[Cite as State v. Martin,
2011-Ohio-5634.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25615
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANTOINE RASHWAN MARTIN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 97 04 0793 (B)
DECISION AND JOURNAL ENTRY
Dated: November 2, 2011
MOORE, Judge.
{¶1} Appellant, Antoine Martin, appeals from his conviction in the Summit County
Court of Common Pleas. This Court affirms in part, vacates in part, and remands for
proceedings consistent with this opinion.
I.
{¶2} We considered this case in a previous appeal and summarized the facts as follows:
“On April 7, 1997, [Martin] and Anwar Shehadah, the victim, were in a
confrontation outside the Wooster Market in Akron where Anwar worked. Anwar
allegedly used a knife to keep [Martin] from attacking him. When the police
arrived at the scene, [Martin] told the police that nothing was wrong and that he
was just leaving. [Martin] claimed that Anwar cut him with the knife in the leg
before the police arrived, but he also admitted that he did not share this
information with the police. [Martin] walked across the street and yelled back to
Anwar that if Anwar came into the projects, [Martin] would kill him.
“On April 13, 1997, Anwar worked at the Wooster Market until a little after one
o’clock in the morning. Anwar’s girlfriend was with Anwar at work and admitted
that he drank some beer while working that evening. At the end of his shift,
Anwar and his girlfriend left Wooster Market in a van and drove to Edgewood
Homes because Anwar wanted to buy some drugs. When they arrived at
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Edgewood Homes, Anwar’s girlfriend stayed in the van. Anwar got out of the van
and started looking for someone who would sell him some drugs.
“In the meantime, [Martin] and his friend, Aaron, had stopped by [Martin]’s
cousin’s apartment at Edgewood Homes to get some money before meeting two
females at a nearby motel. While [Martin] and Aaron were at the apartment,
Anwar knocked on the door. [Martin] opened the door, and Anwar indicated that
he wanted to purchase some drugs. [Martin] and Aaron stepped into the hallway,
and [Martin] sold some crack cocaine to Anwar. Anwar put the crack in his
mouth, decided it was not real crack, and started yelling at [Martin] to give him
his money back. Colin Kirkland, who lived in the complex and heard the yelling,
emerged from his apartment wearing a t-shirt and boxer shorts, waved a gun, and
screamed at them to leave. Kirkland testified that Anwar was holding a crack
pipe, and Aaron stated that Anwar was holding a screwdriver. [Martin] testified
that Anwar had a knife and came toward him with the knife. Aaron claimed that
he never saw Anwar move toward or lunge at [Martin].
“According to [Martin], Aaron pushed Anwar out the door and down the stairs.
Pursuant to Aaron’s testimony, [Martin] grabbed Anwar and threw him down the
stairs. Both [Martin] and Aaron asserted that Anwar landed on his back. [Martin]
testified that Anwar was on the ground with a knife and was yelling threats about
taking [Martin]’s life. [Martin] stated that when he walked over to Anwar, he was
hit by Anwar in the eye. [Martin] then retrieved a branch from a nearby tree and
proceeded to hit Anwar once in the head and twice in the chest with the tree
branch. Witnesses testified that they observed [Martin] repeatedly beat Anwar in
the head with a broomstick or a bat. [Martin] admitted that he did not see anyone
else beat Anwar with any type of object. Anwar was eventually taken to a
hospital, where he died from blows that he had sustained to his head.
“ On April 17, 1997, a Summit County Grand Jury indicted [Martin] on one count
of murder in violation of R.C. 2903.02, one count of felonious assault in violation
of R.C. 2903.11(A)(1), and one count of involuntary manslaughter in violation of
R.C. 2903.04(A). On August 13, 1997, [Martin] was found guilty of all three
counts. The trial court sentenced [Martin] to an indefinite period of fifteen years
to life for the murder count, ten years for the involuntary manslaughter count, and
eight years for the felonious assault count. The trial court further ordered that all
the sentences be served concurrently.” State v. Martin (Feb. 9, 1999), 9th Dist.
No. 18715.
{¶3} On appeal, this Court affirmed his convictions. On May 14, 2010, Martin filed a
motion for resentencing because the trial court failed to properly notify him of postrelease
control. The State requested that Martin be sentenced de novo pursuant to State v. Singleton, 124
Ohio St.3d 174,
2009-Ohio-6434, paragraph one of the syllabus. A hearing was held on August
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31, 2010. On September 10, 2010, the trial court merged Martin’s convictions for felonious
assault and involuntary manslaughter into the conviction for murder and sentenced Martin to
fifteen years to life. The judgment entry fails to mention postrelease control.
