[Cite as State v. Grooms, 2011-Ohio-6062.]


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

STATE OF OHIO                                       C.A. No.       25819

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
PATRICK M. GROOMS                                   COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 97 02 0437

                                 DECISION AND JOURNAL ENTRY

Dated: November 23, 2011



        WHITMORE, Judge.

        {¶1}    Defendant-Appellant, Patrick Grooms, appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms.

                                                I

        {¶2}    In 1997, a grand jury indicted Grooms on the following counts: (1) endangering

children, in violation of R.C. 2919.22(B)(2); (2) felonious assault, in violation of R.C.

2903.11(A)(1); and (3) two counts of domestic violence, in violation of R.C. 2919.25(A). The

indictment indicated that both the child endangering and felonious assault counts were second-

degree felonies. A jury acquitted Grooms on the domestic violence charges, but found him

guilty of endangering children and felonious assault. The trial court sentenced Grooms to a total

of sixteen years in prison, and this Court affirmed his convictions on direct appeal. See State v.

Grooms (Aug. 19, 1998), 9th Dist. No. 18558.
                                                 2


         {¶3}   In October 2010, Grooms filed two pro se motions for resentencing and/or

dismissal due to a defective post-release control notification. Grooms also argued in his motions

that the court committed plain error by convicting him of second-degree felony child

endangering when the jury’s verdict form did not contain either the degree of his offense level or

any aggravating element, as required by R.C. 2945.75. The court held a hearing on February 3,

2011, by which point Grooms had obtained counsel. His counsel argued that Grooms’ sentence

was actually void because the original trial judge had failed to follow R.C. 2945.75. The trial

court determined that its jurisdiction was limited to the issue of post-release control and that the

doctrine of res judicata barred any argument Grooms raised under R.C. 2945.75. On February

10, 2011, the court issued a sentencing entry that properly imposed post-release control.

         {¶4}   Grooms now appeals from the court’s sentencing entry and raises two

assignments of error for our review. For ease of analysis, we consolidate the assignments of

error.

                                                 II

                                Assignment of Error Number One

         “THE TRIAL COURT ERRED BY REFUSING TO RESENTENCE
         APPELLANT GROOMS BECAUSE HIS ORIGINAL SENTENCE FOR CHILD
         ENDANGERING WAS VOID AS CONTRARY TO OHIO LAW AND HIS
         RIGHT TO A JURY TRIAL UNDER THE UNITED STATES
         CONSTITUTION[.]”

                                Assignment of Error Number Two

         “THE TRIAL COURT ERRED BY RESENTENCING APPELLANT GROOMS
         TO A TERM OF POST-RELEASE CONTROL WITHOUT FIRST
         CONSIDERING THE LEVEL OF FELONY OF WHICH HE WAS FOUND
         GUILTY, CONTRARY TO THE REQUIREMENTS OF R.C. 2945.75 AND
         CRIM[.]R. 32(C).”
                                                 3


       {¶5}    In his assignments of error, Grooms argues that the trial court erred by refusing to

treat his original sentence as void due to the fact that it violated R.C. 2945.75. He further argues

that the court was obligated to verify the proper level of his felony offenses by examining the

jury verdict forms before imposing post-release control.

       {¶6}    In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the Ohio Supreme Court

held that a defective post-release control notification results in a partially void sentence in that

only the post-release control portion of the sentence is void. Fischer at ¶26. Because the

remainder of a defendant’s sentence is not void as a result of any post-release control defect, a

trial court’s jurisdiction in resentencing a defendant is limited. State v. West, 9th Dist. No.

25748, 2011-Ohio-4941, at ¶4-5. The trial court must conduct a new sentencing hearing, but the

hearing must be “limited to [the] proper imposition of post[-]release control.”          Fischer at

paragraph two of the syllabus. “[A]ny additional action taken by the trial court with respect to

the sentence is a nullity.” State v. Stiggers, 9th Dist. No. 25486, 2011-Ohio-4225, at ¶6.

