[Cite as State v. Mitchell, 2011-Ohio-1958.]

COURT OF APPEALS 

 DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. Sheila G. Farmer, P.J. 

 Plaintiff-Appellee : Hon. Julie A. Edwards, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : Case Nos. 10-CA-61; 10-CA-62 

& 10-CA-63 

MARK A. MITCHELL : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of 

Common Pleas Case Nos. 97-CR-I-12-

0473; 98-CR-I-05-0161; 98-CR-I-10-0347 

 

JUDGMENT: AFFIRMED IN PART; REVERSED IN 

PART AND ORIGINAL CLASSIFICATION 

 REINSTATED 

DATE OF JUDGMENT ENTRY: April 20, 2011 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

CAROL O’BRIEN JOHN R. CORNELY 0072393 

Delaware County Prosecuting Attorney 21 Middle St. 

140 N. Sandusky St. P.O.Box 248 

Delaware, Ohio 43015 Galena, Ohio 43021-2718 

 

MARIANNE HEMMETER 0068896 

Assistant Prosecuting Attorney 

(Counsel of Record) 

 
[Cite as State v. Mitchell, 2011-Ohio-1958.]

Delaney, J. 

{¶1} Defendant-Appellant Mark A. Mitchell appeals the judgment of the 

Delaware County Court of Common Pleas, who, at a resentencing hearing on July 19, 

2010, imposed a Tier III sexual offender reclassification on him, informed him of 

mandatory post release control, and affirmed his original sentence that was imposed in 

1998. The State of Ohio is the Plaintiff-Appellee. 

{¶2} On December 8, 1997, Appellant was indicted in Delaware County in 

Case Number 97-CR-I-12-0473. On May 22, 1998, Appellant entered a guilty plea and 

was convicted of one count of Gross Sexual Imposition, a felony of the third degree, in 

violation of R.C. 2907.05(A)(4). 

{¶3} On May 29, 1998, Appellant was indicted on case number 98-CR-I-05-

0161. He pled guilty to one count of rape, in violation of R.C. 2907.02, a felony of the 

first degree. 

{¶4} On October 22, 1998, the Delaware County Prosecutor filed a Bill of 

Information in case number 98-CR-I-10-347, charging Appellant with two counts of 

sexual battery in violation of R.C. 2907.03(A)(9). On October 23, 1998, Appellant 

waived his right to be prosecuted by indictment and entered a guilty plea to both counts 

as set forth in the Bill of Information. 

{¶5} On October 23, 1998, the trial court held a sex offender classification 

hearing and found Appellant to be a sexual predator. The court also held a sentencing 

hearing and imposed four years imprisonment in case number 97-CR-I-12-0473 to run 

consecutive to the sentences imposed in case numbers 98-CR-I-05-0161 of eight years 

and 98-CR-I-10-0347, also an eight year sentence. 
Delaware County, Case Nos. 10-CA-61, 10-CA-62, & 10-CA-63 3 

{¶6} On June 18, 2010, the trial court scheduled a resentencing hearing and 

ordered Appellant to be transported for the hearing. The resentencing hearing was held 

because the trial court had originally omitted to advise Appellant that he was subject to 

five years of mandatory post-release control. 

{¶7} On July 19, 2010, the trial court held the hearing and imposed the same 

original sentence. The trial court also reclassified Appellant as a Tier III sex offender 

under the Adam Walsh Act pursuant to R.C. 2950.01 et seq. 

{¶8} Appellant now appeals the resentencing, raising two Assignments of Error: 

{¶9} “I. APPELLANT’S SEXUAL OFFENDER CLASSIFICATION UNDER 

THE TIER SYSTEM WAS UNCONSTITUTIONAL AS DETERMINED BY THE OHIO 

SUPREME COURT IN STATE V. BODYKE (2010), 128 Ohio St.3d 266, 2010-Ohio2424. 

{¶10} “II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO 

CONSECUTIVE SENTENCES.” 

I. 

