[Cite as State v. Santiago, 2011-Ohio-3059.]

 Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 95564 

STATE OF OHIO 

PLAINTIFF-APPELLEE

vs. 

ANIBAL SANTIAGO

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-348400 

BEFORE: Stewart, J., Kilbane, A.J., and Boyle, J. 

RELEASED AND JOURNALIZED: June 23, 2011 
 

ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Cuyahoga County Public Defender 

BY: John T. Martin 

 Assistant Public Defender 

310 Lakeside Avenue, Suite 400 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Diane Smilanick 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 8th Floor 

Cleveland, OH 44113 

MELODY J. STEWART, J.: 

{¶ 1} Defendant-appellant, Anibal Santiago, appeals his resentencing 

by the Cuyahoga County Court of Common Pleas. Following review of the 

record and for the reasons stated below, we affirm. 

{¶ 2} In 1997, Santiago was indicted on two counts of aggravated 

murder and one count of aggravated burglary. All counts included a 

three-year firearm specification. Santiago pleaded not guilty and the case 
proceeded to trial. After the trial had commenced, Santiago changed his 

mind and decided to plead guilty to amended counts of involuntary 

manslaughter, felonious assault, and aggravated burglary. In the amended 

indictment, only Count 1 included a firearm specification. The trial court 

accepted Santiago’s plea and sentenced him to 13 years on Count 1, two years 

on Count 2, and ten years on Count 3. The court ordered all terms served 

consecutively for a total of 25 years in prison. Santiago did not appeal this 

conviction. 

{¶ 3} In 1998, Santiago filed a motion to withdraw his guilty plea. He 

filed another motion to withdraw his plea in 1999. Both motions were 

denied. In 2009, Santiago filed a motion for a new sentencing hearing 

claiming that the 13-year sentence on Count 1 was illegal, the court failed to 

properly impose postrelease control (PRC), and the court failed to merge 

allied offenses. This motion was also denied. Santiago’s appeal of the trial 

court’s order denying the motion was dismissed by this court as untimely filed 

on February 2, 2010. 

{¶ 4} On July 13, 2010, at the request of the Adult Parole Authority, 

the trial court conducted a resentencing hearing. The court explained that 

the purpose of the hearing was to correct an error in the original sentencing 

entry that failed to differentiate between the prison term imposed for the 

base charge of involuntary manslaughter and the term imposed for the 
firearm specification included with that charge. The court offered appellant 

the opportunity to withdraw his plea or to go forward with resentencing. 

Appellant opted for resentencing and asked the court to impose a lesser 

sentence. He informed the court that he was a first time offender, had 

agreed to plead guilty, and that his co-defendants had all received a less 

severe sentence and been released. The court reiterated that the only 

purpose of the hearing was to correct the error in the original sentencing 

entry. 

{¶ 5} The court proceeded to impose the same 25-year total sentence, 

this time specifying that it consisted of ten years on the base charge in Count 

1, three years on the firearm specification attached to Count 1, two years on 

Count 2, and ten years on Count 3. The court also properly imposed a 

mandatory term of five years postrelease control and advised Santiago of the 

consequences for a violation of PRC. 

{¶ 6} Santiago timely appeals from the July 16, 2010 judgment, raising 

four errors for our review. Because the first two assignments of error are 

substantially interrelated, we address them together. 

{¶ 7} In his first assignment of error, Santiago argues that due to the 

unnecessary delay in sentencing, the trial court lacked authority to sentence 

him. He contends that because the court failed to impose postrelease control 

in 1997, his original sentence is void. When a sentence is void, Santiago 
contends, it is as if it had never occurred. Therefore, he concludes, there is a 

13-year delay between the time he entered his plea and the actual imposition 

of sentence. He argues that such a delay in sentencing violates Crim.R. 

32(A), which provides that: “[s]entence shall be imposed without 

unnecessary delay.” 

{¶ 8} In his second assignment of error, Santiago argues that because 

his 1997 sentence is void and a nullity, he is entitled to a de novo sentencing 

that includes the consideration of a lesser sentence. 

{¶ 9} The argument that there was an unnecessary delay in sentencing 

is without merit. This court has rejected the same argument in State v. 

