[Cite as State v. Woods, 2011-Ohio-5825.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 96487




                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE
                                               vs.

                                   LELAND WOODS
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-429282

        BEFORE: Keough, J., Blackmon, P.J., and Cooney, J.

   RELEASED AND JOURNALIZED: November 10, 2011
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, OH 44113-2098

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
James M. Price
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

      {¶ 1} Defendant-appellant, Leland Woods, appeals from the trial court’s

judgment entry issued after a resentencing hearing held in order to properly

impose a mandatory five-year term of postrelease control. Finding no merit

to the appeal, we affirm.

                                       I.

      {¶ 2} Woods was convicted in 2003 after a jury trial of one count of rape,

eight counts of gross sexual imposition, and one count of kidnapping a child
who was under the age of 13 at the time of the offenses. The trial court

sentenced him to life in prison for the rape, two years’ incarceration on each

of the gross sexual imposition counts, to run concurrent with each other, and

three years for the kidnapping, to run consecutive to the sentence imposed on

the gross sexual imposition counts. The trial court did not advise Woods of

postrelease control at sentencing nor include postrelease control in the

sentencing entry.

       {¶ 3} Woods appealed his conviction and sentence, which this court

affirmed in State v. Woods, Cuyahoga App. No. 82789, 2004-Ohio-2700. The

Ohio Supreme Court subsequently denied Woods’s motion to file a delayed

appeal. State v. Woods, 104 Ohio St.3d 1407, 2004-Ohio-6364, 818 N.E.2d

709.

       {¶ 4} In September 2010, Woods filed a motion to vacate his sentence,

contending that the sentence was void because the trial court had not

imposed postrelease control.        The trial court subsequently held a

resentencing hearing at which it reimposed the original sentence and,

recognizing that the sentences for gross sexual imposition and kidnapping

had expired, imposed a mandatory five-year term of postrelease control on the

rape charge only.   Woods now appeals from this judgment entry.

                                     II.

A.     Life Imprisonment for Rape
      {¶ 5} In his first assignment of error, Woods argues that he was denied

due process of law when the court sentenced him to life in prison on the rape

conviction because the conviction carries a maximum ten-year sentence.

      Woods’s argument is barred by the doctrine of res judicata, which

precludes the further litigation in a criminal case of issues that were or could

have been raised previously in a direct appeal. State v. Leek (June 21, 2000),

Cuyahoga App. No. 74338, citing State v. Perry (1967), 10 Ohio St.2d 175,

180, 226 N.E.2d 104.

      {¶ 6} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d

332, the Ohio Supreme Court clarified that when a judge fails to impose

statutorily- mandated postrelease control as part of a defendant’s sentence, it

is only that part of the sentence that is void and subject to review and

correction. Id. at ¶26-27. The Fischer court found 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 ¶40.

      {¶ 7} In 2003, Woods brought a direct appeal of his conviction and

original sentence, but did not raise any issue regarding the sentence of life in

prison for rape.     Accordingly, applying Fischer, we conclude that this

assignment of error is barred by the doctrine of res judicata.
      {¶ 8} Moreover, the trial court properly sentenced Woods to life in prison

for rape. Count 1 of the indictment charged that Woods “engaged in sexual

conduct with Jane Doe, not his spouse, by purposely compelling her to submit

by the use of force or threat of force, Jane Doe being under the age of 13

years, to-wit: d.o.b. January 14, 1991,” in violation of R.C. 2907.02(A)(1)(b).

Former R.C. 2907.02(B), in effect when Woods was originally sentenced in

2003, provided that “[if] the offender under division (A)(1)(b) of this section

purposely compels the victim to submit by force or threat of force or if the

victim under division (A)(1)(b) of this section is less than ten years of age,

whoever violates division (A)(1)(b) of this section shall be imprisoned for life.”



      {¶ 9} The jury found that Woods, as indicted, engaged in sexual conduct

with a child who was under the age of 13 by purposely compelling the victim

to submit by force or threat of force. Thus, the trial court properly sentenced

him to life in prison under former R.C. 2907.02(B).

      {¶ 10} The first assignment of error is overruled.

B.    Postrelease Control

      {¶ 11} In his second assignment of error, Woods argues that the trial

court improperly imposed postrelease control upon resentencing because the

State did not file a cross-appeal in his original appeal asserting that the

sentence was improper.         Woods contends that in the absence of a
cross-appeal by the State challenging his sentence, the trial court did not

have authority to correct the sentence. This argument fails.

      {¶ 12} Woods moved for resentencing, and specifically argued in his

motions that    resentencing was required because the trial court had not

imposed postrelease control at the original sentencing.        He cannot now

complain that the trial court conducted a resentencing and imposed

postrelease control upon the motions he filed. Further, the Ohio Supreme

Court has made clear that trial courts are to correct sentences that do not

include statutorily-mandated postrelease control. See, e.g., Fischer, supra.

      {¶ 13} The second assignment of error is therefore overruled.

C.    Delay in Resentencing

      {¶ 14} Crim.R. 32(A) states that a sentence “shall be imposed without

unnecessary delay.” In his third assignment of error, Woods argues that he

was denied due process of law because there was an unreasonable delay

between the finding of guilt in his case and the imposition of sentence.

