[Cite as State v. Cottrill, 2012-Ohio-1021.]


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

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 11CA12
                               :
     vs.                       : Released: March 8, 2012
                               :
JAMIE L. COTTRILL,             : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Jamie L. Cottrill, Chillicothe, Ohio, Appellant, pro se.

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

McFarland, J.:

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

Pleas nunc pro tunc re-sentencing and advisement of mandatory five year

post release control entry, issued upon remand. On appeal, Appellant

contends that 1) the trial court erred when it corrected his void sentence by

nunc pro tunc entry, claiming such action was in violation of R.C. 2929.191;

2) the trial court erred when it failed to include the statutory requirements of

R.C. 2929.19 in the judgment entry; 3) the trial court erred by imposing
Pickaway App. No. 11CA12                                                         2


multiple prison sentences, when the offenses were allied offenses of similar

import; and 4) the trial court erred by imposing consecutive sentences.

      {¶2} As the trial court failed to follow our specific order of remand,

which directed the trial court to hold another re-sentencing hearing,

Appellant’s first assignment of error is sustained. Further, in light of our

disposition of Appellant’s first assignment of error, Appellant’s second

assignment of error has been rendered moot. Finally, as Appellant’s third

and fourth 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 reversed

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

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

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

sentence.
Pickaway App. No. 11CA12                                                         3


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).

      {¶4} Appellant filed a timely appeal from this re-sentencing entry,

claiming that the trial court erred by failing to provide him with a full de

novo re-sentencing hearing. After consideration of the issue, this Court

determined that Appellant was properly re-sentenced in accordance with the

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

92, 2010-Ohio-6238, 942 N.E.2d 332. Nevertheless, we remanded the

matter to the trial court for another re-sentencing hearing 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. State v. Cottrill, Pickaway App.

No. 10CA38, 2011-Ohio-2122.
Pickaway App. No. 11CA12                                                          4


       {¶5} On remand, however, the trial court elected not to hold another

re-sentencing hearing and instead simply issued a nunc pro tunc re-

sentencing entry on April 28, 2011, claiming in the entry that it was doing so

as a result of a “scrivener’s error” that had occurred in the original re-

sentencing entry. It is from this nunc pro tunc re-sentencing entry that

Appellant now brings his timely appeal, assigning the following errors for

our review.

                        ASSIGNMENTS OF ERROR

“I.    THE TRIAL COURT ERRED WHEN IT CORRECTED
       DEFENDANT’S VOID SENTENCE BY NUNC PRO TUNC
       ENTRY IN VIOLATION OF O.R.C. §2929.191.

II.    THE TRIAL COURT ERRED WHEN IT FAILED TO INCLUDE
       THE STATUTORY REQUIREMENTS OF OHIO REVISED CODE
       §2929.19 IN APPELLANT’S JUDGMENT ENTRY.

III.   THE TRIAL COURT ERRED BY IMPOSING MULTIPLE PRISON
       SENTENCES WHEN THE OFFENSES WERE ALLIED
       OFFENSES OF SIMILAR IMPORT.

IV.    THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE
       SENTENCES.”

                        ASSIGNMENT OF ERROR I

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

court erred when it corrected his sentence by issuing a nunc pro tunc entry.

The State counters by arguing that the issuance of a nunc pro tunc entry was

proper, relying on our prior reasoning in State v. Qualls, Meigs App. No.
Pickaway App. No. 11CA12                                                        5


10CA8, 2010-Ohio-5316 (affirming a trial court’s issuance of a nunc pro

tunc entry imposing mandatory post release control where the record

indicated the appellant was advised of mandatory post release control at the

sentencing hearing but such language was omitted from the sentencing

entry). For the following reasons, which are different from the specific issue

raised by Appellant, we sustain Appellant’s first assignment of error.

      {¶7} As set forth above, in our previous decision regarding this

matter, State v. Cottrill, supra, at ¶ 9, we remanded the matter to the trial

court “for another sentencing hearing, limited to the proper imposition of a

mandatory five year term of post release control.” (Emphasis added). In

doing so, we noted the language in State v. Fischer, supra, at ¶ 29-30,

acknowledging an appellate court’s authority to correct a defect without

remanding for resentencing. Cottrill at ¶ 10. However, we determined that

“in the interests of due process and in assuring Appellant is afforded a

proper notice of the exact term of his post release control,” that “remanding

the case for re-sentencing [was] the proper procedural route.” Id. The trial

court did not hold a re-sentencing hearing on remand, it simply issued a

nunc pro tunc entry.

