[Cite as State v. Fair , 2021-Ohio-656.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2019-P-0099 - vs - : ROSS FAIR, : Defendant-Appellant. :

Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR 00533.

Jud g ment: Affirmed in part, reversed in part, and remanded.

Victor V. Vigluicci , Portage County Prosecutor, and Theresa M. Scahill , Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 ( For Plaintiff-Appellee )

. Michael A. Partlow , 112 South Water Street, Suite C, Kent, OH 44240 (For Defendan tAppellant )

.

MATT LYNCH, J. {¶1} Defendant-appellant, Ross M. Fair, appeals the September 3, 201 9 Judgment Entry of the Portage County Court of Common Pleas, sen tencing him to an aggregate sentence of life with parole eligibility after 33 yea rs, after this court reversed his original sentence of life with parole eligibility after 38 years and remanded for resentencing. For the following reasons, we affirm in part, re verse in part, and remand for further proceedings consistent with this Opinion. {¶2} Following a jury trial, Fair was convicted of two counts of Rap e, felonies of2 the first degree in violation of R.C. 2907.02(A)(1)(b) and 2971 .03; two counts of Gross Sexual Imposition, felonies of the third degree in violation of R.C. 2907.05(A)(4); two counts of Sexual Battery, felonies of the second degree in viol ation of R.C. 2907.03(A)(5) and (B); and one count of Importuning, a felony of the third de gree in violation of R.C. 2907.07(A) and (F)(2). {¶3} The trial court sentenced Fair as follows:

IT IS THEREFORE ORDERED that the Defendant is sentenced to the Ohio Department of Rehabilitation and Correcti on to a term of imprisonment of LIFE with the eligibility for paro le after 15 years to be served for Each offense of “Rape”, to run consec utive to one another, Five (5) years to be served for Each offense of “Gross Sexual Imposition” to run concurrent to one another and shall m erge with the aforementioned sentence, Eight (8) years to be served for Each offense of “Sexual Battery” to run concurrent to one anoth er but consecutive to the Rape sentences and Three (3) years to be served for the offense of “Importuning” of which shall run conc urrent to the aforementioned sentences, for a total of a Life sentence with the eligibility for parole after Thirty-eight (38) years, or un til such time as he is otherwise legally released. {¶4} Fair appealed his convictions and sentence. {¶5} In State v. Fair , 11th Dist. Portage No. 2018-P-0027, 2019-Ohio-2508, this court affirmed the jury’s verdicts and the imposition of consec utive sentences but reversed for failing to merge allied offenses. This court held that the Sexual Battery counts (as well as the Gross Sexual Imposition counts) were all ied offenses with the Rape counts and should have merged. Id. at ¶ 39. This court further noted that the trial court erroneously sentenced Fair for the Gross Sexual Imposition coun ts despite ruling that these counts should merge with the Rape counts. Id. at ¶ 27. The case was “remanded for resentencing.” Id. at ¶ 75. {¶6} On August 30, 2019, Fair’s resentencing hearing was held. The State of Ohio elected to proceed on the two counts of Rape into which th e trial court merged the3 Gross Sexual Imposition and Sexual Battery counts. {¶7} On September 3, 2019, the trial court issued an Order and Journ al Entry, memorializing Fair’s sentence as follows:

IT IS THEREFORE ORDERED that the Defendant is sentenced to the Ohio Department of Rehabilitation and Correcti on to a term of imprisonment of LIFE with the eligibility for paro le after 15 years to be served for Each offense of “Rape”, to run consec utive to one another and Thirty-six (36) months to be served for the offense of “Importuning” * * * which shall run consecutive to the aforementioned sentences, or until such time as he is otherwise legally released. {¶8} On September 25, 2019, counsel for Fair filed a Notice of Appea l. On appeal, Fair raises the following assignments of error: {¶9} “[1.] The trial court erred by sentencing appellant to a mandat ory term of incarceration without first advising appellant of such pursuant to R.C. 2929[.19](B)(2)(a).” {¶10} “[2.] The trial court erred, as a matter of law, by failing to give appellant credit for jail time served during the pendency of this matter. ” {¶11} In the first assignment of error, Fair argues that the trial co urt erred by failing to advise him at resentencing that it was imposing a mandatory term of incarceration as required by R.C. 2929.19(B)(2)(a) (“if the sentencing court det ermines at the sentencing hearing that a prison term is necessary or required, the court shall * * * [i]mpose a stated prison term and, if the court imposes a mandatory prison term, notify the offender that the prison term is a mandatory prison term”). The life sentences i mposed for the Rape convictions are mandatory prison terms. R.C. 2929.01(X)(3). T he State acknowledges that the court failed to comply with R.C. 2929.19(B)(2)(a) at r esentencing and concedes the same as error. We note that, at Fair’s original sentencing , the court did advise him of the mandatory nature of the Rape sentences. Fair , 2019-Ohio-2508, at ¶ 24.4 {¶12} “The failure of the court to notify the offender that a prison term is a mandatory prison term pursuant to division (B)(2)(a) of this se ction or include in the sentencing entry any information required by division (B)(2)(b) of this section does not affect the validity of the imposed sentence or sentences.” R.C . 2929.19(B)(7). In light of this provision, the courts have held that the failure to notify an offender that a prison term is mandatory does not render a judgment vulnerable to collatera l attack. E.g., State v.

