[Cite as State v. Abernathy , 2011-Ohio-1056.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, : Plaintiff-Appellee, : Case No. 10CA3341

vs. : PERCY J. ABERNATHY, III, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

_________________________________________________________________ APPEARANCES: APPELLANT PRO SE: Percy J. Abernathy, III, #549-410, P.O. Box 69, London, Ohio, 43140, Pro Se COUNSEL FOR APPELLEE: Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Scioto County Assistant Prosecuting Attorney, 602 Seventh Street, Room 310, Portsmouth, Ohio 45662

_________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 2-28-11 ABELE, J. {¶ 1} This is an appeal from a Scioto C ounty Common Pleas Court re-sentencing judgment. Percy J. Abernathy, III, defendant below and appellant herein, assigns the following

errors for review:

FIRST ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED DURING SENTENCING, WHEN IT FORCED DEFENDANT TO STICK TO A 9 YEAR SENTENCING AGREEMENT, AFTER JURY TRIAL, WHEN IT WAS OBVIOUS FROM THE RECORD AND THESCIOTO, 10CA3341 2

DEFENDANT THAT HE NO LONGER WANTED THE AGREEMENT AND THAT HE WANTED THE COURT TO CONSIDER THE APPLICABLE FACTORS TO DETERMINE WHETHER OR NOT HE QUALIFIED FOR A THREE YEAR MINIMUM/TIME SERVED SENTENCE DURING RESENTENCING.”

SECOND ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED DURING SENTENCING, WHEN IT FAILED TO PROPERLY NOTIFY THE DEFENDANT OF ALL THE APPLICABLE CONSEQUENCES FOR A POST RELEASE CONTROL VIOLATION IF HE WAS TO VIOLATE PRC AFTER BEING PLACED UPON IT BY THE PAROLE BOARD..”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN FAILING TO SUPPRESS EVIDENCE OBTAINED AS THE RESULT OF AN UNREASONABLE WARRANTLESS SEARCH AND SEIZURE.” {¶ 2} In 2007, appellant was convicted of (1) fi rst-degree felony possession of cocaine; (2) first-degree felony trafficking in crack cocai ne; (3) fifth-degree felony possession of cocaine; and (4) possession of criminal tools. The trial court sentenced appellant to serve: (1) a mandatory nine-year prison term for possession of cocaine; (2) a mandatory nine-year prison term for trafficking; (3) twelve months for the fifth-degree felony drug possession charge; and (4) twelve months for the possession of criminal tools. The court further ordered the sentences to be served consecutively for a total sentence of twenty years. {¶ 3} In State v. Abernathy , Scioto App. No. 07CA3160, 2008-Ohio- 2949, at ¶¶45-46 (Abernathy I ), we reversed appellant's sentence on th e grounds that the possession and trafficking of crack cocaine are allied offenses of similar import. The trial court issued a new judgment onSCIOTO, 10CA3341 3 July 2, 2008 and held that the trafficking a nd possession charges had merged and sentenced appellant to an aggregate total of eleven years. {¶ 4} Appellant commenced these particular proceedings on May 21, 2009 and argued that the re-sentencing is void because the trial court did not adequately inform him of post-release control. A sent encing hearing was then held on December 16, 2009, at which time the court conveyed that informa tion to appellant. The following day, the trial court issued another re-sentencing judgment that imposed an aggregate sentence of nine years and repeated the warning concerning postrelease control. On May 12, 2010, we granted a ppellant leave to file a delayed appeal, and the matter is properly before us for review.

I {¶ 5} Appellant’s first assignment of error appears to posit that the trial court erred in re-sentencing him. We agree, albeit for different reasons than appellant argues in his brief. {¶ 6} The 2009 re-sentencing entry modified th e 2008 re-sentencing entry by reducing the term of imprisonment from eleven years to nine. Once a valid sentence is carried into execution, a trial court has no jurisdiction to modify that sentence. State v. Garretson (2000), 140 Ohio App.3d 554, 558-559, 748 N.E.2d 560; State ex rel. Duffy v. Pittman , Portage App. No. 2006-P-0043, 2007-Ohio-346 at ¶9; State v. Young , Montgomery App. No. 20813, 2005-Ohio-5584, at ¶6. Of course, at the time appellant commenced the instant proceedings, the 2008 judgment was not valid as it did not contain notification about post-re lease control. See

