[Cite as State v. Bachman, 2011-Ohio-6151.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO,                                   JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee,                      Hon. Sheila G. Farmer, J.
                                                 Hon. Julie A. Edwards, J.
v.
                                                 Case No. 2011CA00125
RONALD D. BACHMAN,

        Defendant-Appellant.                     OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Stark County Court of
                                              Common Pleas, Case No. 1995-CR-0300


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                       November 28, 2011


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


JOHN D. FERRERO                               RONALD D. BACHMAN, PRO SE
PROSECUTING ATTORNEY,                         Inmate No. A311-224
STARK COUNTY, OHIO                            Richland Correctional Institution
                                              P.O. Box 8107
By: RONALD MARK CALDWELL                      Mansfield, Ohio 44901
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2011CA00125                                                        2

Hoffman, P.J.


       {¶ 1} Defendant-appellant Ronald Bachman appeals the May 11, 2011

Judgment Entry entered by the Stark County Court of Common Pleas resentencing him

to properly address the imposition of court costs. Plaintiff-appellee is the State of Ohio.

                                  STATEMENT OF THE CASE

       {¶ 2} On April 4, 1995, the Stark County Grand Jury indicted Appellant Ronald

Bachman on four counts of rape, one count of sexual battery, one count of corruption of

a minor and one count of gross sexual imposition. The four counts of rape each

contained a force specification. These charges were based on allegations Appellant

sexually abused his daughter from the time she was five years old.

       {¶ 3} Appellant was tried before a jury, which found him guilty as charged in the

indictment.

       {¶ 4} By Judgment Entry filed July 27, 1995, and a Nunc Pro Tunc Entry filed

August 29, 1995, the trial court sentenced Appellant to the mandatory life sentences on

the four rape convictions and imposed a determinate term of two years on all the

remaining charges. The sentences were then either merged or imposed to run

concurrently with each other.

       {¶ 5} This Court affirmed Appellant’s conviction via Judgment Entry of

September 23, 1996, State v. Bachman Stark App. No. 1995-CA-00266.

       {¶ 6} In April, 2004, an action was filed in the Stark County Court of Common

Pleas recommending that Appellant be classified a sexual predator.
Stark County, Case No. 2011CA00125                                                        3


       {¶ 7} On April 12, 2004, a hearing was held to determine Appellant's status

pursuant to the Sex Offender Registration Act, R.C. Chapter 2950. By judgment entry

filed April 20, 2004, the trial court classified Appellant a “sexual predator.”

       {¶ 8} Appellant filed an appeal and this Court upheld such classification.

       {¶ 9} On March 24, 2008, Appellant filed a motion for a new trial and on July 10,

2009, Appellant filed a motion for resentencing. Via Judgment Entry of April 29, 2010,

the trial court denied Appellant’s motion for new trial. Appellant filed an appeal with this

Court. This Court affirmed the trial court’s denial of Appellant’s motion for new trial via

Judgment Entry of November 22, 2010.

       {¶ 10} Via Entry of April 23, 2011, the trial court notified Appellant of a limited

resentencing hearing solely on the imposition of court costs. The video resentencing

was scheduled for May 3, 2011.          On April 29, 2011, Appellant filed a sentencing

memorandum and a motion for mistrial. On May 3, 2011, the trial court resentenced

Appellant, and via Judgment Entry of May 11, 2011, denied Appellant’s sentencing

memorandum and motion for mistrial. The court further denied Appellant’s waiver of

court costs, but granted Appellant’s motion for time served.

       {¶ 11} Appellant now appeals, assigning as error:

       {¶ 12} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

THE MOTION FOR MISTRIAL IN VIOLATION OF THE FOURTEENTH AMENDMENT

TO THE UNITED STATES CONSTITUTION.

       {¶ 13} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN VIOLATION OF

THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
Stark County, Case No. 2011CA00125                                                         4


WHEN IT HELD A RESENTENCING HEARING TO CORRECT ERRORS IN THE

IMPOSITION OF COURT COST.”

                                                I & II

       {¶ 14} The alleged errors assigned by Appellant raise common and interrelated

issues; therefore, we will address Appellant’s arguments together.