{¶4} Martin timely filed a notice of appeal. He raises one assignment of error for our
review.
II.
ASSIGNMENT OF ERROR
“[MARTIN’S] CONVICTION MUST BE VACATED BECAUSE HIS RIGHT
TO BE FREE FROM DOUBLE JEOPARDY HAS BEEN VIOLATED BY THE
CONVICTIONS OF FELONIOUS ASSAULT, INVOLUNTARY
MANSLAUGHTER AND FELONY MURDER BECAUSE SAID OFFENSES
ARE ALLIED OFFENSES OF SIMILAR IMPORT.”
{¶5} In his sole assignment of error, Martin contends that his conviction must be
vacated because the convictions of felonious assault, involuntary manslaughter and felony
murder are allied offenses of similar import and thus violate his double jeopardy rights.
{¶6} Before we address Martin’s assignment of error, we must first determine the
proper scope of the resentencing hearing. Martin filed a motion for resentencing because the
trial court failed to properly notify him of postrelease control. The State requested a de novo
resentencing hearing pursuant to State v. Singleton, which required the trial court to hold a de
novo sentencing hearing to correct postrelease control in a sentence imposed before July 11,
2006. Singleton, 124 Ohio St.3d at paragraph one of the syllabus. At the de novo resentencing
hearing, the trial court reviewed the issue of allied offenses, and merged Martin’s convictions for
felonious assault and involuntary manslaughter into the conviction for murder. The entry fails to
mention postrelease control.
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{¶7} During the pendency of this appeal, the Ohio Supreme Court released its decision
in State v. Fischer, which clarified that when a trial court does not properly impose postrelease
control as part of a defendant’s sentence, “that part of the sentence … is void and must be set
aside,” and that “only the offending portion of the sentence is subject to review and correction.”
State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, at ¶26-27. Thus, “[t]he scope of an appeal
from a resentencing hearing in which mandatory postrelease control is imposed is limited to
issues arising at the sentencing hearing.” The court further held that res judicata does not
preclude review of a void sentence, but it “still applies to other aspects of the merits of a
conviction, including the determination of guilt and the lawful elements of the ensuing
sentence.”
Id. at paragraph three of the syllabus.
{¶8} In this case, as in Fischer, the only issues arising at the resentencing, and thus
subject to review, were those encompassing the postrelease-control notification. This is not a
case involving a resentencing pursuant to a remand. Accord State v. Jones, 9th Dist. No. 25676,
2011-Ohio-4934; State v. Brown,
2011-Ohio-1029, at ¶11 (concluding that the allied offense
issues were properly before the trial court because the appellate court had previously mandated
the merger of two convictions). As such, issues relating to allied offenses were not properly
before the trial court.
{¶9} In his prior appeal, Martin argued that involuntary manslaughter and felonious
assault were allied offenses of similar import. See Martin, supra. This Court determined that the
alleged errors did not rise to the level of plain error and affirmed his convictions. Id. It is long-
standing precedent in Ohio that res judicata bars the consideration of issues that were raised or
could have been raised on direct appeal. State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, at
¶16-17. Because Martin has already “had the benefit of one direct appeal, [he can]not raise any
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and all claims of error in a … successive appeal.” See Fischer at ¶33, citing State v. Fischer,
181 Ohio App.3d 758,
2009-Ohio-1491. Pursuant to Fischer, the trial court’s authority was
limited to informing Martin about mandatory postrelease control. Fischer at paragraph two of
the syllabus. It did not have the authority to merge the offenses and to resentence Martin.
Because the trial court exceeded its authority by merging the offenses for sentencing, and it
failed to properly impose postrelease control, we vacate the September 10, 2010 judgment entry.
Martin’s original concurrent sentences remain valid. The matter is remanded to the trial court for
resentencing to correct the void portion of his August 13, 1997 judgment entry, that is, the
postrelease control portion of his sentence, leaving the remainder of Martin’s sentence intact.
{¶10} Based on the foregoing, we decline to address the merits of Martin’s assignment
of error, as it is barred by res judicata.
III.
{¶11} We decline to address Martin’s assignment of error. Martin’s original concurrent
sentences remain intact, and the matter is remanded for further proceedings consistent with this
opinion.
Judgment affirmed in part,
vacated in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, P. J.
DICKINSON, J.
CONCUR
APPEARANCES:
JANA DELOACH, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