      {¶ 15} In State v. Hawkins, Cuyahoga App. No. 94294, 2011-Ohio-74,

this court adopted the reasoning of the Ninth District in State v. Culgan,

Medina App. No. 09CA0060-M, 2010-Ohio-2992, and held that Crim.R. 32(A)

does not apply in cases where an offender must be resentenced because such

cases do not involve a situation where the trial court unreasonably refused to

sentence the defendant after a finding of guilt. The Hawkins court found
that “where there is a delay between the sentence and a resentencing

occasioned by the failure to include a required term of postrelease control in

the original entry, such matter involves the correction of a void sentence and

not a delay in imposing the original sentence.” Id. at ¶10.

         {¶ 16} Here, the trial court imposed the original sentence without delay.

  It was then required to resentence Woods because the original sentence

omitted a required term of postrelease control. The resentencing involved

correcting a void part of the sentence; thus, there was no violation of Crim.R.

32(A).

         {¶ 17} The third assignment of error is therefore overruled.

D.       Kidnapping

         {¶ 18} Woods was indicted on nine carbon-copy counts of kidnapping.

During trial, the court dismissed eight of the kidnapping counts at the close of

the State’s case; the jury then found him guilty of the remaining count. In

his fourth assignment of error, Woods argues that the trial court should have

dismissed the remaining kidnapping count to protect him from double

jeopardy. He contends that there was no differentiation between the counts

and, therefore, a finding that eight of the nine counts were not proven

indicates that the remaining count should have also been dismissed.
       {¶ 19} Woods’s argument is barred by the doctrine of res judicata.   Any

alleged error could have been raised by Woods in his direct appeal; he did not

do so and therefore it is now barred.

       {¶ 20} The fourth assignment of error is overruled.

E.     Merger of Rape and Kidnapping Counts

       {¶ 21} Woods next argues that the trial court erred in not merging his

convictions for rape and kidnapping because the offenses are allied. But, as

this   court   found   in State v. Padgett, Cuyahoga App. No. 95065,

2011-Ohio-1927, the issue of merger of allied offenses is res judicata on an

appeal from a resentencing. See, also, State v. Poole, Cuyahoga App. No.

94759, 2011-Ohio-716 (“[T]he time to challenge a conviction based on allied

offenses is through a direct appeal — not at a resentencing hearing.”) The

proper avenue for Woods’s merger challenge would have been in his direct

appeal. He did not raise the merger issue in that appeal and, therefore, it is

now barred.

       {¶ 22} The fifth assignment of error is overruled.

F.     Allocution

       {¶ 23} In his sixth assignment of error, Woods contends that the trial

court erred in resentencing him without affording him his right of allocution.

       {¶ 24} Under Crim.R. 32(A), before imposing sentence, a trial court must

address the defendant personally and ask whether he or she wishes to make a
statement in his or her own behalf or present any information in mitigation of

punshment.     But “a trial court’s failure to address the defendant at

sentencing is not prejudicial in every case.” State v. Campbell, 90 Ohio St.3d

320, 325, 2000-Ohio-183, 738 N.E.2d 1178, citing State v. Reynolds (1998), 80

Ohio St.3d 670, 684, 687 N.E.2d 1358 (finding omission of allocution to be

harmless error because the defendant had made an unsworn statement to the

jury and sent a letter to the judge, and defense counsel had made a statement

to the judge on the defendant’s behalf). See, also, State v. Arroyo, Cuyahoga

App. No. 90369, 2008-Ohio-3808 (trial court’s failure to provide opportunity

for allocution at resentencing to impose postrelease control harmless error

where imposition of postrelease control was statutorily mandated, defendant

had addressed the court on previous occasions, and nothing defendant said

“would have changed the inevitable”).

     {¶ 25} Here, Woods is unable to demonstrate that he was prejudiced by

the trial court’s failure to provide another opportunity for allocution at his

resentencing. The same trial judge who originally sentenced Woods, during

a hearing at which he was provided an opportunity for allocution, conducted

the resentencing. The resentencing was solely for the purpose of imposing

postrelease control; Woods’s original sentence remained unchanged, and the

judge was statutorily required to impose five years of postrelease control.

The outcome was inevitable. Thus, the trial court’s failure to provide Woods
another opportunity for allocution did not have a prejudicial effect on the

outcome of the proceeding and was harmless error.

      {¶ 26} The sixth assignment of error is overruled.

G.    Court Costs

      {¶ 27} Last, in his seventh assignment of error, Woods contends that the

trial court erred in imposing court costs in the sentencing journal entry

without advising him at resentencing that it was imposing costs.

      {¶ 28} Once again, Woods’s argument is barred by the doctrine of res

judicata.    The record reflects that costs were imposed at the original

sentencing.1 Any alleged error regarding the imposition of costs could have

been raised by Woods on direct appeal; he did not do so and, therefore, the

issue is res judicata. Fischer, supra.

      {¶ 29} The seventh assignment of error is overruled.

                                                                            Affirmed.

      It is ordered that appellee recover from appellant 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

common pleas court to carry this judgment into execution.

      1
       Under R.C. 2947.23(A)(1), a trial court is required to assess costs against all
criminal defendants, even if the defendant is indigent. State v. White, 103 Ohio
St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶14. The trial court may waive the
payment of such costs, but is not required to do so, if the defendant is indigent. Id.;
R.C. 2949.092.
     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

PATRICIA A. BLACKMON, P.J., CONCURS;
COLLEEN CONWAY COONEY, J., CONCURS IN JUDGMENT ONLY
