[Cite as State v. Miller, 2011-Ohio-2828.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

STATE OF OHIO                                        :
                                                     :     Appellate Case No. 23965
        Plaintiff-Appellee                           :
                                                     :     Trial Court Case No. 02-CR-1916
v.                                                   :
                                                     :     (Criminal Appeal from
SUMPTER A. MILLER                                    :     (Common Pleas Court)
                                                     :
        Defendant-Appellant                  :
                                                     :

                                                 ...........

                                                 OPINION

                                Rendered on the 10th day of June, 2011.

                                                 ...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. #0072135, 424 Patterson Road, Dayton, Ohio 45419
      Attorney for Defendant-Appellant

                                                          .............

BROGAN, J.

        {¶ 1} On May 17, 2004, Sumpter Miller was convicted of possession of cocaine with

a major-drug-offender specification and possession of marijuana. Miller was sentenced to an

aggregate term of twelve years in prison, including a two-year term imposed on the

major-drug-offender specification.               We affirmed his conviction in State v. Miller,
                                                                                               2


Montgomery App. No. 20513, 2005-Ohio-4203.

        {¶ 2} Miller then applied to reopen his appeal so he could challenge the

constitutionality of the major-drug-offender specification in light of the intervening Ohio

Supreme Court decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In denying the

application, this court cited the sixth syllabus of Foster.         “R.C. 2929.14(D)(2)(b) and

(D)(3)(b) are capable of being severed. After the severance, judicial fact-finding is not

required before imposition of additional penalties for repeat-violent-offender and

major-drug-offender specifications * * * ” State v. Miller (Jan. 4, 2007), C.A. Case No. 20513.

 The Ohio Supreme Court declined review.

        {¶ 3} Miller served the first part of his state sentence in federal custody. Just before

he was transferred to the Ohio prison system, he asked the trial court to reduce the original

sentence by either dropping the two-year term on the specification or giving him credit against

his sentence for good behavior. (Motion, Dec. 17, 2008). The trial court denied the motion.

        {¶ 4} On March 10, 2010, Miller was brought back to Common Pleas Court from the

institution for re-sentencing to correct an error in the original judgment entry as to post-release

control. The trial court imposed the same sentence as before, but this time correctly advised

him of the mandatory nature and duration of post-release control. This appeal followed.

        {¶ 5} In a single assignment, Miller again argues that the trial court committed

reversible error when it implemented a two-year sentence enhancement pursuant to the

major-drug-offender specification. Miller again cites us to the Ohio Supreme Court’s holding

in State v. Foster, supra.

        {¶ 6} The State argues that Miller’s appeal should be limited to the issues arising
                                                                                              3


from the March 10, 2010 re-sentencing which resulted in the trial court’s imposing a

mandatory term of post-release control upon Miller.

       {¶ 7} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the Supreme Court of

Ohio held the following:

       {¶ 8} “A sentence that does not include the statutorily mandated term of post-release

control is void, 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. The new sentencing hearing

to which an offender is entitled under State v. Bezak is limited to proper imposition of

postrelease control. (State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961,

syllabus, modified.) Although the doctrine of res judicata does not preclude review of a void

sentence, 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. The scope of an

appeal from a resentencing hearing in which a mandatory term of postrelease control is

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

       {¶ 9} Miller’s claim of error is barred by the doctrine of res judicata. Even if it were

not, Miller’s claim that he was entitled to a jury trial on the major-drug-offender specification

has no merit.    See State v. Hunter, 123 Ohio St.3d 164, 2009-Ohio-4147, cert. denied,

130 S.Ct. 1888 (2010).

       {¶ 10} Miller’s assignment of error is Overruled.         The trial court’s judgment is

Affirmed.

                                                   .............

FAIN and HALL, JJ., concur.
                                                                                4


(Hon. James A. Brogan, Retired from the Second District Court of Appeal, sitting by
assignment of the Chief Justice of the Supreme Court of Ohio).



Copies mailed to:

Mathias H. Heck, Jr.
Carley J. Ingram
Jay A. Adams
Hon. Frances E. McGee
