive to the three-year firearm specification.       See

State v. Gresham, 8th Dist. No. 81250, 2003-Ohio-744, ¶14.

      {¶ 4} In 2007, Gresham petitioned the court to “vacate” his sentence,

arguing that felonious assault is not a lesser included offense of murder

under State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240.

The court denied the petition. We affirmed, construing Gresham’s motion to

“vacate” as a petition for postconviction relief and finding that his failure to

file it timely deprived the court of jurisdiction to consider it. See State v.

Gresham, 8th Dist. No. 90433, 2008-Ohio-4248, ¶9-11.          We also rejected
Gresham’s argument grounded on the Barnes decision, noting that Barnes

had been decided prior to Gresham’s trial in March 2002, yet he failed to raise

the issue at the time of trial or on direct appeal, so it was barred by res

judicata. Id. at ¶13.

      {¶ 5} In 2009, Gresham filed a motion for resentencing, claiming that

the court improperly imposed postrelease control at the time of sentencing.

The court granted the motion and resentenced Gresham.          It imposed the

same eight-year sentence for involuntary manslaughter, with the three and

five-year firearm specifications to be served consecutive to each other and the

eight-year base sentence. It “set aside” the sentences for felonious assault on

authority of Barnes, and “corrected” the sentence for having a weapon under

disability to 18 months, to be served consecutively to the involuntary

manslaughter count. In total, the court ordered Gresham to serve 17 years

and six months in prison.

                                      II

      {¶ 6} We first address the state’s argument that the court erred by

“setting aside” the felonious assault convictions on grounds that they were

barred by the Ohio Supreme Court’s decision in Barnes.

      {¶ 7} The state did not file a cross-appeal, so it cannot raise claims of

substantive errors that occurred during resentencing as a means of changing
the court’s judgment. See App.R. 3(C)(1). Nevertheless, we can recognize

the existence of plain error, and do so on this record.

      {¶ 8} The court purported to set aside the felonious assault convictions

under authority of Barnes, which held that felonious assault is not a lesser

included offense of attempted murder. Barnes, 94 Ohio St.3d at 26. The

court had no discretion to do so because we rejected the same argument in

Gresham’s appeal from the denial of postconviction relief:

      {¶ 9} “We note that Barnes was decided in January 2002 and

Gresham’s trial began in March 2002. Thus, Gresham had the opportunity

to raise Barnes to the trial court at that time. However, he failed to raise

this issue to the trial court and he failed to raise it in his first appeal in 2002

in Gresham I. It is well established that any claim for postconviction relief

that was or could have been raised on direct appeal is barred from

consideration by the doctrine of res judicata. State v. Perry (1967), 10 Ohio

St.2d 175, 226 N.E.2d 104. Because his claim was not raised at the earliest

possible opportunity, it is barred by res judicata.” Barnes, 2008-Ohio-4248,

at ¶13.

      {¶ 10} Our opinion thus set forth the law of the case and the court had

no discretion to deviate from that law, particularly since our opinion made it

clear that Barnes was not an “intervening” decision.         See Nolan v. Nolan

(1983), 11 Ohio St.3d 1, 462 N.E.2d 410, syllabus (“Absent extraordinary
circumstances, such as an intervening decision by the Supreme Court, an

inferior court has no discretion to disregard the mandate of a superior court

in a prior appeal in the same case.”). In any event, it is plain that vacation of

the felonious assault counts on substantive legal grounds exceeded the scope

of the resentencing as defined by State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332. We therefore recognize the court’s action

as plain error and order that it reinstate Gresham’s convictions on the

felonious assault counts.

                                          III

      {¶ 11} Gresham argues, and the state agrees, that the court improperly

imposed a five-year firearm specification under R.C. 2929.14(D)(1)(c) because

that specification is only available to a felony “that includes, as an essential

element, purposely or knowingly causing or attempting to cause the death of

or   physical   harm   to   another[.]”         He   maintains   that   involuntary

manslaughter contains no element requiring the offender to “purposely or

knowingly” cause the death of another, so the specification cannot apply.

                                          A

      {¶ 12} Before considering the substantive issue on appeal, we must

decide whether the issue is properly before us.         Principles of res judicata

apply to bar in “any proceeding except an appeal from that judgment” an

argument 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.” See State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104,

paragraph nine of the syllabus. In his direct appeal, Gresham raised the

issue of whether the three and five-year firearm specifications should have

merged.   He did not, but could have raised on direct appeal, the issue

relating to the lack of evidence on the culpable mental state for the offense of

involuntary   manslaughter    as   a   predicate   for   the   five-year   firearm

specification under both R.C. 2929.14(D)(1)(c) and 2941.146(A).

      {¶ 13} On its face, Gresham’s argument might appear to raise a

“sentencing” issue, but in reality, he is raising an evidentiary issue.