Moreover, “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.” Fischer at paragraph

three of the syllabus. An appeal from the resentencing will be “limited to issues arising at the

resentencing hearing.” Id. at paragraph four of the syllabus.

       {¶7}    Grooms acknowledges that under Fischer the post-release control defect in his

sentence did not void the entirety of his sentence. He argues, however, that there is another

defect in his sentence that results in more than just the post-release control portion of his

sentence being void. He relies upon R.C. 2945.75 in support of his argument. That statute

provides, in part, as follows:

       “When the presence of one or more additional elements makes an offense one of
       more serious degree *** [a] guilty verdict shall state either the degree of the
                                                4


       offense of which the offender is found guilty, or that such additional element or
       elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of
       the least degree of the offense charged.” R.C. 2945.75(A)(2).

The Supreme Court has held that R.C. 2945.75(A)(2) is an express statutory requirement and

must be applied as written. State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, at ¶11-14.

       {¶8}    Grooms was charged and convicted of second-degree felony child endangering,

which required proof of serious physical harm to the child involved.           See Former R.C.

2919.22(E)(2)(d). Grooms argues that the jury verdict form for his child endangering count did

not contain either the degree of the offense or any aggravating element, so he only could have

been convicted of a third-degree felony. See R.C. 2954.75(A)(2) (requiring an offender to be

convicted of the least possible degree of the charged offense in the instance of a defective jury

verdict form); Former R.C. 2919.22(E)(3) (categorizing child endangering in violation of Former

R.C. 2919.22(B)(2) as a third-degree felony in the absence of serious physical harm to the child).

Nonetheless, the court convicted Grooms of second-degree felony child endangering. In doing

so, Grooms argues, the court violated R.C. 2945.75 and sentenced him to a greater maximum

prison term than he could have received for a first-degree misdemeanor. Grooms relies upon

State v. Beasley (1984), 14 Ohio St.3d 74, in support of his argument that the court’s error

resulted in a void sentence.

       {¶9}    In Beasley, the Supreme Court held that “[a]ny attempt by a court to disregard

statutory requirements when imposing a sentence renders the attempted sentence a nullity or

void.” Beasley, 14 Ohio St.3d at 75. In so holding, the Court concluded that the trial court had

no authority to deviate from the sentencing statute and impose a fine upon Beasley rather than

the statutorily required minimum sentence. Id. Because the trial court circumvented an express
                                                 5


statutory sentencing requirement, the Supreme Court concluded that Beasley’s sentence was void

and jeopardy could not attach to it. Id.

       {¶10} The Supreme Court has never overruled Beasley and acknowledged the opinion in

Fischer when discussing the evolution of the void sentence doctrine in Ohio. Fischer at ¶8.

Fischer reaffirmed the principal set forth in Beasley that “[n]o court has the authority to impose a

sentence that is contrary to law.” Id. at ¶23. It also rejected the notion that res judicata could

apply to sentences that do not comply with statutory mandates, “as those sentences are illegal

and subject to collateral attack or direct appeal by any party.” Id. at ¶35. Even so, the Supreme

Court cautioned that a void sentence would not entitle a defendant to greater relief than the

sentencing error warranted. Specifically, the court held that a motion to correct a void sentence

“does not permit reexamination of all perceived errors at trial or in other proceedings prior to

sentencing.” Id. at ¶25. That construction is in accordance with Beasley’s mandate that courts

cannot “disregard statutory requirements when imposing a sentence.”             (Emphasis added.)

Beasley, 14 Ohio St.3d at 75.

       {¶11} R.C. 2945.75 is not a sentencing statute. Chapter 2945 of the Revised Code

governs trials, not penalties, sentences, or other sanctions. See R.C. 2945, et seq. Compare R.C.

