[Cite as State v. Ali, 2012-Ohio-4025.]


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

STATE OF OHIO                                        C.A. No.     26223

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JUBA ABDULLAH ALI                                    COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 97 08 1663

                                  DECISION AND JOURNAL ENTRY

Dated: September 5, 2012



        CARR, Presiding Judge.

        {¶1}     Appellant, Juba Ali, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                                I.

        {¶2}     This appeal stems from Ali’s convictions for gross sexual imposition, rape and

kidnapping. After Ali was indicted on numerous charges on August 12, 1997, this matter

proceeded to trial and Ali was convicted by a jury of gross sexual imposition and acquitted of

carrying a concealed weapon. The jury was unable to reach a verdict on the remaining counts.

The matter was subsequently retried and Ali was convicted of one count of rape and one count of

kidnapping, but acquitted of a second count of rape. The trial court issued separate sentencing

entries on November 6, 1997, pertaining to the gross sexual imposition conviction, and on May

14, 1998, pertaining to the rape and kidnapping convictions. Ali appealed from each final order

and this Court affirmed his convictions. State v. Ali, 9th Dist. No. 18841, 1998 WL 597654
                                                     2


(Sept. 9, 1998) (“Ali I”) and State v. Ali, 9th Dist. No. 19119, 1999 WL 270420 (Apr. 28, 1999)

(“Ali II”).

         {¶3}   More than ten years later, on August 6, 2009, Ali filed a motion for resentencing

in the trial court. The trial court subsequently resentenced Ali because the original sentencing

entries failed to impose mandatory post-release control. The trial court issued a resentencing

entry on November 25, 2009, which imposed post-release control. When Ali appealed, this

Court dismissed the appeal by journal entry on the basis that the resentencing entry, unlike the

initial entries, failed to contain a guilty plea or a finding of guilt.

         {¶4}   The trial court subsequently issued a nunc pro tunc resentencing entry on

December 8, 2010, therein setting forth findings of guilt. Ali then appealed from the December

8, 2010 entry. This Court dismissed his appeal as untimely on the authority of State v. Fischer,

128 Ohio St.3d 92, 2010-Ohio-6238 and State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204.

See State v. Ali, 9th Dist. No. 25750, 2011-Ohio-6061 (“Ali III”).

         {¶5}   On December 12, 2011, Ali filed a motion for leave to file a delayed appeal from

the trial court’s November 25, 2009, and December 8, 2010 sentencing entries. On December

16, 2011, this Court granted the motion. In his current appeal, Ali raises two assignments of

error.

                                                    II.

                                    ASSIGNMENT OF ERROR I

         THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
         FOUND DEFENDANT GUILTY OF KIDNAPPING, ON THE GROUNDS
         THAT THE INDICTMENT WAS FATALLY DEFECTIVE, BECAUSE THE
         INDICTMENT DID NOT INCLUDE THE MENTAL CULPABILITY
         ELEMENT FOR THOSE OFFENSES[.]
                                                 3


                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED
       DEFENDANT’S RIGHTS TO DUE PROCESS IN FINDING DEFENDANT
       GUILTY OF KIDNAPPING UNDER R.C. 2905.01(A)(4), A FELONY OF THE
       FIRST DEGREE, BECAUSE THE JURY DID NOT FIND DEFENDANT
       GUILTY OF THIS OFFENSE[.]

       {¶6}    In his first and second assignments of error, Ali raises challenges to his

underlying kidnapping conviction.

       {¶7}    In Ali’s prior attempt to appeal, this Court briefly discussed the precedent

established by the Supreme Court of Ohio in Fischer. Ali III, 2011-Ohio-6061, at ¶ 8. The

Supreme Court had previously held that “[w]hen a defendant is convicted of or pleads guilty to

one or more offenses and postrelease control is not properly included in a sentence for a

particular offense, the sentence for that offense is void. The offender is entitled to a new

sentencing hearing for that particular offense.” State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-

3250, syllabus. In Fischer, the Supreme Court noted that its decision in Bezak left certain

questions unanswered. Fischer at ¶ 18, 27. The Supreme Court in Fischer reaffirmed its

position that “[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.” Id. at paragraph one of the

syllabus. The Supreme Court also modified a portion of the precedent established in Bezak by

holding that “[t]he new sentencing hearing to which an offender is entitled under State v. Bezak

is limited to proper imposition of post[-]release control.” Id. at paragraph two of the syllabus.

The Supreme Court also concluded that while “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.” Id. at
                                                 4


paragraph three of the syllabus. The Supreme Court further held that “[t]he scope of an appeal

from a resentencing hearing in which a mandatory term of post[-]release control is imposed is

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

       {¶8}    In this case, the trial court’s original sentencing entries were issued on November

6, 1997, and May 14, 1998. R.C. 2967.28(B) mandates that an offender convicted of a felony of

the first degree is subject to a mandatory five-year term of post-release control. The original

sentencing entries failed to impose a term of post-release control upon Ali. Ali appealed from

each of those sentencing entries and his convictions were affirmed by this Court. See Ali I & Ali

II. More than ten years later, Ali filed a motion for resentencing on the basis that the trial court

had failed to properly impose post-release control. The trial court held a resentencing hearing on

November 24, 2009. In accordance with Fischer, the scope of the new sentencing hearing to

which Ali was entitled was limited to the proper imposition of post-release control. Fischer, at

paragraph two of the syllabus. It follows that the trial court had authority to impose the proper

term of post-release control on Ali at the November 24, 2009 hearing. As the lawful portion of

Ali’s original sentence remained in place pursuant to Fischer, the trial court did not have

authority to conduct a de novo sentencing hearing and reissue a sentence. Thus, to the extent the

trial court properly imposed a mandatory five-year term of post-release control upon Ali at the

resentencing hearing, its judgment is affirmed. To the extent the trial court conducted a de novo

sentencing hearing and reissued a sentence to Ali, its judgment in that respect is vacated and

Ali’s original sentence remains in place.
                                                 5


                                                III.

       {¶9}    The judgment of the Summit County Court of Common Pleas is vacated to the

extent that the court exceeded its authority and resentenced Ali. The trial court’s decision to

properly impose a mandatory five-year period of post-release control is affirmed.

                                                                       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 Summit, 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(C). 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.




                                                       DONNA J. CARR
                                                       FOR THE COURT



DICKINSON, J.
BELFANCE, J.
CONCUR.
                                         6


APPEARANCES:

RHONDA KOTNIK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
