[Cite as State v. Oweis, 2012-Ohio-443.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellant 

-vsOSAMA J. OWEIS 

 Defendant-Appellee 

JUDGES: 

Hon. W. Scott Gwin, P. J. 

Hon. John W. Wise, J. 

Hon. Patricia A. Delaney, J. 

Case No. 11 CAA 06 0050 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 06 CR I 11 513 

JUDGMENT: Affirmed in Part; Reversed in Part and 

 Remanded 

DATE OF JUDGMENT ENTRY: February 6, 2012 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

CAROL HAMILTON O'BRIEN BRIAN G. JONES 

PROSECUTING ATTORNEY THE LAW OFFICE OF BRIAN JONES 

BRIAN J. WALTER 2211 U.S. Highway 23 North 

ASSISTANT PROSECUTOR Delaware, Ohio 43015 

140 North Sandusky Street 

Delaware, Ohio 43015 
Wise, J. 

{¶1} Appellant/Cross-Appellee State of Ohio appeals the decision of the Court 

of Common Pleas, Delaware County, following a re-sentencing of DefendantAppellee/Cross-Appellant Osama J. Oweis. The relevant facts leading to this appeal are 

as follows. 

{¶2} On August 10, 2007, appellee was convicted by a jury on one count of 

aggravated robbery, in violation of R.C. 2911.01(A)(1), a felony of the first degree; one 

count of grand theft, in violation of R.C. 2913.02(A)(1), a felony of the fifth degree; and 

two counts of kidnapping, in violation of R.C. 2905.01(A)(2), both felonies of the second 

degree. 

{¶3} The trial court originally sentenced appellee on October 1, 2007. Based on 

sentencing memoranda submitted by the parties, the trial court did not sentence 

appellee on the aggravated robbery conviction. However, the trial court sentenced 

appellee to a total of seventeen years in prison on the kidnapping and grand theft 

convictions. The trial court informed appellee at the sentencing hearing and journalized 

in the sentencing entry that as part of his sentence, postrelease control in this case was 

discretionary for up to three years. 

{¶4} On July 15, 2010, the trial court filed a Nunc Pro Tunc Judgment Entry on 

Sentence pursuant to State v. Baker, 119 Ohio St.3d 197, 2008–Ohio–3330. The 

judgment entry corrected the October 1, 2007 sentencing entry as to the term of 

appellee’s postrelease control (“PRC”). The nunc pro tunc sentencing entry stated that 

appellee was subject to a mandatory term of postrelease control of three years. See 
R.C. 2967.28(B)(2). The trial court did not conduct a resentencing hearing before 

issuing the judgment entry. 

{¶5} Appellee thereupon appealed to this Court. On March 30, 2011, we 

reversed and remanded for a resentencing hearing regarding the trial court’s nunc pro 

tunc entry of July 15, 2010. 

{¶6} On May 4, 2011, the trial court conducted a resentencing hearing pursuant 

to our remand. On May 12, 2011, the trial court issued an entry sentencing appellee to 

eight years in prison on each of the two kidnapping counts, to be served consecutively 

to each other. As to the theft count, the trial the court sentenced appellee to serve 

twelve (12) months in prison, to be served concurrent to the kidnapping counts. Thus, 

appellee’s original sentence from October 1, 2007 was reduced by one year to a total of 

sixteen years. 

{¶7} On June 2, 2011, Appellant State of Ohio filed a notice of appeal. It herein 

raises the following sole Assignment of Error: 

{¶8} “I. THE TRIAL COURT ERRED IN RECONSIDERING THE 

DEFENDANT’S ORIGINAL SENTENCE DURING A RESENTENCING HEARING 

LIMITED SOLELY TO THE ISSUE OF THE PROPER IMPOSITION OF POSTRELEASE CONTROL.” 

{¶9} Appellee has raised the following sole Assignment of Error in his crossappeal: 

{¶10} “APPELLEE WAS DENIED DUE PROCESS OF LAW UNDER THE 

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND 
ARTICLE I SECTION 16 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT 

IMPOSED CONSECUTIVE SENTENCES FOR BOTH KIDNAPPING CONVICTIONS.” 

State’s Appeal

I. 

{¶11} In its sole Assignment of Error, Appellant State of Ohio contends the trial 

court erred in reconsidering the terms of appellee’s original sentence when it conducted 

a PRC resentencing hearing. We agree. 

{¶12} The Ohio Supreme Court has held that if a defendant is under a sentence 

in which post-release control was not properly rendered, only the offending portion of 

the sentence dealing with post-release control is subject to review and correction. See 

State v. Fischer, 128 Ohio St.3d 92, 942 N.E.2d 332, 2010–Ohio–6238. The new 

sentencing hearing to which the offender is entitled is limited to the issue of post-release 

control. Id. 

{¶13} Most recently, in a State’s appeal raising a similar issue of sentence 

alteration in the context of a PRC resentencing, we applied Fischer and held that the 

trial court was not authorized to reduce a defendant-appellee's original sentence in such 

a situation. See State v. Ewers, Delaware App.No. 2011–CAA–05–0040, 2011-Ohio6540. Similarly, we have rejected the argument that a PRC resentencing requires a de 

novo hearing. See State v. McPherson, Licking 10–CA–99, 2011-Ohio-1020. 

Regardless of whether common law or R.C. 2929.191 applies, the mere lack of PRC 

notice never entitles a defendant to a full de novo sentencing hearing. See State vs. 

Davis, Washington App.No. 10 CA 9, 2011-Ohio-6776, ¶ 8. 
{¶14} In accordance with the foregoing case law precedent, the State’s sole 

Assignment of Error is sustained. 

Cross-Appeal

I. 

{¶15} In his sole Assignment of Error on cross-appeal, appellee contends the 

trial court erred and denied him due process of law by ordering consecutive sentences 

for both of the kidnapping convictions, which he maintains involved no separate animus. 

{¶16} In State v. Franklin, Cuyahoga App.No. 95991, 2011-Ohio-4953, the 

Eighth District Court of Appeals, in light of Fischer, supra, reiterated that the issue of 

merger of allied offenses was barred by res judicata on a defendant's appeal from 

resentencing to impose postrelease control because the issue did not arise from the 

resentencing hearing. Id. at ¶ 11-12. See, also, State v. Hunter, Cuyahoga App. Nos. 

95111, 95112, and 95113, 2011–Ohio–1682. 

{¶17} We find the rationale of Franklin comports with the holding of Fischer by 

properly restricting the confines of PRC resentencing. We therefore apply the holding in 

Franklin to the circumstances of the case sub judice, and find appellee’s challenges to 

his kidnapping convictions and sentences are presently barred. 

 
{¶18} Cross-Appellant's sole Assignment of Error is overruled. 

{¶19} For the reasons stated in the foregoing opinion, the judgment of the Court 

of Common Pleas, Delaware County, Ohio, is hereby affirmed in part, reversed in part, 

and remanded for correction of appellee’s sentence to seventeen years. 

By: Wise, J. 

Gwin, P. J., and Delaney, J., concur. 

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 JUDGES 

 
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellant : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

OSAMA J. OWEIS : 

 : 

 Defendant-Appellee : Case No. 11 CAA 06 0050 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed in part 

and reversed in part. 

 Costs to be assessed to appellee. 

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 JUDGES