[Cite as State v. Wallace, 2011-Ohio-4186.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

VS. 

DANA WALLACE, 

 DEFENDANT-APPELLANT. 

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 CASE NO. 10-MA-94 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 05CR573 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Paul Gains 

Prosecutor 

Ralph M. Rivera 

Assistant Prosecutor 

21 W. Boardman St., 6th Floor 

Youngstown, Ohio 44503-1426 

For Defendant-Appellant Dana Wallace, pro-se 

Mansfield Correctional Institution 

P.O. Box 788 

Mansfield, Ohio 44901-0788 

Attorney Rebecca A. Royer 

7920 Knauf Rd. 

Canfield, Ohio 44406 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

 
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Hon. Mary DeGenaro 

 

 Dated: August 16, 2011 

DONOFRIO, J. 

{¶1} Defendant-appellant, Dana Wallace, appeals from a Mahoning County 

Common Pleas Court judgment resentencing him on his convictions for aggravated 

burglary, menacing by stalking, and intimidation of a victim in a criminal case. 

{¶2} On June 20, 2005, a Mahoning County Grand Jury indicted appellant 

on one count of aggravated burglary, a first-degree felony; one count of intimidation 

of a victim or witness in a criminal case, a third-degree felony; and one count of 

menacing by stalking, a fourth-degree felony. The case proceeded to a jury trial 

where the jury found appellant guilty on all counts. The trial court later sentenced 

appellant to non-minimum, consecutive sentences totaling 11 years in prison. 

{¶3} Appellant filed an appeal from his convictions and sentence. This court 

affirmed his convictions but vacated his sentence and remanded the matter for 

resentencing. State v. Wallace, 7th Dist. No. 06-MA-44, 2007-Ohio-6226. 

{¶4} The trial court held a resentencing hearing on February 6, 2008. It 

once again sentenced appellant to an 11-year sentence consisting of six years for 

aggravated burglary, four years for intimidation, and 12 months for menacing by 

stalking. The court informed appellant that following his prison term, he would be 

subject to a “possible” period of postrelease control of “up to” five years. 

{¶5} On December 3, 2009, appellant filed a pro se motion to vacate void 

sentence. He asked the court to vacate his sentence and afford him a new 

sentencing hearing arguing that the court improperly advised him that his postrelease 

control was not mandatory. 

{¶6} The trial court granted appellant’s motion and held a new sentencing 

hearing on May 5, 2010. It once again imposed the same sentence. It then correctly 

informed appellant that his prison term would be followed by a “mandatory” five-year 

period of postrelease control. 

{¶7} Appellant filed a timely notice of appeal on June 4, 2010. 

{¶8} Appellant's counsel has filed a no merit brief and request to withdraw as 
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counsel pursuant to State v. Toney (1970), 23 Ohio App.2d 203. In Toney, this court 

set out the procedure to be used when appointed counsel finds that an indigent 

criminal defendant's appeal is frivolous. The Toney procedure is as follows: 

{¶9} “3. Where a court-appointed counsel, with long and extensive 

experience in criminal practice, concludes that the indigent's appeal is frivolous and 

that there is no assignment of error which could be arguably supported on appeal, he 

should so advise the appointing court by brief and request that he be permitted to 

withdraw as counsel of record. 

{¶10} “4. Court-appointed counsel's conclusions and motion to withdraw as 

counsel of record should be transmitted forthwith to the indigent, and the indigent 

should be granted time to raise any points that he chooses, pro se. 

{¶11} “5. It is the duty of the Court of Appeals to fully examine the 

proceedings in the trial court, the brief of appointed counsel, the arguments pro se of 

the indigent, and then determine whether or not the appeal is wholly frivolous. 

{¶12} “ * * * 

{¶13} “7. Where the Court of Appeals determines that an indigent's appeal is 

wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of 

record should be allowed, and the judgment of the trial court should be affirmed.” Id. 

at the syllabus. 

{¶14} This court informed appellant that his counsel filed a Toney brief. 

Subsequently, appellant filed a pro se brief raising two assignments of error. 

