[Cite as State v. Millette, 2011-Ohio-6357.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


                                                :   JUDGES:
STATE OF OHIO                                   :   Sheila G. Farmer, P.J.
                                                :   John W. Wise, J.
                          Plaintiff-Appellee    :   Julie A. Edwards, J.
                                                :
-vs-                                            :   Case No. 11-CA-23
                                                :
                                                :
ROGER MILLETTE                                  :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                             Criminal Appeal from Licking County
                                                     Court of Common Pleas Case No.
                                                     04CR032

JUDGMENT:                                            Affirmed

DATE OF JUDGMENT ENTRY:                              December 6, 2011

APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

KENNETH W. OSWALT                                    WILLIAM CRAMER
Licking County Prosecutor                            470 Olde Worthington Road, Ste. 200
                                                     Westerville, Ohio 43082
BY: TRACY F. VAN WINKLE
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
[Cite as State v. Millette, 2011-Ohio-6357.]


Edwards, J.

        {¶ 1} Appellant, Roger G. Millette, appeals a judgment of the Licking County

Common Pleas Court resentencing him to an aggregate prison term of 33 years and

adding a 5-year term of mandatory postrelease control. Appellee is the State of Ohio.

                                     STATEMENT OF FACTS AND CASE

        {¶ 2} In 2005, appellant was indicted on charges of aggravated robbery,

aggravated burglary, kidnapping, attempted rape, intimidation of a witness and two

counts of gross sexual imposition following an incident where he broke into the home of

a pregnant woman to rob her, threatened her with a knife, made her strip nearly naked

and tied her to a bed.             In exchange for dismissal of the attempted rape charge,

appellant pleaded guilty to the remaining charges.          He was sentenced to 8 years

incarceration for aggravated burglary, 8 years for aggravated robbery, 8 years for

kidnapping, 3 years for intimidation and 3 years for each count of gross sexual

imposition. All counts were to run consecutively for an aggregate term of 33 years.

        {¶ 3} On January 10, 2011, appellant filed a motion seeking to correct his

sentence for failure to impose postrelease control. The State responded by requesting

that appellant be resentenced pursuant to State v. Fischer, 128 Ohio St.3d 92, 942

N.E.2d 332, 2010-Ohio-6238. Resentencing was scheduled for February 16, 2011 and

counsel was appointed to represent appellant at resentencing.

        {¶ 4} On February 15, 2011, the day before the resentencing hearing, appellant

filed a motion to withdraw his guilty plea on the basis that postrelease control was not

validly imposed, and a motion to dismiss the resentencing proceedings on the grounds

that his sentence is now res judicata.
Licking County App. Case No. 11-CA-23                                                   3


      {¶ 5} The case proceeded to a resentencing hearing in the Licking County

Common Pleas Court. The court overruled appellant’s motion to withdraw his plea and

his motion to dismiss the proceedings. Appellant orally argued that the convictions for

robbery, burglary, kidnapping and intimidation of a witness should merge as allied

offenses of similar import.    The court sentenced appellant to the same sentence

originally imposed in this case with the addition of a mandatory term of five years

postrelease control on all counts other than intimidation of a witness, on which the court

imposed three years of postrelease control. Appellant assigns a single error:

      {¶ 6} “DEFENDANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO

DUE PROCESS AND PROTECTIONS FROM DOUBLE JEOPARDY WERE VIOLATED

WHEN THE COURT IMPOSED MULTIPLE SENTENCES FOR ALLIED OFFENSES IN

VIOLATION OF R.C. 2941.25.”

      {¶ 7} We note at the outset that appellant did not raise this issue in the trial

court in a manner in which the court could properly consider his request for merger.

Appellant did not raise this issue in any of his written motions pending before the court;

thus, the court believed the only issues before it were appellant’s request to withdraw

his plea based on the fact that his sentence was void, the motions filed by both the

State and appellant to resentence appellant to properly impose postrelease control, and

appellant’s seemingly contradictory motion to dismiss the resentencing proceeding on

the grounds that his sentence is now res judicata. When appellant raised the issue of

merger for the first time at the resentencing hearing, he did so in a conclusory way

without presenting the court with specific facts from the record and law supporting his

argument that the offenses are allied offenses of similar import:
Licking County App. Case No. 11-CA-23                                                    4


       {¶ 8} “MS. LARIMER: In addition, Your Honor, we would argue that the robbery,

burglary, kidnapping and intimidation of witness charges pursuant and in accordance

with State v. Johnson are allied offenses of similar import and request that they merge

for purposes of sentencing, and it was a single act committed, single state of mind and

the offenses correspond to such a degree that the conduct of the Defendant constituted

- - the commission of one offense constitutes the commission of the other and,

therefore, they are offenses of similar import. Under that holding in State v. Johnson we

ask the Court to consider those offenses allied and merge them for purposes of

sentencing at this time.” Tr. 9-10.

       {¶ 9} From this argument raised for the first time at the hearing, the trial court

had virtually no legal or factual basis on which to consider appellant’s request.

       {¶ 10} Further, in Fischer, supra, the Ohio Supreme Court held that when a

sentence is void because of improper imposition of postrelease control, a defendant is

entitled only to a hearing for proper imposition of postrelease control and is not entitled

to a de novo sentencing hearing at which he may raise new issues.          This Court has

held that Fischer applies to the issue of merger of offenses and a trial court does not err

in failing to consider whether offenses for which the defendant was convicted are allied

offenses of similar import; res judicata is a valid basis for rejecting these claims. State

v. Griffis, Muskingum App. No. CT2010-57, 2011-Ohio-2955, ¶35-38.
Licking County App. Case No. 11-CA-23                                             5


      {¶ 11} Appellant’s assignment of error is overruled.

      {¶ 12} The judgment of the Licking County Common Pleas Court is affirmed.




By: Edwards, J.

Farmer, P.J. and

Wise, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                             JUDGES

JAE/r0823
[Cite as State v. Millette, 2011-Ohio-6357.]


                IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                      :
                                                   :
                              Plaintiff-Appellee   :
                                                   :
                                                   :
-vs-                                               :       JUDGMENT ENTRY
                                                   :
ROGER G. MILLETTE                                  :
                                                   :
                         Defendant-Appellant       :       CASE NO. 11-CA-23




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                       _________________________________


                                                       _________________________________


                                                       _________________________________

                                                                    JUDGES
