State v. Oweis , 2013 Ohio 1998 ( 2013 )

[Cite as State v. Oweis, 2013-Ohio-1998.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
: Case No. 12 CAA 04 0032
OSAMA J. OWEIS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Case No.
06CR-I-11-0513
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 8, 2013
APPEARANCES:
For Appellant: For Appellee:
WILLIAM T. CRAMER CAROL HAMILTON O’BRIEN
470 Olde Worthington Road, Suite 200 DELAWARE CO. PROSECUTOR
Westerville, OH 43082 BRIAN J. WALTER
140 North Sandusky St.
Delaware, OH 43015
Delaney, P.J.
{¶1} Appellant Osama Oweis appeals from the March 28, 2012 Amended
Judgment Entry on Sentence Pursuant to Remand of the Delaware County Court of
Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s convictions is not
necessary to our disposition of this appeal.
{¶3} On August 10, 2007, appellant was convicted by jury upon one count of
aggravated robbery pursuant to R.C. 2911.01(A)(1), a felony of the first degree; one
count of grand theft pursuant to R.C. 2913.02(A)(1), a felony of the fifth degree; and
two counts of kidnapping pursuant to R.C. 2905.01(A)(2), both felonies of the second
degree.
{¶4} Appellant was sentenced on October 1, 2007.1 Based on sentencing
memoranda submitted by the parties, the trial court did not sentence appellant upon
the aggravated robbery conviction. However, the trial court sentenced appellant to a
total of 17 years in prison on the kidnapping and grand theft convictions. The trial court
informed appellant at the sentencing hearing and journalized in the sentencing entry
that as part of his sentence, post-release control was discretionary for up to 3 years.
{¶5} 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
appellant's post-release control (“PRC”) and stated appellant was subject to a
1
We affirmed appellant’s conviction in his first direct appeal, State v. Oweis, 5th Dist.
No. 07 CAA 10 0051, 2008-Ohio-4698.
mandatory term of PRC of three years. See R.C. 2967.28(B)(2). The trial court did not
conduct a resentencing hearing before issuing the judgment entry.
{¶6} Appellant 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. State v. Oweis, 5th Dist. No. 10 CAA 08 0060, 2011-Ohio-
1620.
{¶7} 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
appellant 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
appellant to serve twelve months in prison, to be served concurrent to the kidnapping
counts. Thus, appellant's original sentence from October 1, 2007 was reduced by one
year to a total of 16 years.
{¶8} Appellee appealed the resentencing, arguing the trial court erred in
reconsidering the terms of appellant’s original sentence when it conducted a PRC
resentencing hearing. Appellant cross-appealed, asserting the trial court erred and
deprived him of due process of law by ordering consecutive sentences upon the
kidnapping convictions, which he maintained involved no separate animus. We
agreed with appellee, disagreed with appellant, and therefore affirmed the trial court’s
judgment in part but reversed in part. State v. Oweis, 5th Dist.No. 11CAA060050,
2012-Ohio-443. We remanded the matter to the trial court “for correction of appellee’s
sentence to seventeen years.” Id., at ¶ 19.
{¶9} On March 23, 2012, the trial court held a resentencing hearing pursuant
to the remand order and re-imposed appellant’s 17-year sentence.
{¶10} Appellant now appeals from the trial court’s resentencing entry of March
28, 2012.
ASSIGNMENT OF ERROR
{¶11} Appellant raises one Assignment of Error:
{¶12} “I. APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS
TO DUE PROCESS AND PROTECTIONS FROM DOUBLE JEOPARDY WERE
VIOLATED WHEN THE COURT IMPOSED MULTIPLE SENTENCES FOR ALLIED
OFFENSES IN VIOLATION OF R.C. 2941.25.”
ANALYSIS
{¶13} Appellant argues his convictions upon one count of grand theft and two
counts of kidnapping should merge for purposes of sentencing, and that the question
of merger should not be barred by res judicata. We disagree.
{¶14} As appellant acknowledges, the threshold issue in this appeal is the
application of res judicata. Upon cross-appeal in State v. Oweis, 5th Dist. No.
11CAA060050, 2012-Ohio-443, supra, appellant raised a similar argument to his
argument sub judice: the trial court erred and denied him due process of law by
ordering consecutive sentences for each kidnapping offense because each did not
involve a separate animus. We held, though, that “* * * the issue of merger of allied
offenses was barred by res judicata on a defendant’s appeal from resentencing to
impose post-release control because the issue did not arise from the resentencing
hearing.” Id., ¶ 16, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332 and State v. Franklin, 8th Dist. No. 95991, 2011-Ohio-4953.
{¶15} Similarly, in the case sub judice we find appellant’s challenge to
consecutive sentences for grand theft and kidnapping to be barred because the issue
is beyond the “confines of PRC resentencing.” State v. Oweis, supra, 2012-Ohio-443at ¶ 17. See, State v. Millette, 5th Dist. No. 11-CA-23, 2011-Ohio-6357, appeal not
allowed, 131 Ohio St.3d 1554, 2012-Ohio-2263, 967 N.E.2d 765.
{¶16} Appellant urges us to find that the trial court’s failure to merge the grand
theft and kidnapping convictions for sentencing purposes resulted in a void sentence
to which the doctrine of res judicata does not apply, but we reject this argument (as we
have in appellant’s prior appeal). In Fischer, the Ohio Supreme Court further
determined that the doctrine of 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.” Fischer, supra, paragraph three of the syllabus. We find this
applicable to the allied-offenses argument that appellant now raises, which could have
been raised in his original direct appeal. Thus, res judicata bars consideration of this
issue in this appeal.
CONCLUSION
{¶17} For the foregoing reasons, appellant’s sole assignment of error is
overruled and the judgment of the Delaware County Court of Common Pleas is
affirmed.
By: Delaney, P.J.
Hoffman, J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER
PAD:kgb
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
STATE OF OHIO :
:
Plaintiff - Appellee : JUDGMENT ENTRY
:
-vs- :
:
OSAMA OWEIS : Case No. 12 CAA 04 0032
:
Defendant - Appellant :
:
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER