[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 County 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 THE 
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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) first-degree felony possession of cocaine; 

(2) first-degree felony trafficking in crack cocaine; (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 the grounds that the possession and trafficking 

of crack cocaine are allied offenses of similar import. The trial court issued a new judgment on 
SCIOTO, 10CA3341 3

July 2, 2008 and held that the trafficking and 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 sentencing hearing was then held on December 16, 2009, at which time 

the court conveyed that information 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 appellant 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 the 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-release 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 court proceedings, the trial court did possess jurisdiction to modify that 

sentence. 
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{¶ 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 paragraph 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 requirements. 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 vacated and the matter remanded for further 

proceedings consistent with this opinion. 

 II 

{¶ 9} Appellant asserts in his second assignment of error that the court erred by not 

warning him of the consequences of violating his postrelease control. The appellee candidly 

concedes this error in its brief. Although this error is technically moot, in view of our 

disposition of appellant's first assignment of error, we nevertheless agree with appellee. 

{¶ 10} We acknowledge that the December 16, 2009 hearing transcript reveals that the 

trial court warned appellant of “consequences” for "violating conditions of post release control.” 

However, at the hearing no further explanation of those consequences occurred. Further, the 
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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 pursuant to R.C. 2967.28 and, upon violating postrelease 

control, the parole board may impose a prison term of up to one-half of the prison term originally 

imposed. See R.C. 2929.19(B)(3)(e). Our interpretation 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 violating 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 evidence 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 was not, is also barred by the doctrine of res judicata. The Ohio 

Supreme Court made clear in Fischer,2010-Ohio-6238, at paragraph three of the syllabus, that res 
SCIOTO, 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 suppression 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-sentencing entry is vacated and this matter is 

hereby remanded for further proceedings 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 reasonable 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 Appellate Procedure. 

Harsha, P.J. & Kline, J.: Concur in Judgment & Opinion 

For the Court 
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BY: 

 Peter B. Abele, Judge 

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the 

time period for further appeal commences from the date of filing with the clerk.