[Cite as State v. Wooden, 2011-Ohio-4942.]


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

STATE OF OHIO                                        C.A. No.       25607

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JOHN L. WOODEN                                       COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 01 07 1646

                                DECISION AND JOURNAL ENTRY

Dated: September 28, 2011



        CARR, Presiding Judge.

        {¶1}    Appellant, John Wooden, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms, in part, and vacates, in part.

                                                I.

        {¶2}    This case arises out of two incidents which occurred in 2001. The substantive

facts of the incidents, which involved the rape and kidnapping of a thirteen-year-old girl, are set

forth in this Court’s prior decision. State v. Wooden, 9th Dist. No. 21138, 2003-Ohio-1917.

        {¶3}    Wooden was initially indicted by the Summit County Grand Jury on July 6, 2001.

The State subsequently supplemented the indictment on two separate occasions. Wooden was

indicted on two counts of rape, in violation of R.C. 2907.02(A)(2); two counts of kidnapping, in

violation of R.C. 2905.01(A)(4); two counts of gross sexual imposition, in violation of R.C.

2907.05(A)(1); one count of attempted rape, in violation of R.C. 2923.02 and R.C.

2907.02(A)(2); and one count of burglary, in violation of R.C. 2911.12(A)(1). Wooden pleaded
                                                 2


not guilty to the charges and the matter proceeded to a jury trial. Wooden was found guilty of

each count in the indictment with the exception of the burglary charge. The trial court then

sentenced Wooden to a total of twenty-nine years of incarceration. The trial court issued its

sentencing entry on May 14, 2002. After a subsequent hearing, the trial court found Wooden to

be a sexual predator.

       {¶4}    On June 11, 2002, Wooden filed a notice of appeal. On appeal, Wooden raised

seven assignments of error. This Court affirmed his convictions on April 16, 2003. Wooden

filed a notice of appeal to the Supreme Court of Ohio. On December 24, 2003, the Supreme

Court denied Wooden’s motion for leave to file a delayed appeal. State v. Wooden, 100 Ohio

St.3d 1543, 2003-Ohio-6879.

       {¶5}    On April 20, 2006, Wooden filed a pro se motion for resentencing on the basis

that his sentence was unlawful in light of the Supreme Court of Ohio’s decision in State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856. The State responded by arguing that Wooden’s

motion did not satisfy the requirements for a petition for post-conviction relief. The trial court

denied the motion on May 4, 2006.

       {¶6}    On June 18, 2010, Wooden filed a pro se motion to impose a lawful sentence on

the basis that his original sentence did not contain proper notification of post-release control. On

June 28, 2010, the trial court issued an order directing the Summit County Sherriff to return

Wooden to the courthouse for re-sentencing. On July 2, 2010, Wooden filed a pro se motion to

dismiss on the basis that the indictment was not sufficient to charge an offense. A resentencing

hearing was held on September 15, 2010. Wooden was represented by counsel at the hearing.

At that time, the trial court denied Wooden’s motion to dismiss and re-imposed the original term

of incarceration. The trial court also informed Wooden that he would be subject to a mandatory
                                                 3


term of five years on post-release control upon his release from prison because he had been

found guilty of a first degree felony. The trial court further found Wooden to be a sexual

predator. The trial court issued its sentencing entry on September 21, 2010.

       {¶7}    On September 29, 2010, Wooden filed a notice of appeal. On appeal, he raises

two assignments of error.

                                                II.

                                 ASSIGNMENT OF ERROR I

       “APELLANT’S     CONVICTIONS    FOR     KIDNAPPING       ARE
       UNCONSTITUTIONAL AS THE INDICTMENT CHARGING APPELLANT
       FAILED TO SPECIFY THE MENS REA ATTACHED TO THE CRIMES, IN
       VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
       UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16
       OF THE OHIO CONSTITUTION.”

       {¶8}    In his first assignment of error, Wooden argues that his convictions for

kidnapping were unlawful because the indictments failed to specify the mens rea under which the

State alleged the kidnapping occurred. This Court disagrees.

       {¶9}    In support of his first assignment of error, Wooden argues that the trial court erred

in denying his motion to dismiss, which was filed on July 2, 2010, because the indictment failed

to specify the mens rea element for the offense of kidnapping. Wooden concedes that his

position is contrary to the position articulated by the Supreme Court of Ohio in State v. Horner,

126 Ohio St.3d 466, 2010-Ohio-3830, but raises the argument with the aim of preserving the

issue for appeal. Wooden advocates a standard in which the failure to specify the mens rea

element in a kidnapping charge would be regarded as a violation of the Fifth Amendment of the

United States Constitution, as applied through the Fourteenth Amendment, as well as Article I,

Sections 10 and 16 of the Ohio Constitution.
                                                  4


       {¶10} As Wooden previously appealed his convictions to this Court and declined to

raise this issue, he is now barred from re-litigating the issue by the doctrine of res judicata.

       {¶11} In State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus, the

Supreme Court of Ohio articulated the parameters of the doctrine of res judicata:

       “Under the doctrine of res judicata, a final judgment of conviction bars a
       convicted defendant who was represented by counsel from raising and litigating
       in any proceeding except an appeal from that judgment, any defense or any
       claimed lack of due process that was raised or could have been raised by the
       defendant at the trial, which resulted in that judgment of conviction, or on an
       appeal from that judgment.”

