[Cite as State v. Barclay , 2011-Ohio-4770.]

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

STATE OF OHIO Appellee

v.

MARK A. BARCLAY Appellant C.A. No. 25646

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 02 02 0305(C)

DECISION AND JOURNAL ENTRY Dated: September 21, 2011

CARR, Presiding Judge. {¶1} Appellant, Marc A. Barclay, appeals th e judgment of the Summit County Court of Common Pleas. This Court affirms, in part, and vacates, in part.

I. {¶2} On February 12, 2002, Barclay was indicted by the Summit County Grand Jury on one count of aggravated murder, in violati on of R.C. 2903.01(A); two counts of kidnapping in violation of R.C. 2905.01(A)(3); and one count of abuse of a co rpse in violation of R.C. 2927.01(B). The State subsequently moved to ame nd the indictment, and th e trial court granted the motion. The aggravated murder charge, as co ntained in the original indictment, was reduced

to the lesser included offense of murder. The case proceeded to trial. On October 25, 2002, the jury returned guilty verdicts on all count s and Barclay was sentenced thereafter.2

{¶3} Barclay filed a notice of appeal on N ovember 22, 2002. This Court affirmed Barclay’s convictions on October 15, 2003. State v. Barclay , 9th Dist. No. 21336, 2003-Ohio5468. {¶4} On July 12, 2010, Barclay filed a motion to discharge. In responding to the motion, the State acknowledged that the 2002 se ntencing entry did not properly impose postrelease control and requested that Barclay be resentenced de novo. The trial court conducted a resentencing hearing on August 25, 2010, and s ubsequently issued a sentencing entry on September 20, 2010. Barclay filed a no tice of appeal on October 20, 2010. {¶5} On appeal, Barclay raises three assignments of error.

II.

ASSIGNMENT OF ERROR I

“THE TRIAL COURT ERRED IN NOT DISMISSING THE APPLELLANT’S INDICTMENT(S) THAT ARE CONSTITUTIONALLY INSUFFICIENT TO CHARGE ANY CRIMINAL OFFENSE WHATSOEVER UNDER OHIO LAW, VIOLATING APPELLANT’S RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND SECTION 10 ARTICLE I OF THE OHIO CONSTITUTION[.]” {¶6} In his first assignment of error, Barclay argues that the trial court erred in not dismissing the indictment. This Court disagrees. {¶7} In support of his first assignment of erro r, Barclay argues that the indictment

contained several defects which re ndered it insufficient to charge an offense. The State counters that because Barclay did not raise these claims on direct appeal, he is now barred from raising the issue on the basis of res judicata. {¶8} “A determination of whether the doctrin e of res judicata bars an action is a question of law which this Court reviews de novo.” Brott v. Green , 9th Dist. No. 21209, 2003- Ohio-1592, at ¶11, citing Davis v. Coventry Twp. Bd. of Zoning Appeals (Feb. 14, 2001), 9th3

Dist. No. 20085; Payne v. Cartee (1996), 111 Ohio App.3d 580, 586-587. When reviewing a matter de novo, this court does not give de ference to the trial court’s decision. State v. Stallings , 150 Ohio App.3d 5, 2002-Ohio-5942, at ¶6. {¶9} In State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus, the Supreme Court of Ohio articulated the para meters 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 rais ed or could have been raised by the defendant at the trial, wh ich resulted in that judgme nt of conviction, or on an appeal from that judgment.” {¶10} (Emphasis added.) This Court has reco gnized that, by the plain language of Perry , “the doctrine of res judicata is directed at procedurally ba rring 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. {¶11} Barclay exercised his right to appeal to this Court in 2002. On appeal, Barclay raised one assignment of error in which he argued that his convictions we re against the manifest weight of the evidence. This Court affirm ed Barclay’s convictions on October 15, 2003. State v. Barclay , 9th Dist. No. 21336, 2003-Ohio-5468. As Barclay did not raise any issues with the indictment in his appeal of right, he is now barr ed from raising that issue in a subsequent action.

Widman , supra. {¶12} The first assignment of error is overruled.

ASSIGNMENT OF ERROR II

“THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES ON THE APPELLANT WHEN NO STATUTORY AUTHORITY EXIST[S] FOR THE IMPOSITION OF SUCH, VIOLATING THE APPELLANT’S CONSTITUTIONAL RIGHTS PURSUANT TO THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES4

CONSTITUTION, AND ARTICLE I SECTION 16 & ARTICLE IV SECTION 10 OF THE OHIO CONSTITUTION[.]”

