State v. Payton

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[Cite as State v. Payton, 2011-Ohio-4386.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff - Appellee -vsDENNIS C. PAYTON Defendant - Appellant : : : : : : : : : JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. Case No. 2010CA00276 OPINION CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2003CR0655 JUDGMENT: Affirmed DATE OF JUDGMENT: August 29, 2011 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant JOHN D. FERRERO Prosecuting Attorney Stark County, Ohio DENNIS C. PAYTON, PRO SE Inmate No. 460-700 Mansfield Correctional Institution P.O. Box 788 Mansfield, OH 44901 By: RONALD MARK CALDWELL 110 Central Plaza South Suite 510 Canton, OH 44702 Stark County, Case No. 2010CA00276 2 Farmer, J. {¶1} On April 20, 2004, appellant, Dennis Payton, was found guilty of one count of rape in violation of R.C. 2907.02, one count of kidnapping in violation of R.C. 2905.01, two counts of gross sexual imposition in violation of R.C. 2907.05, and one count of unlawful sexual conduct with a minor in violation of R.C. 2907.04. By judgment entry filed December 24, 2003, the trial court sentenced appellant to an aggregate term of fourteen years and five months in prison and classified him as a sexual predator. His convictions and sentence were affirmed on appeal. State v. Payton, Stark App. No. 2004CA00019, 2005-Ohio-737. {¶2} On May 19, 2010, appellant filed a motion for de novo sentencing as his original sentence did not include a term of postrelease control. A video conferencing hearing was held on September 3, 2010. By judgment entry filed September 16, 2010, the trial court resentenced appellant to the fourteen years, five months sentence and imposed five years of postrelease control. {¶3} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I {¶4} "THE TRIAL COURT ERRED IN NOT CONDUCTING A DE NOVO SENTENCING HEARING TO IMPOSE A VALID SENTENCE ON APPELLANT INSTEAD OF THE LIMITED VIDEO HEARING JUST TO IMPOSE POST RELEASE CONTROL PROCESS." VIOLATING APPELLANT'S CONSTITUTIONAL RIGHT TO DUE Stark County, Case No. 2010CA00276 3 II {¶5} "THE TRIAL COURT VIOLATED THE APPELLANT'S RIGHTS GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, AND THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AGAINST DOUBLE JEOPARDY WHEN IT FAILED TO FOLLOW STATUTORILY MANDATED PROVISIONS OF RC 2941.25(A) REGARDING ALLIED OFFENSES." III {¶6} "PLAIN ERROR AND VOID CONVICTION RESULTED WHERE APPELLANT WAS DEPRIVED OF HIS RIGHT TO GRAND JURY INDICTMENT, TO DUE PROCESS AND A FAIR TRIAL PURSUANT TO ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHERE INDICTMENTS UPON WHICH APPELLANT WAS TRIED, CONVICTED AND SENTENCED OMITTED ESSENTIAL ELEMENTS OF OFFENSES SOUGHT TO BE CHARGED." IV {¶7} "THE JURY'S VERDICTS WERE INCONSISTENT WITH THE EVIDENCE PRESENTED IN COURT AND AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE." V {¶8} "THE TRIAL COURT ERRED BY CLASSIFYING APPELLANT AS A SEXUAL PREDATOR WHERE CLEAR AND CONVINCING EVIDENCE DID NOT SUPPORT THAT CONCLUSION." Stark County, Case No. 2010CA00276 4 I {¶9} Appellant claims the trial court erred in imposing postrelease control via a video conferencing hearing. We disagree. {¶10} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Supreme Court of Ohio held the following at paragraph one of the syllabus: {¶11} "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." {¶12} This de novo hearing has been limited by the Supreme Court of Ohio in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, which will be discussed infra. {¶13} In the case sub judice, appellant was sentenced prior to July 11, 2006 and was not properly informed of postrelease control; therefore, pursuant to Singleton, he was entitled to a de novo hearing. Video conferencing is an acceptable method of holding the hearing: {¶14} "The offender has the right to be physically present at the hearing, except that, upon the court's own motion or the motion of the offender or the prosecuting attorney, the court may permit the offender to appear at the hearing by video conferencing equipment if available and compatible. An appearance by video conferencing equipment pursuant to this division has the same force and effect as if the offender were physically present at the hearing." R.C. 2929.191(C) in part (correction to judgment of conviction; post-release supervision). {¶15} Assignment of Error I is denied. Stark County, Case No. 2010CA00276 5 II, III, IV, V {¶16} Under these assignments, appellant complains of double jeopardy/allied offenses issues, incomplete indictment, and manifest weight and sufficiency of the evidence regarding the jury's verdicts. Appellant also claims the trial court erred in classifying him as a sexual predator. {¶17} In Fischer, supra, at syllabus, the Supreme Court of Ohio limited the nature of the de novo hearing as follows: {¶18} "1. 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. {¶19} "2. The new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control. (State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus, modified.) {¶20} "3. 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. {¶21} "4. The scope of an appeal from a resentencing hearing in which a mandatory term of postrelease control is imposed is limited to issues arising at the resentencing hearing." {¶22} As stated by the Fischer court in paragraph two of the syllabus, the new sentencing hearing "is limited to proper imposition of postrelease control." Upon review, we find the trial court sub judice properly notified appellant of the mandatory five year Stark County, Case No. 2010CA00276 6 postrelease control requirement under R.C. 2967.28(B). T. at 6-8; Judgment Entry filed September 16, 2010 {¶23} Pursuant to Fischer, the issues of double jeopardy/allied offenses, incomplete indictment, manifest weight and sufficiency of the evidence, and sexual predator classification were not reviewable during this hearing. See, State v. Griffis, Muskingum App. No. CT2010-57, 2011-Ohio-2955. In addition, all of these alleged errors were raised or could have been raised on appellant's direct appeal therefore, they are barred by the doctrine of res judicata. Payton, supra; Fischer, supra; State v. Ketterer, 126 Ohio St.3d 448, 2010 Ohio 3831; Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, syllabus. {¶24} Assignments of Error II, III, IV, and V are denied. {¶25} The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed. By Farmer, J. Gwin, P.J. and Hoffman, J. concur. _s/ Sheila G. Farmer__________________ _s/ W. Scott Gwin____________________ _s/ William B. Hoffman________________ JUDGES SGF/sg 823 [Cite as State v. Payton, 2011-Ohio-4386.] IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsDENNIS C. PAYTON Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY CASE NO. 2010CA00276 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to appellant. _s/ Sheila G. Farmer__________________ _s/ W. Scott Gwin____________________ _s/ William B. Hoffman________________ JUDGES

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