State v. Bezak , 114 Ohio St.3d 94, 868 N.E.2d 961, 2007-Ohio-3250, at the syllabus. Thus, at

the time of the trial c ourt proceedings, the trial court did possess jurisdiction to modify that

sentence.SCIOTO, 10CA3341 4 {¶ 7} However, the Ohio Supreme Court recently modified the Bezak syllabus. See

State v. Fischer , ___ Ohio St.3d ___, ___ N.E.2d ___, 2010-Ohio -6238, at paragraph two of the syllabus. Now it appears that only the particular part of the sentence that fails to comply with the proper imposition of post-release control is void and re-sentencing must be limited to the proper imposition of that control. Id. at ¶¶28- 29. Because court decisions generally apply retrospectively, see e.g. DiCenzo v. A-Best Prods. Co., Inc. , 120 Ohio St.3d 149, 897 N.E.2d 132, 2008-Ohio-5327, at paragra ph one of the syllabus; also see State v. Akers (Sep. 9, 1999), Lawrence App No. 98CA33, at fn. 5, the trial court had no authority to do more than to comply with the post-release control requi rements. Appellant’s remaining eleven year prison sentence is still valid and the trial court had no authority (applying Fischer retrospectively) to modify that

sentence. {¶ 8} Therefore, we sustain appellant’s first assignment of error to this limited extent. The December 17, 2009 judgment will be vacat ed and the matter remanded for further proceedings consistent with this opinion.

II {¶ 9} Appellant asserts in his s econd assignment of error th at the court erred by not warning him of the consequences of violating his postrelease c ontrol. The appellee candidly concedes this error in its brief. Although th is error is technically moot, in view of our disposition of appellant's first assignment of error, we neve rtheless agree with appellee. {¶ 10} We acknowledge that the December 16, 2009 h earing transcript reveals that the trial court warned appella nt of “consequences” for "violating c onditions of post release control.” However, at the hearing no furt her explanation of those conse quences occurred. Further, theSCIOTO, 10CA3341 5 sentencing entry only specified that appellant was “ordered” to serve “any prison term for violation of that post release control.” Was this sufficient? We agree with the appellee that it is

not. {¶ 11} When imposing sentence, trial courts must notify an offender at the sentencing hearing that he will be supervised pursu ant to R.C. 2967.28 and, upon violating postrelease control, the parole board may im pose a prison term of up to one-hal f of the prison term originally imposed. See R.C. 2929.19(B)(3)(e). Our interpre tation of recent case law that applies this statute is that the potential for additional prison time must be explicitly spelled out. See e.g.

State v. Bloomer , 122 Ohio St.3d 200, 909 N.E.2d 1254, 2009-Ohio-2462, at ¶2; State v. Huber , Cuyahoga App. No. No. 93923, 2010-Ohio-5586, at ¶30. {¶ 12} Thus, we agree with the appellee it is insufficient to simply warn appellant that “consequences” would arise for vi olating postrelease control. Therefore, appellant's second assignment of error is well- taken and hereby sustained.

III {¶ 13} Appellant’s third assignment of error asserts the trial court committed reversible error by not granting his motion to suppress eviden ce during the original trial court proceedings. We disagree. {¶ 14} This is an issue that should have been pursued in Abnernathy I . The doctrine of res judicata bars an issue from being raised in a subsequent appeal if it was also raised, and disposed of on the merits, in a previous appeal. Moreover, an argument that could have been raised on a previous appeal, but wa s not, is also barred by the doctr ine of res judicata. The Ohio Supreme Court made clear in Fischer ,2010-Ohio-6238, at paragraph thr ee of the syllabus, that resSCIOTO, 10CA3341 6 judicata still applies to every other part of a sentencing judgment except those that fail to comply with post-release control requirements. {¶ 15} Accordingly, to the extent that this s uppression issue was raised in Abernathy I , See 2008-Ohio-2949, at ¶¶15-39, it cannot be considered again at this late date. To the extent that this issue could have been raised in Abernathy I , but was not, it is also overruled. The suppression issue cannot be considered again at this late date and appellant’s third assignment of error is hereby overruled. {¶ 16} Having sustained appellant’s first assignment of error to a limited extent, as well as his second assignment of error, the 2009 re-s entencing entry is vacated and this matter is hereby remanded for further proceedin gs consistent with this opinion.

JUDGMENT VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. JUDGMENT ENTRY It is ordered that the judgment be vacated and the case remanded for further proceedings consistent with this opinion. Appellant to recover of appellee costs herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appe llate Procedure. Harsha, P.J. & Kline, J.: C oncur in Judgment & Opinion

For the CourtSCIOTO, 10CA3341 7

BY: Peter B. Abele, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.