Although not “offenses,” see State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765,

945 N.E.2d 498, syllabus, sentence enhancements like firearm specifications

must be proven by evidence beyond a reasonable doubt. State v. Gaines, 46

Ohio St.3d 65, 545 N.E.2d 68, syllabus (because the R.C. 2929.71(A) sentence

enhancement for using a firearm in the commission of an offense increases

the punishment beyond the maximum set by the legislature, it must be

proven beyond a reasonable doubt).         Gresham is doing nothing more

than arguing that there was insufficient evidence to prove the mental

element of the R.C. 2929.14(D)(1)(c) and 2941.146(A) enhancements. This

argument could have been raised on direct appeal, so it is barred by res

judicata. Moreover, this case being an appeal from a resentencing for the
sole purpose of imposing postrelease control, a direct appeal from the

resentencing is “limited to issues arising at the resentencing hearing.”

Fischer, at paragraph four of the syllabus. Again, evidentiary issues from

the trial are not   properly before us in this appeal.      We therefore find

Gresham’s claim barred.

                                       B

      {¶ 14} Even had the claim not been barred by res judicata or otherwise

have been beyond the scope of an appeal from a resentencing ordered for the

sole purpose of imposing postrelease control, we would find no merit to

Gresham’s argument in light of our discussion in section II of this opinion.

      {¶ 15} The five-year firearm specification contained in the original

charge was premised on R.C. 2941.146(A), which is imposed “for committing a

felony that includes, as an essential element, purposely or knowingly causing

or attempting to cause the death of or physical harm to another and that was

committed by discharging a firearm from a motor vehicle[.]”                R.C.

2929.14(D)(1)(c) states that if an offender is found guilty of a felony “that

includes, as an essential element, purposely or knowingly causing or

attempting to cause the death of or physical harm to another” and is also

convicted of “a specification of the type described in section 2941.146 of the

Revised Code,” the court, after imposing a prison term on the offender for the
felony “shall impose an additional prison term of five years upon the offender

that shall not be reduced * * *.”

      {¶ 16} The original count of aggravated murder as charged under R.C.

2903.01(A) charged that Gresham “purposely” caused the death of another.

The culpable mental state for involuntary manslaughter, as defined by R.C.

2903.04, is supplied by the predicate offense — as charged here, felonious

assault.   See State v. Wilson, 182 Ohio App.3d 171, 2009-Ohio-1681, 912

N.E.2d 133, at ¶36, citing State v. Campbell (1991), 74 Ohio App.3d 352,

358-359, 598 N.E.2d 1244. The mental state for felonious assault, as defined

in R.C. 2903.11, is “knowingly.” So the jury could only find Gresham guilty

of involuntary manslaughter if he caused the death of another as a proximate

result of committing a felonious assault; that is, while knowingly causing

physical harm to another.

      {¶ 17} We therefore find for purposes of R.C. 2941.146(A) and R.C.

2929.14(D)(1)(c) that Gresham was found guilty of a felony (involuntary

manslaughter) that included as an essential element that he knowingly

caused physical harm to another (felonious assault) and that he committed

these acts by discharging a firearm from a motor vehicle. It follows that the

court did not err by imposing the five-year sentence enhancement. See State

v. Beauford, 10th Dist. No. 01AP-1166, 2002-Ohio-2016. We therefore reject

the state’s concession on this issue.
                                       IV

      {¶ 18} Finally, the state offers another concession — that the sentence

for the weapons under disability count exceeded the applicable maximum

sentence available at the time that Gresham committed the offense. If this

is so, the sentence would be an illegal sentence and thus void, taking it within

the ambit of plain error.

      {¶ 19} The statute that applies to a criminal offender is the one in effect

at the time of the commission of the offense. State v. Williams, 103 Ohio

St.3d 112, 2004-Ohio-818, 814 N.E.2d 818, syllabus. Gresham committed the

weapons disability offense in July 2001, and the version of R.C. 2923.13(C) in

effect at that time made the offense a felony of the fifth degree (the statute

was amended in 2004 to make a violation of R.C. 2923.13 a third degree

felony). Fifth degree felonies were, and still are, punishable by prison terms

not to exceed 12 months. See R.C. 2929.14(A)(5).

      {¶ 20} The court sentenced Gresham to 18 months in prison on the

weapons under disability count. This sentence thus exceeded the applicable

statutory maximum and was illegal, rendering it void. Fischer, 128 Ohio

St.3d at ¶8; State v. Beasley (1984), 14 Ohio St.3d 74, 75, 471 N.E.2d 774.

We therefore remand to the court for resentencing on the having weapons

under disability count.
       {¶ 21} This cause is affirmed in part, reversed in part and remanded for

further proceedings consistent with this opinion.

       It is ordered that the parties bear their own 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution.         The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.    Case remanded to

the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR
