[Cite as State v. Tomlinson, 2014-Ohio-5019.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellee 

 v. 

DARREN JEFFREY TOMLINSON 

 Appellant 

C.A. No. 27181 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR 10 08 2231 (A) 

DECISION AND JOURNAL ENTRY

Dated: November 12, 2014 

 

WHITMORE, Judge. 

{¶1} Appellant, Darren Tomlinson, appeals from the judgment of the Summit County 

Court of Common Pleas. This Court affirms. 

I 

{¶2} In March 2011, Tomlinson was convicted of two counts of possession of cocaine, 

three counts of having weapons while under disability, and one count of possessing criminal 

tools. See State v. Tomlinson, 9th Dist. Summit No. 25924, 2013-Ohio-3520, ¶ 2-3. The trial 

court sentenced Tomlinson to eleven years in prison, and Tomlinson appealed. Id. at ¶ 3-4. In 

March 2012, this Court affirmed his convictions. See State v. Tomlinson, 9th Dist. Summit No. 

25924, 2012-Ohio-1441, ¶ 1, vacated by, Tomlinson, 2013-Ohio-3520. 

{¶3} Subsequently, Tomlinson sought to reopen his appeal based on ineffective 

assistance of appellate counsel. This Court granted his motion to reopen and appointed him 

appellate counsel. On October 1, 2012, through counsel, Tomlinson filed his appellant’s brief. 
2 

 

In his brief, he raised three assignments of error, each related to the imposition of fines and costs. 

See Tomlinson, 2013-Ohio-3520, at ¶ 6, 9. In August 2013, this Court vacated its March 2012 

decision, sustained his three assignments of error, and reversed and remanded the case for 

resentencing. See id. at ¶ 1, 13. 

{¶4} On remand, the court held a new sentencing hearing. The court re-imposed 

Tomlinson’s 11-year prison sentence and, based on a finding that he was indigent, waived costs 

and declined to impose the mandatory fine. Tomlinson now appeals from his resentencing and 

raises five assignments of error for our review. 

II 

Assignment of Error Number One 

THE TRIAL COURT DENIED TOMLINSON HIS RIGHTS TO DUE 

PROCESS AND A FAIR TRIAL WHEN IT ALTERED EVIDENCE IN 

VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS 

TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 

AND 16, OF THE OHIO CONSTITUTION. 

Assignment of Error Number Two

TOMLINSON’S POSSESSION OF COCAINE CONVICTIONS WERE NOT 

SUPPORTED BY SUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE 

PROCESS CLAUSE OF THE 5TH AND 14TH AMENDMENTS TO THE U.S. 

CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO 

CONSTITUTION[.] 

Assignment of Error Number Three 

TOMLINSON’S POSSESSION OF COCAINE CONVICTIONS WERE 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION 

OF THE DUE PROCESS CLAUSE OF THE 5TH AND 14TH AMENDMENTS 

TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF 

THE OHIO CONSTITUTION. 
3 

 

Assignment of Error Number Four 

THE TRIAL COURT ERRED BY IMPOSING FIVE YEAR SENTENCES FOR 

THIRD-DEGREE FELONY CONVICTIONS, IN VIOLATION OF THE FIFTH 

AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION AND 

ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. 

Assignment of Error Number Five 

THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES 

UPON TOMLINSON, IN VIOLATION OF THE FIFTH AND FOURTEENTH 

AMENDMENTS OF THE U.S. CONSTITUTION AND ARTICLE I, SECTION 

10 OF THE OHIO CONSTITUTION. 

{¶5} In his first assignment of error, Tomlinson argues that the trial court erred in 

altering an exhibit after it had been stipulated to and admitted into evidence. In his second and 

third assignments of error, Tomlinson argues that his convictions for possession of cocaine are 

not supported by sufficient evidence and are against the manifest weight of the evidence. In his 

fourth assignment of error, he argues that the court erred in not applying the current sentencing 

statute when resentencing him. Lastly, in his fifth assignment of error, Tomlinson argues that the 

court erred when it did not make the required statutory findings when it imposed consecutive 

sentences. We do not reach the merits of Tomlinson’s arguments because we conclude that they 

are all beyond the scope of his resentencing. 

{¶6} In his reopened appeal, we concluded that the trial court erred when it failed to 

comply with R.C. 2947.23 when imposing costs. Tomlinson, 2013-Ohio-3520, at ¶ 6-8. 

Because the court failed to comply with the statute, “we reverse[d] the trial court’s imposition of 

court costs and remand[ed] for the proper imposition of court costs in accordance with the 

requirements set forth in R.C. 2947.23(A)(1).” (Internal quotation and citation omitted.) Id. at ¶ 

8. The court’s failure to comply with R.C. 2947.23 did not render Tomlinson’s entire sentence 

void. See State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, ¶ 22. 
4 

 

{¶7} We further concluded, in that reopened appeal, that the court had erred when it 

imposed a mandatory financial sanction without determining Tomlinson’s “present and future 

ability to pay,” in violation of former R.C. 2929.19(B)(6). Tomlinson, 2013-Ohio-3520, at ¶ 9-

12. We, therefore, reversed and remanded the case for resentencing in compliance with the 

statute. This, however, did not render his entire sentence void. See State v. Moore, 135 Ohio 

St.3d 151, 2012-Ohio-5479, syllabus. Tomlinson’s sentence was only reversed as to the 

imposition of fines and costs, and his resentencing was limited to these matters. See id. at ¶ 17; 

Joseph at ¶ 24.

{¶8} “The scope of an appeal from a new sentencing hearing is limited to issues that 

arise at the new sentencing hearing.” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, ¶ 

30. Because Tomlinson’s resentencing was limited to the imposition of fines and costs, he is 

limited to these issues in this appeal from his resentencing. See id. at ¶ 15, citing State v. Saxon, 

109 Ohio St.3d 176, 2006-Ohio-1245, paragraph three of the syllabus (“[T]he sentences for any 

offenses that were not affected by the appealed error are not vacated and are not subject to 

review.”). Tomlinson, however, does not raise any argument about fines and costs. Tomlinson’s 

assignments of error are related to issues outside the scope of the remand for resentencing, and 

therefore, are outside the scope of this appeal. See State v. Williams, 9th Dist. Summit No. 

27101, 2014-Ohio-1608, ¶ 18.

{¶9} Tomlinson’s assignments of error are overruled. 

III 

{¶10} Tomlinson’s assignments of error are overruled. The judgment of the Summit 

County Court of Common Pleas is affirmed. 
5 

 

Judgment affirmed. 

 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(C). 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 

HENSAL, P. J. 

CONCURS.

MOORE, J. 

DISSENTING.

{¶11} Because I believe this Court can consider all of the assignments of error that Mr. 

Tomlinson has presented on appeal, I respectfully dissent from this Court’s decision. 
6 

 

{¶12} Mr. Tomlinson presented this Court with several assignments of error in his first 

appeal. After his conviction was affirmed, Mr. Tomlinson filed his pro se application to reopen. 

This Court concluded that he had shown a genuine issue as to whether he was deprived of the 

effective assistance of counsel on appeal with respect to only one of the proposed assignments of 

error. This Court granted his application for reopening on that basis alone (pursuant to App.R. 

26(B)(7), which grants an appellate court discretion to limit its review to those assignments of 

error that were not previously considered), reinstated the appeal, and appointed new appellate 

counsel. State v. Tomlinson, 9th Dist. Summit No. 25924, July 10, 2012 Journal Entry at 6. Mr. 

Tomlinson’s new appellate counsel raised three assignments of error, all related to the fines and 

costs issue on which this Court granted reopening. This Court found that Mr. Tomlinson’s first 

appellate counsel was ineffective, vacated its prior judgment, reversed the trial court’s judgment, 

and remanded for resentencing, as required by App.R. 26(B)(9). 

{¶13} This Court granted Mr. Tomlinson’s application to reopen because he 

demonstrated a genuine issue as to whether he was deprived of the effective assistance of 

counsel on appeal. App.R. 26(B) requires this Court, if it finds that appellate counsel was 

ineffective, to vacate its prior judgment. When combined with limiting his reopened appeal to 

the fines and costs issues, the end result is that Mr. Tomlinson’s direct appeal as of right has been 

limited to only the fines and costs issue. This result could not have been the intent of the 

Supreme Court when it decided State v. Murnahan, 63 Ohio St.3d 60 (1992), the case that lead to 

the adoption of App.R. 26(B). 

{¶14} The Murnahan Court focused on doing justice, going so far as to limit the 

application of res judicata if it would be unjust. State v. Davis, 119 Ohio St.3d 422, 2008-Ohio4608, ¶ 10, citing Murnahan. “App.R. 26(B) creates a special procedure for a thorough 
7 

 

determination of a defendant’s allegations of ineffective assistance of counsel. The rule creates a 

separate forum where persons with allegedly deficient appellate counsel can vindicate their 

rights.” Davis at ¶ 26. It seems to be an odd result that this Court can allow the defendant to 

vindicate his right to the effective assistance of counsel only to then bar him from raising a 

meritorious claim because this Court has limited the issues that can be raised in the reopened 

appeal. 

{¶15} I agree with the majority that, on the surface, it appears that this case is controlled 

by State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669. Mr. Tomlinson has raised issues that 

did not arise at his resentencing hearing. Under the circumstances of this case, however, justice 

requires us to limit the application of res judicata, see Murnahan, and address Mr. Tomlinson’s 

assignments of error. I would sustain Mr. Tomlinson’s first assignment of error1

 which would 

render the remaining assignments of error moot. 

APPEARANCES:

JEREMY A. VEILLETTE, Attorney at Law, for Appellant. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant 

Prosecuting Attorney, for Appellee. 

 1

 I would sustain this assignment of error for the reasons I articulated in my dissenting 

opinion in his original appeal. State v. Tomlinson, 9th Dist. Summit No. 25924, 2012-Ohio-1441. 

Pursuant to App.R. 26(B)(9), however, this Court was required to vacate that decision when it 

found he received ineffective assistance of appellate counsel in that appeal. State v. Tomlinson, 

9th Dist. No. 25924, 2013-Ohio-3520, ¶ 5. For the sake of brevity, I will not repeat my entire 

dissent here. In short, “a party is estopped from seeking redaction of its own evidence that has 

been previously admitted in its complete form upon stipulation of the opposing party. Applying 

this standard to similar pertinent facts in the present case, I would say that the trial court erred in 

redacting the subject line from the forensic report.” Tomlinson, 2012-Ohio-1441, at ¶ 55, 

vacated, Tomlinson, 2013-Ohio-3520, at ¶ 5.