[Cite as State v. O'Neal, 2012-Ohio-396.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                       C.A. No.      10CA0140-M

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
WILLIAM B. O'NEAL                                   COURT OF COMMON PLEAS
                                                    COUNTY OF MEDINA, OHIO
        Appellant                                   CASE No.   04-CR-0547

                                 DECISION AND JOURNAL ENTRY

Dated: February 6, 2012



        DICKINSON, Judge.

                                            INTRODUCTION

        {¶1}     William O’Neal pleaded guilty to three counts of kidnapping with firearm

specifications, two counts of felonious assault, one count of carrying a concealed weapon, and

one count of illegal possession of a firearm in a liquor premises. The trial court merged two of

the kidnapping counts with the other kidnapping count and one of the felonious assault counts

with the other felonious assault count and sentenced Mr. O’Neal to 13 years in prison. This

Court reversed his sentence under State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856. After the

trial court resentenced him, Mr. O’Neal appealed, but this Court dismissed the appeal because

the judgment entry did not comply with Rule 32(C) of the Ohio Rules of Criminal Procedure.

Meanwhile, in April 2007, the trial court entered a “Nunc Pro Tunc Judgment Entry.” Mr.

O’Neal appealed from the nunc pro tunc entry, and this Court upheld his sentence. State v.

O’Neal, 9th Dist. No. 07CA0050-M, 2008-Ohio-1325. In 2009, Mr. O’Neal moved to invalidate
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his sentence, arguing that the court had not properly imposed post-release control. The trial

court denied his motion, but this Court reversed, concluding that Mr. O’Neal’s sentence was

void. State v. O’Neal, 9th Dist. No. 09CA0045-M, 2010-Ohio-1252. Before the resentencing

hearing, Mr. O’Neal moved to withdraw his plea. He also moved to dismiss the indictment,

arguing that the trial court had lost jurisdiction because it took too long to impose a valid

sentence. The trial court denied Mr. O’Neal’s motions. He has appealed, assigning four errors.

We affirm because res judicata bars his allied offenses argument, the trial court did not have

authority to consider his motion to withdraw his plea, the court had jurisdiction to resentence

him, and his trial lawyer was not ineffective.

                                      ALLIED OFFENSES

       {¶2}    Mr. O’Neal’s first assignment of error is that the trial court incorrectly determined

that his kidnapping and felonious assault convictions were not allied offenses. He has argued

that the court should have merged the counts under Section 2941.25 of the Ohio Revised Code

and State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314.

       {¶3}    In State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434, the Ohio Supreme

Court held that, if a trial court did not properly impose post-release control on a defendant whom

it sentenced before July 11, 2006, the defendant was entitled to a de novo sentencing hearing. Id.

at paragraph one of the syllabus. The basis for the Court’s decision was its understanding that a

sentence that does not properly contain post-release control is void. Id. at ¶18 (citing State v.

Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197). We relied on Singleton when we concluded in

Mr. O’Neal’s last appeal that his sentence was void and that he was entitled to a de novo

sentencing hearing. State v. O’Neal, 9th Dist. No. 09CA0045-M, 2010-Ohio-1252, at ¶14.
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       {¶4}    After we remanded this case to the trial court, the Ohio Supreme Court changed

its position. In State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, it determined that a

sentence that does not correctly impose post-release control is not entirely void, but only the part

addressing post-release control is void. Id. at ¶26. It held that “[t]he new sentencing hearing to

which an offender is entitled . . . is limited to proper imposition of postrelease control.” Id. at

paragraph two of the syllabus. It also held that “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. It further held that “[t]he scope of an

appeal from a resentencing hearing in which a [correct] term of postrelease control is imposed is

limited to issues arising at the resentencing hearing.” Id. at paragraph four of the syllabus.

       {¶5}    Although we remanded this case for a de novo sentencing hearing, under Fischer,

Mr. O’Neal was only entitled to a limited resentencing hearing on the issue of post-release

control. While our decision was correct at the time it was made and would generally be

considered the law of the case, the doctrine of law of the case is only a rule of practice that does

not have to be applied under certain circumstances, such as if there has been an intervening

decision by the Ohio Supreme Court. Nolan v. Nolan, 11 Ohio St. 3d 1, 3-5 (1984).

