[Cite as State v. Griffin, 2011-Ohio-1462.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 1-10-27

        v.

TOBIAS B. GRIFFIN,                                         OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2002 0493

                                       Judgment Affirmed

                             Date of Decision: March 28, 2011




APPEARANCES:

        Keith H. Schierloh for Appellant

        Jana E. Emerick for Appellee
Case No. 1-10-27



WILLAMOWSKI, J.

        {¶1} Defendant-Appellant, Tobias Griffin (“Griffin”), appeals the judgment

of the Allen County Court of Common Pleas after he was granted a new

sentencing hearing because of an error in informing him of postrelease control for

his 2003 felonious assault convictions. In this appeal, Griffin claims that the trial

court lacked jurisdiction to sentence him seven years after his original conviction;

that the State denied his rights to discovery; that the trial court erred in denying his

2003 motion for a new trial; and that his counsel was ineffective. For the reasons

set forth below, the judgment is affirmed.

        {¶2} In April of 2003, after a two-day bench trial, Griffin was found guilty

of seven counts of felonious assault, each with a firearm specification, as well as

one count of improperly discharging a firearm into a habitation. On April 29,

2003, he was sentenced to twenty-seven years1 in prison.

        {¶3} On May 13, 2003, Griffin filed a motion for a new trial; the trial court

denied Griffin’s motion.              Griffin then filed a direct appeal, raising three

assignments of error. See State v. Griffin, 3d Dist. No. 1-03-31, 2004-Ohio-287

(or, hereinafter, “Griffin I”.) This Court found no merit to any of the claims and

we affirmed the judgment of conviction and sentence. Id. Several discretionary


1
 This sentence was also ordered to be served consecutively to the three-year sentence that was imposed for
Griffin’s drug-related felony conviction in Allen County Common Pleas Case No. CR2002 0208.


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Case No. 1-10-27



appeals to the Supreme Court of Ohio were denied. See State v. Griffin, 102 Ohio

St.3d 1483, 2004-Ohio-3069, 810 N.E.2d 967; State v. Griffin, 107 Ohio St.3d

1684, 2005-Ohio-6840, 832 N.E.2d 404; State v. Griffin, 108 Ohio St.3d 1441,

2006-Ohio-421, 842 N.E.2d 65.

       {¶4} On February 10, 2010, Griffin filed a motion for resentencing,

claiming that his original sentence was “void” because it did not properly comply

with the instructions pertaining to postrelease control pursuant to State v. Bezak,

114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961 and other related cases.

Griffin’s judgment entry of sentencing, filed April 30, 2003, stated that he would

be subject to a period of postrelease control “pursuant to law (up to 3 years)”

instead of a definitive mandatory period of “three years” of postrelease control.

However, we note that at the actual sentencing hearing the trial court correctly

stated that “you will be subject to post release control of three (3) years.” (Trial

Tr., Vol. 2, pp. 361-62.)

       {¶5} As a result, a new sentencing hearing was held on March 3, 2010. The

trial court sentenced Griffin to the same sentence as previously imposed and

advised him that he was subject to three years of mandatory postrelease control.

Griffin now appeals this decision, raising the following four assignments of error.




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Case No. 1-10-27



                            First Assignment of Error

       The common pleas court lacked jurisdiction to sentence [Griffin]
       due to an unreasonable delay.

                           Second Assignment of Error

       [Griffin] was not afforded his constitutional right to discovery
       due to specific discovery and reports being denied to [Griffin] by
       the State of Ohio.

                            Third Assignment of Error

       The trial court’s determination in denying [Griffin’s] motion for
       a new trial was an abuse of discretion of the trial court judge.

                           Fourth Assignment of Error

       [Griffin’s] counsel was ineffective due to the lack of investigatory
       [sic] and witness preparation.

       {¶6} Griffin now argues that, as a result of his resentencing in March of

2010, all of the post-sentence actions after the date of April 2003 must be

considered “void and null.” Therefore, because he claims that both his initial

sentence and all following actions are “void,” he believes that there is the need to

review all potential appealable issues. In his first assignment of error, Griffin

argues that the seven-year delay in imposing his sentence at the “resentencing”

hearing in March 2010, after his conviction in 2003, was unreasonable and

rendered the trial court without jurisdiction to impose a sentence. Griffin’s next

three assignments of error are identical to the assignments of error that Griffin first


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Case No. 1-10-27



raised in his initial appeal and that we have previously addressed. See Griffin I.

Although most of the issues that Griffin raises in this appeal have previously been

addressed, he contends that he is entitled to a “new” review of all of these matters

because his previous sentence was “void” due to an inaccurate sentencing

statement concerning postrelease control.

         {¶7} However, a recent decision by the Supreme Court of Ohio has

clarified the extent of review that is applicable after a new sentencing hearing2 is

held because the trial court did not properly impose postrelease control. See State

v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, --- N.E.2d ---. The Ohio Supreme

Court abrogated portions of State v. Bezak and held that “the new sentencing

hearing to which an offender is entitled under Bezak is limited to proper

imposition of postrelease control.”                Id. at ¶29. Furthermore, the scope of an

appeal arising from the limited resentencing hearing “is limited to issues arising at

the resentencing hearing.” Id. at paragraph four of the syllabus. The doctrine of

“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.” Id. at

paragraph three of the syllabus.


2
  Since the trial court properly imposed postrelease control at the original sentencing hearing, which was
then misstated in the Judgment Entry of Sentencing, one must ask whether Griffin actually needed to be
resentenced or whether a Nunc Pro Tunc Judgment Entry of Sentencing, correctly reflecting the properly
imposed postrelease control, as stated in open court, would have been sufficient in this particular case. See
Crim.R. 36.

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Case No. 1-10-27



        {¶8} When postrelease control is not properly included in a sentence for a

particular offense, the sentence for that offense is void, but “only the offending

portion of the sentence is subject to review and correction.” Id. at ¶27. The new

sentencing hearing is limited to the proper imposition of postrelease control. Id. at

¶29. The scope of relief is limited and does not permit a reexamination of all the

perceived errors at trial or in other proceedings. Id. at ¶25, citing Hill v. United

States (1962), 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417.

        {¶9} Griffin’s sentencing hearing to correct the portion of the sentence

pertaining to postrelease control cannot be used as a vehicle to reopen all other

aspects of his case.           Therefore, any issues raised on appeal from Griffin’s

resentencing hearing must be limited to the subject of postrelease control.

Griffin’s first assignment of error is not related to postrelease control, so it is not

open for review.3 The remaining three issues are also not related to postrelease

control and are further barred by res judicata, as these are the identical issues that

Griffin raised in his previous appeal. See Griffin I.                 Based on the above and on

the authority of State v. Fischer, supra, Griffin’s four assignments are overruled.




3
  Moreover, although we are not required to address this assignment of error, other courts have reviewed
the identical issue and found Griffin’s arguments to be without merit. See, e.g., State ex rel. Cruzado v.
Zaleski, 111 Ohio St.3d 353, 856 N.E.2d 263, 2006-Ohio-5795, ¶19; 2006-Ohio-5795, ¶19; State v. Spears,
9th Dist. No. 24953, 2010-Ohio-1965, ¶19.

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Case No. 1-10-27



       {¶10} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS, P.J., concurs in Judgment Only.

SHAW, J., concurs.

/jlr




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