Stevens , 9th Dist. Summit No. 29131, 2019-Ohio-2808, ¶ 10; State v. Rasul , 8th Dist. Cuyahoga No. 101625, 2016-Ohio-200, ¶ 20 (“Rasul cannot establi sh prejudice for the failure to raise it in the direct appeal because the remedy is limited to providing a corrected entry and does not affect the validity of the sentence or sente nces that were already imposed”). Rather than vacate Fair’s sentences, the appropriat e remedy is “to remand the matter to the trial court to provide the notification set f orth in R.C. 2929.19(B)(2)(a).”

State v. Benitez-Maranon , 9th Dist. Summit Nos. 26461 and 26659, 2014-Ohio-3575, ¶

15. {¶13} The first assignment of error is with merit. {¶14} In the second assignment of error, Fair argues that the trial c ourt failed to calculate the precise number of days of jail time credit to whi ch he was entitled pursuant to R.C. 2929.19(B)(2)(g)(i) (“the court shall * * * “[d]etermin e, notify the offender of, and include in the sentencing entry the total number of days * * * that the offender has been confined for any reason arising out of the offense for which th e offender is being sentenced and by which the department of rehabilitation and cor rection must reduce the definite term imposed on the offender as the offender’s stated prison term”). {¶15} With respect to jail time credit, the trial court’s September 3 , 2019 Entry provides: “* * * Defendant shall receive credit for all the day s he has spent in the Portage5 County Jail and in prison on this matter. This credit includes jail time up to the date of sentencing and does not include any subsequent time awaiting co nveyance to the reception facility. That time is to be calculated by the recep tion facility.” Thus, the court provided for all jail time credit including all previous time “ in the Portage County Jail and in prison.” {¶16} The State responds that the trial court complied with R.C. 2929.19(B)(2)(g)(i) in its original March 13, 2018 Entry, where in it stated: “* * * Defendant shall receive credit for the 265 days he has spent in the Porta ge County Jail * * *. This credit includes jail time up to the date of sentencing and does not include any subsequent time awaiting conveyance to the reception facility. That time is to be calculated by [the] reception facility.” It is the State’s position that, “[w]hen a matter is remanded for resentencing and the original jail-time credit amount is not ch allenged, the trial court is not obliged to calculate or restate the jail-time credit amount .” Appellee’s brief at 4. We

agree. {¶17} In the prior appeal of this matter, State v. Fair , 2019-Ohio-2508, this court reversed Fair’s sentence in part and remanded the matter for th e purposes of merger and resentencing. The Ohio Supreme Court has held that, “[i]n a re mand based only on an allied-offenses sentencing error, * * * only the sentences for the offenses that were affected by the appealed error are reviewed de novo; the senten ces for any offenses that were not affected by the appealed error are not vacated and are not subject to review.”

State v. Wilson , 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 15. Fr om this it follows that “any prior issues not successfully challenged i n [the prior] appeal are outside the scope of [the] resentencing remand and will be precluded fr om further review under the principles of res judicata.” Id. at ¶ 33; compare State v. Rock , 11th Dist. Lake No.6 2018-L-107, 2019-Ohio-2507, ¶ 13 (the trial court was “under no duty” to restate the amount of jail-time credit given to the offender following a re mand for the purposes of imposing consecutive sentences). {¶18} The second assignment of error is without merit. {¶19} For the foregoing reasons, the first assignment of error is wit h merit. Fair’s sentence is reversed with respect to the failure to advise him of the mandatory nature of the Rape sentences and affirmed in all other respects. This ca se is remanded for further proceedings consistent with th is Opinion. Costs to be taxed ag ainst the parties equally.

MARY JANE TRAPP, P.J., THOMAS R. WRIGHT, J.,

concur.