[Cite as State v. Andrews, 2011-Ohio-2462.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

STATE OF OHIO, CASE NO. 1-10-78 

 PLAINTIFF-APPELLEE, 

 v. 

SHAITON L. ANDREWS, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CR2004 0537 

Judgment Affirmed 

Date of Decision: May 23, 2011 

 

APPEARANCES: 

Shaiton L. Andrews, Appellant 

Christina L. Steffan for Appellee 
Case No. 1-10-78 

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PRESTON, J.

{¶1} Defendant-appellant, Shaiton L. Andrews (hereinafter “Andrews”), 

appeals the judgment of the Allen County Court of Common Pleas resentencing 

him to twenty-six (26) years in prison. For the reasons that follow, we affirm. 

{¶2} This case originated on January 13, 2005, when the Allen County 

Grand Jury returned an indictment against Andrews, charging him with two 

separate counts of aggravated robbery in violation of R.C. 2911.01(A)(1), felonies 

of the first degree. Each count of the indictment also contained a firearm 

specification pursuant to R.C. 2941.145(A). 

{¶3} On January 24, 2005, Andrews appeared in court for arraignment and 

entered pleas of not guilty. 

{¶4} On July 21, 2005, a hearing was held on a motion filed by Andrews’ 

counsel, which sought leave to withdraw from the case. The trial court found the 

motion to be well taken, and permitted Andrews’ counsel to withdraw. At that 

time, Andrews informed the trial court that he wished to represent himself. The 

trial court ordered that new counsel be appointed and ruled that it would take up 

Andrews’ request to go forward pro se after new counsel was appointed. 

{¶5} On August 15, 2005, following the appointment of new defense 

counsel, a hearing was held on Andrews’ request to represent himself. Again, 

Andrews repeated his desire to go forward pro se in the case. The trial court then 
Case No. 1-10-78 

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held a lengthy dialogue with Andrews, advising him of the potential problems of 

self-representation. Nevertheless, based on Andrews’ repeated insistence on 

representing himself, the trial court permitted Andrews to go forward pro se, on 

the condition that Andrews’ defense counsel stay on the case as “shadow counsel” 

to assist Andrews. 

{¶6} On August 29-30, 2005, a jury trial was held, and after the 

presentation of evidence, the jury returned a verdict finding Andrews guilty on 

both counts in the indictment, as well as findings of guilty on both of the firearm 

specifications. The matter then proceeded to sentencing. At the sentencing 

hearing, the trial court sentenced Andrews to ten (10) years in prison on each of 

the aggravated robbery counts and three (3) years in prison on each of the firearm 

specifications. All sentences were ordered to run consecutively, for an aggregate 

sentence of twenty-six (26) years in prison. 

{¶7} This Court affirmed Andrews’ conviction on July 24, 2006. State v. 

Andrews, 3d Dist. No. 1-05-70, 2006-Ohio-3764. 

{¶8} On October 25, 2010, Andrews filed a Motion for Resentencing 

claiming that his sentence was “void” because the trial court had failed to comply 

with the instructions pertaining to postrelease control pursuant to State v. Bezak, 

114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961 and other related cases. On 

October 26, 2010, the trial court granted Andrews’ motion. 
Case No. 1-10-78 

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{¶9} On November 17, 2010, a resentencing hearing was held, at which 

time, the trial court resentenced Andrews to ten (10) years in prison on each of the 

aggravated robbery counts, and three (3) years in prison on each of the firearm 

specifications. All sentences were again ordered to run consecutively, for an 

aggregate sentence of twenty-six (26) years in prison. In addition, the trial court 

advised Andrews that he was subject to five (5) years of mandatory postrelease 

control. 

{¶10} Andrews now appeals and raises the following assignment of error. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT ABUSED ITS DISCRETION IN 

IMPOSING A SENTENCE BASED ON IMPERMISSIBLE 

FACTORS NOT SUPPORTED BY THE RECORD AND 

INCONSISTENT AND NOT COMMENSURATE WITH 

SIMILAR OFFENDERS, AND CONTRARY TO LAW, IN 

VIOLATION OF DUE PROCESS. 

{¶11} In his only assignment of error, Andrews argues that the trial court 

abused its discretion in sentencing him to twenty-six (26) years in prison on two 

counts of aggravated robbery, each with a firearm specification. Andrews cites 

several reasons why he believes his sentence was unjust. First, Andrews claims 

that the trial court erred in finding that he had been part of an organized criminal 

activity. Andrews also claims that the trial court erred in referencing his juvenile 

record when it was sealed. Andrews additionally argues that the trial court based 

its decision on impermissible factors and failed to consider the relevant sentencing 
Case No. 1-10-78 

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factors. Moreover, Andrews claims that twenty-six (26) years is excessive for a 

robbery charge. Finally, Andrews asserts that consecutive sentences are expressly 

forbidden under R.C. 5145.01. 

{¶12} However, on December 23, 2010, the Ohio Supreme Court issued its 

decision in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, 

which clarified the errors that could be reviewed after a new sentencing hearing is 

held for purposes to correct a trial court’s failure to properly impose postrelease 

control. In Fischer, the Court abrogated parts of its decision in Bezak and held 

“that the new sentencing hearing to which an offender is entitled under Bezak is 

limited to proper imposition of postrelease control.” Id. at ¶29. The Court further 

held that “[a] sentence that does not include the statutorily mandated term of 

postrelease control is void, is not precluded from appellate review by principles of 

res judicata and may be reviewed at any time, on direct appeal or by collateral 

attack.” Id. at paragraph one of the syllabus. However, “res judicata still applies 

to other aspects of the merits of a conviction, including the determination of guilt 

and the lawful elements of the ensuing sentence.” Id. at paragraph three of the 

syllabus (emphasis added). 

{¶13} Consequently, under Fischer, when postrelease control is not 

properly included in a sentence for a particular offense, that sentence is void, but 

“only the offending portion of the sentence is subject to review and correction.” 
Case No. 1-10-78 

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Fischer, 2010-Ohio-6238, at ¶27. Furthermore, the doctrine of res judicata still 

applies to other aspects of a defendant’s case, including specifically “the lawful 

elements of the ensuing sentence.” Id. at paragraph three of the syllabus. 

{¶14} Here, the purpose of Andrews’ resentencing hearing was to correct 

the portion of the sentence pertaining to postrelease control. As this Court has 

previously stated, a defendant’s resentencing hearing under Bezak “cannot be used 

as a vehicle to reopen all other aspects of his case.” State v. Giffin, 3d Dist. No. 1-

10-27, 2011-Ohio-1462, ¶9. Thus, any issues raised on appeal from Andrews’ 

resentencing hearing must be limited to the subject of postrelease control; 

however, Andrews’ assignment of error is not related to postrelease control. 

Furthermore, we find that the issues raised by Andrews in this appeal are barred 

by res judicata since they could have been raised in the trial court at his original 

sentencing or in this Court in his direct appeal of his conviction and sentence. See 

State v. Bregen, 12th Dist. No. 2010-06-039, 2011-Ohio-1872, ¶27. 

{¶15} Therefore, Andrews’ assignment of error is overruled. 

{¶16} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

SHAW and WILLAMOWSKI, J.J., concur. 

/jnc