{¶15} Appellant’s first assignment of error states: 

{¶16} “DID THE TRIAL COURT ERROR WHEN IT IMPROPERLY 

CONDUCT[ED] A SENTENCING HEARING PURSUANT TO R.C. 2929.191 AND 

NOT CONDUCTING A DENOVO SENTENCING HEARING PURSUANT TO STATE 

V. BEZAK, * * *?” 

{¶17} Appellant argues that the trial court should have granted him a de novo 

sentencing hearing because he was originally sentenced before July 11, 2006. He 

contends that the court failed to inform him of his appellate rights. 

{¶18} Postrelease control for a first- or second-degree-felony offender who is 
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sentenced to a prison term must include a mandatory term of postrelease control to 

be imposed by the parole board. R.C. 2967.28(B). When imposing the sentence, the 

trial court must notify the offender of the proper term of postrelease control. R.C. 

2929.19(B)(3)(c). 

{¶19} In State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, at the syllabus, 

the Ohio Supreme Court determined that an offender is entitled to a de novo 

sentencing hearing in order for the trial court to correct a sentence that omitted the 

proper notice of postrelease control. 

{¶20} On July 11, 2006, the General Assembly enacted R.C. 2929.191. It 

provides a statutory remedy to correct a failure to properly impose postrelease 

control. Pursuant to R.C. 2929.19, a trial court may, after conducting a hearing, 

correct an original sentencing judgment by entering a nunc pro tunc entry that 

includes a statement that the offender will be supervised under R.C. 2967.28 after 

the offender leaves prison and that the parole board may impose a prison term of up 

to one-half of the stated prison term originally imposed if the offender violates 

postrelease control. The hearing pertains only to postrelease control and not to the 

remainder of the offender’s sentence. 

{¶21} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Ohio 

Supreme Court set out the procedures for trial courts to follow depending on whether 

the offender’s sentence was imposed before or after July 11, 2006, the effective date 

of R.C. 2929.191: 

{¶22} “For criminal sentences imposed prior to July 11, 2006, in which a trial 

court failed to properly impose postrelease control, trial courts shall conduct a de 

novo sentencing hearing in accordance with decisions of the Supreme Court of Ohio. 

{¶23} “For criminal sentences imposed on and after July 11, 2006, in which a 

trial court failed to properly impose postrelease control, trial courts shall apply the 

procedures set forth in R.C. 2929.191.” Id. at paragraphs one and two of the 

syllabus. 

{¶24} Appellant was originally sentenced on April 4, 2006, before the effective 

date of R.C. 2929.191. However, this court vacated that sentence in Wallace, 2007-
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Ohio-6226, and remanded the matter for resentencing. The trial court then 

resentenced appellant on February 6, 2008, after the effective date of R.C. 2929.191. 

It was from this February 6, 2008 sentencing judgment entry that appellant filed his 

motion to vacate void sentence and it was this judgment entry that failed to properly 

advise appellant that his postrelease control term was mandatory. 

{¶25} Because appellant’s sentence containing the postrelease control error 

was not entered until after the July 11, 2006 enactment of R.C. 2929.191, the 

procedures set out in that statute as stated in Singleton, supra, apply here. 

{¶26} Additionally, while the trial court did not advise appellant of his appellate 

rights at the February 6, 2008 hearing, in all other respects it did provide him with a 

de novo sentencing hearing. The court first heard from the state and appellant’s 

counsel. (Feb. 6, 2008 Tr. 2-5). It then provided appellant with the right of allocution. 

(Feb. 6, 2008 Tr. 5). The court next stated that it considered the record, the oral 

statements, the presentence investigation report, the principles and purposes of 

sentencing pursuant to R.C. 2929.11, and the seriousness and recidivism factors 

pursuant to R.C. 2929.12. (Feb. 6, 2008 Tr. 6). The court then re-imposed its 

previous sentence. (Feb. 6, 2008 Tr. 7). Finally, the court properly advised appellant 

of his mandatory five-year term of postrelease control. (Feb. 6, 2008 Tr. 7). Thus, 

the trial court provided appellant with a more in depth hearing than R.C. 2929.191 

requires. 