{¶1} In his first assignment of error, Appellant argues that the trial court erred 

by reclassifying Appellant as a Tier III sex offender during his resentencing on July 19, 

2010. Pursuant to State v. Bodyke, 128 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 

753, and State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio- 6238, 942 N.E.2d 332, 

Appellant is correct. Appellee concedes that Appellant’s Tier III sex offender 

designation needs to be vacated. 
Delaware County, Case Nos. 10-CA-61, 10-CA-62, & 10-CA-63 4 

{¶2} Appellant’s first assignment of error is sustained and that part of the entry 

from which this appeal is taken that reclassified Appellant as a Trier III sex offender is 

reversed, and his original status as a sexual predator is reinstated. 

II. 

{¶3} In Appellant’s second assignment of error, he argues that the trial court 

erred in sentencing him to consecutive sentences in 1998. 

{¶4} Appellant’s claims are without merit. The Ohio Supreme Court, in State v. 

Fischer, supra, stated that “(1) when a judge fails to impose statutorily mandated postrelease control as part of a defendant's sentence, that part of the sentence that was 

void must be set aside, and, 

{¶5} “(2) defendant's remaining claims, which did not involve a void sentence 

or judgment, were barred by res judicata; overruling State v. Bezak, 114 Ohio St.3d 94, 

2007-Ohio-3250, 868 N.E.2d 961.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio6238, 942 N.E.2d 332. 

{¶6} Accordingly, Appellant is precluded from contesting his consecutive 

sentences that were imposed in 1998. 

{¶7} Appellant’s second assignment of error is overruled. 
Delaware County, Case Nos. 10-CA-61, 10-CA-62, & 10-CA-63 5 

{¶8} For the foregoing reasons, the judgment of the Delaware County Court of 

Common Pleas is reversed with respect to Appellant’s first assignment of error and 

Appellant’s original sexual predator classification is reinstated. The second assignment 

of error is overruled. 

By: Delaney, J. 

Farmer, P.J. and 

Edwards, J. concur. 

HON. PATRICIA A. DELANEY 

HON. SHEILA G. FARMER 

HON. JULIE A. EDWARDS 

 
[Cite as State v. Mitchell, 2011-Ohio-1958.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

MARK A. MITCHELL : 

 : 

 Defendant-Appellant : Case No. 10-CA-61 

 : 

 For the reasons stated in our accompanying Memorandum-Opinion on file, the 

judgment of the Delaware County Court of Common Pleas is affirmed in part and 

reversed in part as to Appellant’s reclassification as a Tier III sex offender and his 

original sexual predator classification is reinstated. Costs assessed equally to Appellant 

and Appellee. 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

 _________________________________ 

 HON. SHEILA G. FARMER 

 _________________________________ 

 HON. JULIE A. EDWARDS 
 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

MARK A. MITCHELL : 

 : 

 Defendant-Appellant : Case No. 10-CA-62 

 : 

 For the reasons stated in our accompanying Memorandum-Opinion on file, the 

judgment of the Delaware County Court of Common Pleas is affirmed in part and 

reversed in part as to Appellant’s reclassification as a Tier III sex offender and his 

original sexual predator classification is reinstated. Costs assessed equally to Appellant 

and Appellee. 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

 _________________________________ 

 HON. SHEILA G. FARMER 

 _________________________________ 

 HON. JULIE A. EDWARDS 
 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

MARK A. MITCHELL : 

 : 

 Defendant-Appellant : Case No. 10-CA-63 

 : 

 For the reasons stated in our accompanying Memorandum-Opinion on file, the 

judgment of the Delaware County Court of Common Pleas is affirmed in part and 

reversed in part as to Appellant’s reclassification as a Tier III sex offender and his 

original sexual predator classification is reinstated. Costs assessed equally to Appellant 

and Appellee. 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

 _________________________________ 

 HON. SHEILA G. FARMER 

 _________________________________ 

 HON. JULIE A. EDWARDS