King, 8th Dist. No. 95233, 2011-Ohio-1079, where we stated, “[t]he 

circumstances here do not implicate Crim.R. 32(A) as this is not a case where 

the trial court refused to sentence [the defendant]. Where there is a delay 

between the sentence and a resentencing occasioned by the failure to include 

a required term of postrelease control in the original entry, such matter 

involves the correction of a void sentence and not a delay in imposing the 

original sentence.” Id. at ¶2 citing to, State v. Jaffal, Cuyahoga App. No. 

93142, 2010-Ohio-4999. See, also, State v. Mundy, 9th Dist. No. 

10CA0039-M, 2011-Ohio-1157. 

{¶ 10} Additionally, the Ohio Supreme Court’s recent holding in State v. 

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, governs this 
case. In Fischer, the 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 ¶25. “[O]nly the 

offending portion of the sentence is subject to review and correction.” Id. at 

¶27. “[T]he new sentencing hearing to which an offender is entitled [for 

failure to properly include postrelease control] is limited to proper imposition 

of postrelease control.” Id. at ¶29. 

{¶ 11} Pursuant to Fischer, “the postrelease control component of the 

sentence is fully capable of being separated from the rest of the sentence as 

an independent component, and the limited resentencing must cover only the 

postrelease control. * * * The remainder of the sentence, which the 

defendant did not successfully challenge, remains valid under the principles 

of res judicata.” Fischer, ¶17 (quoting State v. Bezak, 114 Ohio St.3d 94, 

2007-Ohio-3250, 868 N.E.2d 961, ¶22 (O’Connor, J., dissenting, joined by 

Lundberg Stratton, J.)). 

{¶ 12} Applying the holding in Fischer to the facts of the instant case, we 

find that because the 1997 sentencing entry did not include the statutorily 

mandated term of postrelease control, that part of the sentence was void and 

needed to be corrected. The entire sentence, however, is not a nullity and a 

de novo sentencing was not warranted. Instead, the court was required to 

conduct a limited resentencing to correct the postrelease control error. The 
remainder of the 1997 sentence, which Santiago did not appeal, remains 

valid. Accordingly, the first and second assignments of error are overruled. 

{¶ 13} In his third assignment of error, Santiago challenges his 

convictions and argues that the trial court erred by not considering whether 

the counts of conviction were allied offenses of similar import subject to 

merger. He contends that because the offenses were potentially allied, the 

court should have held a hearing on the issue before imposing sentence. 

{¶ 14} This argument is barred by the doctrine of res judicata. Under 

the doctrine, “a final judgment of conviction bars the convicted defendant 

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, 180, 226 N.E.2d 104. 

{¶ 15} As noted above, Santiago’s 1997 conviction is valid except as to 

postrelease control. Santiago could have, but did not, raise the issue of 

potentially allied offenses through a direct appeal of his conviction. Having 

failed to do so, res judicata now bars him from raising the issue in this 

appeal. The third assignment of error is overruled. 

{¶ 16} In his fourth assignment of error, Santiago argues that the trial 

court erred in imposing consecutive sentences without making the specific 
judicial findings required by R.C. 2929.14(E)(4). Santiago acknowledges that 

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, held that 

such findings were no longer required. However, he argues that the Foster

remedy of excising sentencing sections that require findings is no longer 

necessary as a result of the United States Supreme Court’s decision in Oregon 

v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, which held that 

judicial fact-finding with respect to consecutive terms of imprisonment does 

not violate the Sixth Amendment. Santiago contends that the judicial 

findings mandated by R.C. 2929.14(E) are still operative and absent such 

findings his consecutive sentences must be vacated. 

{¶ 17} The Ohio Supreme Court has rejected this argument. State v. 

Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768. In Hodge, the 

court held that, “[a]fter Ice, it is now settled law * * * that the jury-trial 

guarantee of the Sixth Amendment to the United States Constitution does 

not preclude states from requiring trial court judges to engage in judicial 

fact-finding prior to imposing consecutive sentences.” Id. at ¶19. However, 

the court went on to hold that the decision in Ice “does not revive Ohio’s 

former consecutive-sentencing statutory provisions * * * which were held 

unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 

N.E.2d 470.” Hodge at paragraph two of the syllabus. Accordingly, 

appellant’s fourth assignment of error is overruled. 
Judgment affirmed. 

It is ordered that appellee recover of appellant its costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure.

 

MELODY J. STEWART, JUDGE 

MARY EILEEN KILBANE, A.J., and 

MARY J. BOYLE, J., CONCUR