2929, et seq. (governing penalties and sentencing); R.C. 2967, et seq. (governing other sanctions

such as post-release control). And while an error under R.C. 2945.75(A)(2) ultimately will

impact an offender’s sentence, the nature of the error is such that it gives rise to a defective

verdict, not a void sentence.     The logical extension of any number of errors is that they

ultimately could impact the sentence imposed. The focal point of the analysis must be whether

the trial court disregarded an express statutory requirement in imposing the sentence. Fischer at

¶23; Beasley, 14 Ohio St.3d at 75. R.C. 2945.75(A)(2) only speaks to the information that a
                                                6


guilty verdict must contain. See Pelfrey at ¶12 (noting the content that R.C. 2945.75 requires “in

order to find a defendant guilty” of an offense of a higher degree). It does not impose any

statutory sentencing duty upon a court or set out a requirement that a court must follow “when

imposing a sentence.” Beasley, 14 Ohio St.3d at 75. Compare R.C. 2929.14(A) (setting forth

felony prison terms and providing that, for felonies, a court “shall impose a definite prison term

that shall be” for a designated duration, depending on the felony level); R.C. 2967.28(B)-(C)

(mandating that a trial court impose post-release control in sentencing for designated offenses).

Thus, we must conclude that an error arising from a failure to apply R.C. 2945.75 does not give

rise to a void sentence.

       “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.” State v. Perry (1967), 10 Ohio St.2d 175, paragraph
       nine of the syllabus.

Even when a portion of a sentence is void due to a post-release control error, the doctrine of res

judicata still applies to other aspects of the conviction and prevents a defendant from arguing

issues that could have been raised on appeal. Fischer at paragraph three of the syllabus; Perry,

10 Ohio St.2d at paragraph nine of the syllabus. The error that Grooms raises is one that was

cognizable on direct appeal. The verdict form here was a part of the record and any defect in the

same was a matter that could have been litigated in State v. Grooms, supra. See State v. Evans,

9th Dist. No. 10CA0027, 2011-Ohio-1449, at ¶7-10; State v. Martin, 9th Dist. No. 25534, 2011-

Ohio-1781, at ¶5-7 (both applying res judicata to an error arising under R.C. 2945.75 where the

defendants previously had their convictions affirmed on appeal). Because the error did not result
                                                 7


in a void sentence, the doctrine of res judicata applies. Thus, the trial court did not err by

concluding that it lacked jurisdiction to consider Grooms’ argument under R.C. 2945.75.

       {¶12} Grooms asserts that even if his sentence was not void because the court failed to

apply R.C. 2945.75 in imposing his original sentence, the issue was nonetheless properly before

the trial court at the time of resentencing. He argues that the resentencing court was obligated to

independently verify the degree of the offenses for which the jury convicted him because the

nature of an offender’s post-release control obligation depends upon the level of the offense at

issue. In reexamining his verdict forms, Grooms argues, the trial court then would have been

obligated to reduce the felony level of his child endangering conviction. Yet, that argument

overlooks the fact that this Court had affirmed Grooms’ conviction on direct appeal and our

doing so acted as law of the case on the trial court. See Fischer at paragraph three of the

syllabus; State v. Ortega, 9th Dist. No. 08CA009316, 2008-Ohio-6053, at ¶6-7. The trial court

here acted correctly by affording Grooms a new sentencing hearing “limited to [the] proper

imposition of post[-]release control.” Fischer at paragraph two of the syllabus. Grooms’ first

and second assignments of error are overruled.

                                                 III

       {¶13} Grooms’ assignments of error are overruled.          The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 8


       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.



                                                     BETH WHITMORE
                                                     FOR THE COURT

MOORE, J.
CONCURS

BELFANCE, P. J.
CONCURS, SAYING:

       {¶14} I concur. Mr. Grooms has not properly raised a challenge to the alleged R.C.

2945.75 error. See State v. Evans, 9th Dist. No. 10CA0027, 2011-Ohio-1449, at ¶12 (Belfance,

P.J. concurring in judgment only); State v. Martin, 9th Dist. No. 25534, 2011-Ohio-1781, at ¶9

(Belfance, P.J. concurring in judgment only).


APPEARANCES:

J. DEAN CARRO, Appellate Review Office, School of Law, The University of Akron, for
Appellant.

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