[Cite as State v. Wheeler, 2011-Ohio-1521.]


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

STATE OF OHIO                                         C. A. No.    25183

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RAFFAEL DION WHEELER                                  COURT OF COMMON PLEAS
aka STANLEY                                           COUNTY OF SUMMIT, OHIO
                                                      CASE No.   CR 03 08 2421
        Appellant

                                 DECISION AND JOURNAL ENTRY

Dated: March 30, 2011



        DICKINSON, Presiding Judge.

                                              INTRODUCTION

        {¶1}     Raffael Wheeler pleaded guilty in 2003 to counts of aggravated robbery and

possession of cocaine, and the trial court sentenced him to eight years in prison. Mr. Wheeler

did not appeal, but in 2008, he moved for resentencing, arguing that the trial court had not

properly imposed post-release control. The trial court denied his motion, but this Court reversed,

vacated Mr. Wheeler’s sentence, and remanded for resentencing. On remand, Mr. Wheeler

moved to dismiss his case, arguing that his indictment was defective because it was not properly

signed. The trial court denied his motion and resentenced him to eight years in prison. Mr.

Wheeler has appealed the denial of his motion to dismiss. We affirm because Mr. Wheeler’s

argument is barred by res judicata.
                                                2


                                  UNSIGNED INDICTMENT

       {¶2}    Mr. Wheeler’s assignment of error is that the trial court incorrectly denied his

motion to dismiss. He has argued that his indictment was defective under Rule 6(F) of the Ohio

Rules of Criminal Procedure, which requires “the foreman or deputy foreman [of the Grand Jury

to] sign the indictment . . . .” See also Crim. R. 7(B) (“The indictment shall be signed in

accordance with Crim.R. 6(C) and (F)[.]”).

       {¶3}    The State has argued that Mr. Wheeler’s argument is barred because he did not

appeal the trial court’s 2003 sentencing entry. The Ohio Supreme Court has held that “[a]

defendant who enters a voluntary plea of guilty while represented by competent counsel waives

all nonjurisdictional defects in prior stages of the proceedings.” Ross v. Common Pleas Court of

Auglaize County, 30 Ohio St. 2d 323, 324 (1972) (quoting Crockett v. Haskins, 372 F.2d 475,

476 (6th Cir. 1966)). The Supreme Court has also held that a grand jury foreperson’s failure to

sign an indictment is not jurisdictional error. VanBuskirk v. Wingard, 80 Ohio St. 3d 659, 660

(1998); Kroger v. Engle, 53 Ohio St. 2d 165, 165 (1978).

       {¶4}    Mr. Wheeler has argued that, because the trial court’s original sentencing entry

was void, this appeal is his first direct appeal. He has argued that he, therefore, did not forfeit

the defect in his indictment.

       {¶5}    In light of recent Ohio Supreme Court precedent, we conclude that Mr. Wheeler is

incorrect. In State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, the Ohio Supreme Court 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.”

Id. at syllabus. Following the Supreme Court’s logic, this Court subsequently determined that,
                                                 3


“regardless of whether a defendant has already appealed his conviction, if the order from which

the first appeal was taken is not final and appealable, he is entitled to a new sentencing entry

which can itself be appealed.” State v. Harmon, 9th Dist. No. 24495, 2009-Ohio-4512, at ¶6. In

State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, however, the Ohio Supreme Court

modified its holding in Bezak. Id. at ¶27. The Supreme Court clarified 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. “[R]es judicata still applies to other

aspects of the merits of [the] conviction, including the determination of guilt and the lawful

elements of the ensuing sentence.” Id. at paragraph three of the syllabus. The only issues a

defendant can raise on appeal after the resentencing hearing to correctly impose post-release

control are “issues arising at the resentencing hearing.” Id. at paragraph four of the syllabus.

       {¶6}    Applying Fischer, we conclude that Mr. Wheeler’s argument is barred by res

judicata. Specifically, he could have raised the alleged defect with his indictment on direct

appeal from the 2003 sentencing entry. See State v. Rexroad, 9th Dist. No. 22214, 2004-Ohio-

6271, at ¶8 (“That a defendant failed to directly appeal from his conviction and sentence does not

prevent the application of the doctrine of res judicata.”). Mr. Wheeler’s assignment of error is

overruled.