{¶27} Accordingly, appellant’s first assignment of error is without merit. 

{¶28} Appellant’s second assignment of error states: 

{¶29} “AS A MATTER OF LAW THE EVIDENCE [WAS] INSUFFICIENT TO 

SUPPORT THE CONVICTION FOR INTIMIDATION OF A WITNESS?” 

{¶30} Here appellant argues that his conviction for intimidation of a witness 

was not supported by sufficient evidence. 

{¶31} This assignment of error is barred based on the doctrine of res judicata 

as dictated by State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. 

{¶32} In that case, Fischer filed an appeal from his conviction for multiple 

felonies. His convictions were affirmed by the appellate court. Several years later, 
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Fischer moved for resentencing after the Ohio Supreme Court issued Bezak, 114 

Ohio St.3d 94 (holding that a sentence that omits a statutorily mandated postrelease 

control term is void) arguing the trial court had not properly advised him about 

postrelease control. The trial court granted Fischer a resentencing hearing where it 

properly notified Fischer on his postrelease control obligations and re-imposed the 

remainder of Fischer’s sentence. 

{¶33} Fischer appealed asserting that because his original sentence was 

void, his first direct appeal was not valid and this appeal was actually his first direct 

appeal where he was free to raise any and all issues relating to his conviction. The 

court of appeals disagreed, holding that Fischer’s appeal was precluded under the 

law-of-the-case doctrine. 

{¶34} The Ohio Supreme Court concluded that a direct appeal from a 

resentencing ordered pursuant to Bezak, supra, is not a first appeal as of right. 

Fischer, at ¶32. The Court then went through a discussion of void judgments, 

sentences that are contrary to law, and Bezak. The Court reaffirmed its holding in 

Bezak that, “‘[w]hen a defendant is convicted of or pleads guilty to one or more 

offenses and postrelease control is not properly included in a sentence for a 

particular offense, the sentence for that offense is void,’ but with the added proviso 

that only the offending portion of the sentence is subject to review and correction.” 

Id. at ¶27. The court went on to modify Bezak, however, holding that “[t]he new 

sentencing hearing to which an offender is entitled under State v. Bezak is limited to 

proper imposition of postrelease control” instead of an entirely new sentencing 

hearing. Id. at paragraph two of the syllabus; ¶¶28-29. 

{¶35} The Court went on to find that because Fischer had already had the 

benefit of one direct appeal, he could not now raise any and all claims of error in a 

second, successive appeal. Id. at ¶33. Thus, the Court held: 

{¶36} “Although the doctrine of res judicata does not preclude review of a void 

sentence, 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. 

{¶37} “The scope of an appeal from a resentencing hearing in which a 
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mandatory term of postrelease control is imposed is limited to issues arising at the 

resentencing hearing.” Id. at paragraphs three and four of the syllabus. 

{¶38} Like Fischer’s sentence, appellant’s sentence was only void as to the 

extent the trial court improperly advised him regarding his postrelease control 

obligation. The trial court recognized its error, granted appellant a resentencing 

hearing where it corrected its error, and re-imposed the same sentence. Now, on 

appeal, appellant is limited to raising issues that arose at the resentencing hearing. 

Res judicata precludes him from asserting any issues he raised, or could have 

raised, in his first direct appeal including sufficiency of the evidence. 

{¶39} Accordingly, appellant’s second assignment of error is without merit. 

{¶40} The appeal here stems from a new hearing pursuant to R.C. 2929.191 

to correct the court’s previous error regarding the information it gave to appellant 

about postrelease control. Thus, appellant was limited to only raising errors that 

arose at the resentencing hearing. This he did in his first assignment of error. As the 

trial court properly informed appellant of his mandatory five-year term of postrelease 

control, there are no other potential errors he can now assert. 

{¶41} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. Counsel’s motion to withdraw is granted. 

Waite, P.J., concurs. 

DeGenaro, J., concurs.