      {¶8} “ ‘Absent extraordinary circumstances, such as an intervening

decision by the Supreme Court, an inferior court has no discretion to
Pickaway App. No. 11CA12                                                           6


disregard the mandate of a superior court in a prior appeal in the same case.’

” Allen v. Bennett, Summitt App. No. 25252, 2011-Ohio-1210 at ¶ 12; citing

Nolan v. Nolan (1984), 11 Ohio St.3d 1, 462 N.E.2d 410, paragraph one of

the syllabus. “ ‘[T]he decision of a reviewing court in a case remains the

law of that case on the legal questions involved for all subsequent

proceedings in the case at both the trial and reviewing levels. * * * [T]he

rule is necessary to ensure consistency of results in a case, to avoid endless

litigation by settling the issues, and to preserve the structure of superior and

inferior courts as designed by the Ohio Constitution. In pursuit of these

goals, the doctrine functions to compel trial courts to follow the mandates of

reviewing courts. * * * [T]he trial court is without authority to extend or

vary the mandate given.’ ” (Emphasis added and internal citations omitted.)

Id.; citing Nolan at 3-4; See also, generally, State ex rel. Petro v. Marshall,

Scioto App. No. 05CA3004, 2006-Ohio-5357 at ¶ 31 (“Upon further

proceedings following an appellate decision on the same facts and issue, the

trial court is bound to adhere to the appellate court’s determination of the

applicable law.”); State v. Letts, Montgomery App. No. 17084, 1999 WL

42011 (“* * * trial courts have no discretion to disregard the mandate of a

reviewing court * * *.”).
Pickaway App. No. 11CA12                                                                                  7


         {¶9} Despite the reasoning of State v. Qualls, supra, which affirmed

the trial court’s nunc pro tunc entry issued prior to appellate review, our

remand order directed the trial court to hold another re-sentencing hearing in

order to properly impose post release control. Thus, the reasoning set forth

in Qualls should not have been a source of confusion for the trial court on

remand.1 The trial court, on remand, unilaterally elected not to follow our

instructions on remand directing it to hold a hearing, and instead simply

issued a nunc pro tunc order. As such, the trial court varied the mandate on

remand, and in light of the foregoing, we conclude such action constitutes a

clear abuse of discretion. Thus, Appellant’s first assignment of error is

sustained. Accordingly, the decision of the trial court is reversed and this

matter is remanded for another resentencing hearing limited to the proper

imposition of a mandatory five year term of post release control. As such,

the court below is ordered to follow our mandate herein and not vary from it.

                      ASSIGNMENTS OF ERROR II, III AND IV

         {¶10} In his second assignment of error, Appellant contends that the

trial court erred when it failed to include the statutory requirements of R.C.


1
  We further note that we have certified a conflict to the Supreme Court of Ohio between our decision in
State v. Qualls and State v. Lee, Lucas App. No. L-09-1279, 2010-Ohio-1704, which remains pending at
this time. Because of the uncertainty regarding the holding in Qualls, our order on remand, as noted in the
opinion, was intended to comport with State v. Fischer and its progeny. Admittedly, this area of the law is
ever changing and constantly evolving. That being said, this Court issued a clear mandate on remand that
was not subject to interpretation by the trial court and should have been carried out without variation or
question.
Pickaway App. No. 11CA12                                                          8


2929.19 in the judgment entry. However, in light of our disposition of

Appellant’s first assignment of error, which reversed the trial court’s

issuance of a nunc pro tunc re-sentencing entry, the issue raised under

Appellant’s second assignment of error has been rendered moot.

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

arguments related to the length and nature of his sentence. As we indicated

when faced with similar arguments in Appellant’s initial appeal after his first

re-sentencing hearing, the scope of this appeal is 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 third and fourth assignments of error.

                  JUDGMENT REVERSED AND CAUSE REMANDED.
Pickaway App. No. 11CA12                                                        9


                           JUDGMENT ENTRY

    It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED and that the Appellant recover of Appellee 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, P.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.