ASSIGNMENT OF ERROR III

“THE TRIAL COURT ERRED IN IMPOSING ANY SENTENCE UPON APPELLANT DUE TO THE UNREASONABLE DELAY IN IMPOSING A VALID SENTENCE WHICH RESULTED IN A LOSS OF JURISDICTION, VIOLATING APPELLANT’S RIGHT TO DUE PROCESS UNDER THE UNITED STATES AND OHIO CONSTITUTION[.]” {¶13} In his second assignment of error, Barclay argues that the trial court was without authority to impose consecutive sentences. In his final assignment of error, Barclay argues that

the trial court was without author ity to resentence him due to unreasonable delay. This Court disagrees with both propositions. {¶14} We address Barclay’s second and third assignments of e rror together as both deal

with the trial court’s au thority to impose sentence. In support of his second assignment of error, Barclay argues that the trial court was without authority to impose consecutive sentences without first making certain findings of fact. Barclay fu rther argues that the Supreme Court of Ohio’s

decision in State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, is unconstitutional and “nothing more than judicial expansion of jurisdiction by fiat, as it relates to consecutive sentences.” In support of his third assignment of error, Barc lay argues that the trial court was without jurisdiction to resentence him in 2010 because ther e was an unreasonable delay between the time he was found guilty and the time a la wful sentence was imposed. Ba rclay contends that the trial court failed to comply with R.C. 2967.28 in senten cing him in 2002 and, therefore, his original sentence was void. Barclay concludes that because he was not given a lawful sentence until 2010, his resentencing violated his rights under Crim.R. 32(A). {¶15} The Supreme Court of Ohio has held th at an error in post-release control

notification does not result in a void sentence. State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-5

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. Th e new sentencing hearing that a defendant is entitled to “is limited to proper imposition of postrel ease 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 th e ensuing sentence.” Id. at paragraph three of the syllabus. {¶16} 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, 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, 2011-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 Suprem e 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. {¶17} This case does not involve a scenario wh ere the trial court refused to impose a sentence on an offender. Rather, Barclay was sentenced immediately after he was found guilty6

in 2002. As noted above, Barclay appealed his convictions to this Court and raised one assignment of error relating to the weight of the evidence. This Court affirmed Barclay’s

convictions. Barclay , supra. Nearly eight years afte r he was convicted, on July 12, 2010, Barclay filed a motion to be discharged on the ba sis that he had not been properly notified of post-release control and, therefore, the trial cour t was without jurisdiction to sentence him. In responding to the motion on July 16, 2010, the State ar gued that while there had, in fact, been an error in notifying Barclay of post-release contro l, the appropriate reme dy was to conduct a de novo resentencing hearing. On July 23, 2010, the tr ial court issued a journal entry ordering the Summit County Sheriff to return Barclay for re sentencing. The trial court subsequently conducted a resentencing hearing on August 25, 2010, and issued a new sentencing entry on September 20, 2010. In accordance with Fischer , the scope of the new sentencing hearing to which Barclay was entitled was limited to the proper imposition of post-release control. Fischer , at paragraph two of the syllabus. Likewise, the scope of Barclay’s appeal from that hearing is limited solely to issues relating to the imposition of post-release control. Id. at paragraph four of the syllabus. It follows that the trial court had authority to impose the proper term of post-release control on Barclay at the August 25, 2010 hearing. As the lawful portion of Barclay’s original sentence remained in place pursuant to Fischer , the trial court did not ha ve authority to conduct a de novo sentencing hearing and reissue a sentence. Furthermore, as the lawful elements of Barclay’s original sentence remained in place, Ba rclay 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 contro l upon Barclay at the resentencing hearing, its judgment is affirmed. To the extent the tria l court conducted a de novo sentencing hearing and reissued a sentence to Barclay, its judgme nt in that respect is vacated.7

III. {¶18} Barclay’s first assignment of error is overruled. With respect to the second and third assignments of error, the judgment of the Summit County Court of Common Pleas is vacated to the extent the court exceeded its authority and resentenced Barclay. The trial court’s decision to properly impose a mandatory five-yea r period of post-release control on Barclay’s

sentence is affirmed. 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 manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent 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 COURT8

WHITMORE, J. MOORE, J. CONCUR

APPEARANCES: MARK A. BARCLAY, Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.