(Emphasis added.) This Court has recognized that, by the plain language of Perry, “the doctrine

of res judicata is directed at procedurally barring convicted defendants from relitigating matters

which were, or could have been, litigated on direct appeal.” State v. Widman (May 16, 2001),

9th Dist. No. 00CA007681.

       {¶12} Wooden exercised his right to appeal to this Court in 2002. While he raised seven

different assignments of error on appeal, he did not challenge the sufficiency of the indictment.

This Court affirmed his convictions on April 16, 2003. State v. Wooden, 9th Dist. No. 21138,

2003-Ohio-1917. As Wooden did not raise any challenges to the indictment in his appeal of

right, he is now barred from raising that issue in a subsequent action. Widman, supra.

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

                                  ASSIGNMENT OF ERROR II

       “APPELLANT WAS DEPRIVED OF HIS DUE PROCESS AND HIS SPEEDY
       TRIAL RIGHTS WHEN HE WAS NOT GIVEN A VALID SENTENCE UNTIL
       OVER EIGHT YEARS AFTER HE WAS FOUND GUILTY, IN VIOLATION
       OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE
       UNITED STATES CONSTITUTION.”

       {¶14} In his second assignment of error, Wooden argues the trial court lost jurisdiction

to impose sentence due to unreasonable delay. This Court disagrees.
                                                5


        {¶15} In support of his assignment of error, Wooden contends that the trial court was

without jurisdiction to resentence him in September 2010. Wooden contends that the delay

which occurred between the time he was convicted and the time he was resentenced in

September 2010, violated the Fifth and Sixth Amendments of the United States Constitution, as

applied through the Fourteenth Amendment, as well as Crim.R. 32(A).            In support of his

position, Wooden relies on the Eighth District’s decision in Euclid v. Brackis (1999), 135 Ohio

App.3d 729, and several other cases, for the proposition that a defendant should be discharged

when there is an unreasonable delay between the time of conviction and the time of sentencing.

        {¶16} The Supreme Court of Ohio has held that an error in post-release control

notification does not result in a void sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238.   In Fischer, the Supreme Court held that “when a judge fails to impose statutorily

mandated postrelease control as part of a defendant’s sentence, that part of the sentence is void

and must be set aside.” Id. at ¶26. The Court reasoned that “[n]either the Constitution nor

common sense commands anything more.” Id. The new sentencing hearing that a defendant is

entitled to “is limited to proper imposition of postrelease control.” Id. at ¶29. The Court also

held that res judicata “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.

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

unnecessary delay.” The Supreme Court of Ohio has recognized that delay for a reasonable time

does not invalidate a sentence. Neal v. Maxwell (1963), 175 Ohio St. 201, 202. This Court has

held that Crim.R. 32(A) does not apply in cases where an offender must be re-sentenced. State v.

Spears, 9th Dist. No. 24953, 2010-Ohio-1965, at ¶19, citing State v. Huber, 8th Dist. No. 85082,
                                                6


2005-Ohio-2625, ¶8. See, also, State v. Culgan, 9th Dist. No. 09CA0060-M, 2010-Ohio-2992, at

¶36-37; State v. Jones, 9th Dist. No. 25032, 2010-Ohio-4455, at ¶9-10, State v. Banks, 9th Dist.

No. 25279, 2010-Ohio-1039, at ¶42-43. “This logic, as it relates to Crim.R. 32(A), recognizes

the distinction between a trial court refusing to sentence an offender and a trial court improperly

sentencing an offender.” Spears at ¶19. Furthermore, the Supreme Court of Ohio has held that a

trial court retains continuing jurisdiction to correct a void sentence. State ex rel. Cruzado v.

Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, at ¶19, citing State v. Beasley (1984), 14 Ohio

St.3d 74, 75.

       {¶18} This is not a case where the trial court refused to impose a sentence upon an

offender. Rather, Wooden was sentenced promptly after he was found guilty in 2002. On June

18, 2010, Wooden filed a motion informing the trial court that he had not been properly notified

of post-release control. On June 28, 2010, the trial court ordered that Wooden be returned to the

courthouse for re-sentencing. The re-sentencing hearing was held on September 15, 2010. In

accordance with Fischer, the scope of the new sentencing hearing to which Wooden 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 Wooden at the re-sentencing hearing. As the lawful portion of Wooden’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. Furthermore, as the lawful elements of

Wooden’s original sentence remained in place, he cannot prevail on his argument that there was

unreasonable delay in imposing a sentence. To the extent the trial court properly imposed a

mandatory five-year period of post-release control upon Wooden at the resentencing hearing, its
                                                 7


judgment is affirmed. To the extent the trial court conducted a de novo sentencing hearing and

reissued a sentence to Wooden, its judgment in that respect is vacated.

                                                III.

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

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

notify Wooden that he would be subject to a mandatory five-year period of post-release control

is affirmed. The remaining portion of Wooden’s original sentence remains in place.

                                                                          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(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.




                                                       DONNA J. CARR
                                                       FOR THE COURT
                                         8




WHITMORE, J.
MOORE, J.
CONCUR

APPEARANCES:

ADAM VAN HO, Attorney at Law, for Appellant.

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