       {¶6}    Under Fischer, Mr. O’Neal may only appeal issues arising from his resentencing,

which, under that same case, should have been limited to the proper imposition of post-release

control. State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, at paragraphs two and four of the

syllabus. Mr. O’Neal may not contest the trial court’s decision not to merge his kidnapping and

felonious assault convictions, which is an issue that he could have raised in a prior appeal. Id. at

paragraph three of the syllabus. Mr. O’Neal’s first assignment of error is overruled.
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                                   MOTION TO WITHDRAW

       {¶7}    Mr. O’Neal’s second assignment of error is that the trial court incorrectly denied

his motion to withdraw his guilty plea. He has argued that the court violated his due process

rights at the plea colloquy and that he is actually innocent of the felonious assault charges.

       {¶8}    In one of Mr. O’Neal’s prior appeals, we concluded that, if “this Court remands a

matter [solely] for resentencing, the trial court may not entertain a motion to withdraw a plea.”

State v. O’Neal, 9th Dist. No. 07CA0050-M, 2008-Ohio-1325, at ¶11. As we explained in that

case, “[a]ny consideration of such a motion would be inconsistent with this Court’s jurisdiction

and our order that the trial court resentence the defendant. Indeed, if a trial court were to grant a

defendant’s post-remand motion to withdraw his plea, the trial court’s order would essentially

undo the entire appeal.” Id. Accordingly, because the trial court did not have authority to

consider Mr. O’Neal’s motion to withdraw his guilty plea, we conclude that the court properly

denied it. Mr. O’Neal’s second assignment of error is overruled.

                                    DELAY IN SENTENCING

       {¶9}    Mr. O’Neal’s third assignment of error is that the trial court should have

dismissed his case because it unreasonably delayed in imposing a valid sentence. He has argued

that, although he was convicted in May 2005, he did not receive a valid sentence until December

2010, five and a half years after his conviction.

       {¶10} Under Rule 32(A) of the Ohio Rules of Criminal Procedure, a defendant’s

“[s]entence shall be imposed without unnecessary delay.” See also Neal v. Maxwell, 175 Ohio

St. 201, 202 (1963). We have held, however, that Criminal Rule 32(A) does not apply when an

offender must be resentenced. State v. Robinson, 9th Dist. No. 25795, 2011-Ohio-6065, at ¶11

(compiling cases). In Robinson, we determined that the trial court had authority to hold a
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resentencing hearing to correctly impose post-release control on Mr. Robinson over six years

after it initially sentenced him. Id. at ¶12. Similarly, we conclude that the trial court had

authority to correctly impose post-release control on Mr. O’Neal five years after it first sentenced

him. Id. The trial court, therefore, correctly denied Mr. O’Neal’s motion to dismiss. Mr.

O’Neal’s third assignment of error is overruled.

                         INEFFECTIVE ASSISTANCE OF COUNSEL

       {¶11} Mr. O’Neal’s fourth assignment of error is that he received ineffective assistance

of counsel while his case was on remand for resentencing. He appears to have asserted this

assignment of error out of an abundance of caution, arguing that, “[i]n the event . . . the issues

presented . . . [were] somehow waived by previous counsel’s failure to raise them to the trial

court before re-sentencing, then this Court must consider whether Mr. O’Neal was thereby

denied the effective assistance of counsel in the proceedings following [his] motions for re-

sentencing.”

       {¶12} As we have explained above, because the trial court did not correctly impose post-

release control, its judgment was void in part and Mr. O’Neal was entitled to a new sentencing

hearing “limited to [the] proper imposition of postrelease control.” State v. Fischer, 128 Ohio St.

3d 92, 2010-Ohio-6238, at paragraph two of the syllabus. Mr. O’Neal has not alleged that his

lawyer failed to ensure that the trial court properly imposed post-release control when it

resentenced him. Accordingly, his fourth assignment of error is overruled.

                                         CONCLUSION

       {¶13} Under State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, the trial court only

had authority on remand to impose a proper term of post-release control. It, therefore, did not err

when it failed to merge Mr. O’Neal’s kidnapping and felonious assault convictions or denied his
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motions to dismiss and to withdraw his guilty plea. To the extent the trial court’s judgment entry

attempted to do anything other than properly impose post-release control, however, it is vacated,

and Mr. O’Neal’s previous sentence is reinstated.

                                                                        Judgment affirmed in part,
                                                                             and vacated in part.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to appellant.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT



WHITMORE, J.
CONCURS

BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY
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APPEARANCES:

WESLEY A. JOHNSTON, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
Attorney, for Appellee.