       {¶ 15} Appellant asserts he was entitled to a de novo sentencing hearing due to

the trial court’s alleged error in imposing court costs at his original sentencing. The sole

argument raised in Appellant’s motion for resentencing was the entry originally issued

by the trial court was void because it included the imposition of court costs which were

not orally imposed at the sentencing hearing.

       {¶ 16} As set forth in the statement of the case, supra, the trial court conducted a

limited resentencing hearing on May 3, 2011.             At the limited resentencing hearing,

Appellant moved the trial court to waive court costs. The trial court overruled the motion

in its May 11, 2011 Judgment Entry.

       {¶ 17} In State v. Joseph 125 Ohio St.3d 76, 2010-Ohio-954, the Ohio Supreme

Court held:

       {¶ 18} “Here, Joseph was not given an opportunity at the sentencing hearing to

seek a waiver of the payment of costs, because the trial court did not mention costs at

the sentencing hearing. Joseph argues that the court's failure to orally inform him of

court costs is akin to a court's failure to alert a defendant at his sentencing hearing to

the court's imposition of postrelease control. When postrelease control is statutorily

mandated-thus leaving no discretion with the trial judge in regard to its imposition-we

have held that failure of the judge to notify the defendant on the record regarding
Stark County, Case No. 2011CA00125                                                       5


postrelease control results in a void sentence, necessitating complete resentencing.

State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568.

       {¶ 19} “***

       {¶ 20} “While the failure of the court to orally notify Joseph that it was imposing

court costs on him does not void Joseph's sentence, it was error: Crim.R. 43(A) states

that a criminal defendant must be present at every stage of his trial, including

sentencing. The state urges that any error is harmless. However, Joseph was harmed

here. He was denied the opportunity to claim indigency and to seek a waiver of the

payment of court costs before the trial court. He should have had that chance.

       {¶ 21} “We therefore remand the cause to the trial court for the limited purpose of

allowing Joseph to move the court for a waiver of the payment of court costs. Should

Joseph file such a motion, the court should rule upon it within a reasonable time.

       {¶ 22} “Accordingly, we affirm the judgment of the court of appeals insofar as it

held that Joseph is not entitled to a complete resentencing. ***”

       {¶ 23} Accordingly, the Court in Joseph expressly limited resentencing

proceedings on court costs to the limited issue of the proper imposition of court costs. It

did not find the judgment entry was void. We find the situation is not analogous to when

a trial court fails to properly impose mandatory post release control. Therefore, we

conclude the trial court did not error in limiting the resentencing hearing to the issue of

the proper imposition of court costs.

       {¶ 24} Furthermore, we find Appellant’s arguments relative to his motion for a

mistrial are barred by the doctrine of res judicata as they were previously raised or
Stark County, Case No. 2011CA00125                                                  6

were capable of being raised on direct appeal. State of Szefcyk (1996), 77 Ohio St.3d

93.

        The May 11, 2011 Judgment Entry of the Stark County Court of Common Pleas

                                                                          is affirmed.

                                                                    By: Hoffman, P.J.

Farmer, and Edwards, JJ., concur.



                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer___________________
                                          HON. SHEILA G. FARMER


                                          s/ Julie A. Edwards___________________
                                          HON. JULIE A. EDWARDS
Stark County, Case No. 2011CA00125                                          7


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO,                        :
                                      :
      Plaintiff-Appellee,             :
                                      :
v.                                    :        JUDGMENT ENTRY
                                      :
RONALD D. BACHMAN,                    :
                                      :
      Defendant-Appellant.            :        Case No. 2011CA00125


      For the reasons stated in our accompanying Opinion, the May 11, 2011

Judgment Entry of the Stark County Court of Common Pleas is affirmed. Costs to

Appellant.




                                      s/ William B. Hoffman _________________
                                      HON. WILLIAM B. HOFFMAN


                                      s/ Sheila G. Farmer __________________
                                      HON. SHEILA G. FARMER


                                      s/ Julie A. Edwards___________________
                                      HON. JULIE A. EDWARDS