                                          CONCLUSION

       {¶7}    The trial court correctly denied Mr. Wheeler’s motion to dismiss. The judgment

of the Summit County Common Pleas Court is affirmed.

                                                                                Judgment affirmed.
                                                 4




       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.


                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT


WHITMORE, J.
CONCURS


BELFANCE, J.
CONCURS IN JUDGMENT ONLY, SAYING:

       {¶8}    The main opinion follows the spirit of the holdings of State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238. Nonetheless, I reluctantly concur.

       {¶9}    I write separately to note a recurring problem that has arisen that is not explicitly

resolved by Fischer.     Specifically, what legal course should this Court take when it has

previously applied the precedents preceding Fischer?           In following the then valid and

unqualified Supreme Court precedent, this Court vacated numerous sentencing entries,
                                                5


concluding they were void for errors in post-release control notification. See, e.g., State v.

Moton, 9th Dist. No. 24262, 2009-Ohio-4169, at ¶¶4-6. Given the vacation of the original

judgment, it would not be illogical or legally unsound for an appellant who is now appealing

from the de novo sentencing entry to assume that the appellate court would consider the merits of

his or her arguments; after all, the new sentencing entry would be the only final judgment in the

record on the matter and under the law, it would seem that the appellant would be legally entitled

to pursue an appeal from the only existing judgment of record in the matter. This would equally

apply even if the appellant had already had an appeal from the now non-existent original

sentencing entry, or if the appellant could have appealed the now non-existent original

sentencing entry and chose not to do so since the appellant’s original sentence was vacated.

       {¶10} Yet, the Fischer Court has held that appellants who were improperly informed of

their post-release control obligations only get one bite at the appellate apple concerning “the

determination of guilt and the lawful elements of the ensuing sentence.” Fischer at ¶40. Clearly,

in light of Fischer, this Court would not now vacate a sentence for an error in post-release

control notification. Fischer provides that such sentences are only partially void and are not

subject to de novo resentencing. Fischer at paragraph two of the syllabus, ¶26. However, we

still cannot escape the fact that we did vacate these sentences and Fischer does not address this

specific issue. Thus, this Court is faced with the quandary of how to apply Fischer while still

addressing the legal consequences of this Court having applied the law in effect prior to Fischer.

       {¶11} In doing so, this Court has sometimes chosen to acknowledge the legal reality of

what happened, i.e. that we vacated the appellant’s sentence, and the legal consequences

associated therewith. See State v. Wilborn, 9th Dist. No. 25352, 2011-Ohio-1038, at ¶7 (“Under

Singleton and the recently decided State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, the
                                                 6


vacation of Mr. Wilborn’s sentence should have been limited to the improperly imposed post-

release control, leaving the rest of the sentence intact. See Fischer, 2010-Ohio-6238, at ¶26-28;

Singleton, 2010-Ohio-6434, at ¶24. Because we vacated his entire sentence, however, Mr.

Wilborn’s motion to withdraw his guilty plea was a presentence motion. State v. Boswell, 121

Ohio St. 3d 575, 2009-Ohio-1577, syllabus.”); State v. Banks, 9th Dist. No. 25279, 2011-Ohio-

1039, at ¶53, fn. 4 (noting that because we vacated Mr. Banks’ sentence, the trial court was

correct in conducting a de novo sentencing hearing even despite the holding of Fischer).

However, in this case, the main opinion does not directly address the fact that we vacated Mr.

Wheeler’s sentence, albeit arguably doing so in accordance with the principles outlined in

Fischer. It then proceeds to bar his arguments under res judicata despite the fact that Mr.

Wheeler has no other final sentencing entry in the record on this matter but the one he now

appeals.

       {¶12} As the Supreme Court has not provided guidance on this point and the view of the

main opinion is in line with the Fischer Court’s holding which precludes multiple appeals on the

merits unrelated to the imposition of post-release control at resentencing, I reluctantly concur.




APPEARANCES:

JEFFREY N. JAMES, Attorney at Law, for Appellant.

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