State v. Tyson

[Cite as State v. Tyson, 

.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Craig R. Baldwin, J.
-vsCase No. 2015CA00196
FRANK E. TYSON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2000CR0849


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                         May 16, 2016

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO,                               FRANK E. TYSON , PRO SE
Prosecuting Attorney,                          Inmate No. 387-251
Stark County, Ohio                             Lebanon Correctional Institution
                                               P.O. Box 54
By: RENEE M. WATSON                            Lebanon, Ohio 45036
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2015CA00196                                                          2

Hoffman, J.


         {¶1}   Defendant-appellant Frank E. Tyson appeals the August 24, 2015

Judgment Entry entered by the Stark County Court of Common Pleas, denying his motion

for resentencing. The state of Ohio is plaintiff-appellee.

                                    STATEMENT OF THE CASE1

         {¶2}   In 2000, Appellant was found guilty by a jury of kidnapping, burglary, failure

to comply with an order of a police officer, grand theft of a motor vehicle, and receiving

stolen property. He was sentenced to a total of 24 years in prison.

         {¶3}   Upon direct appeal, this Court affirmed Appellant’s convictions and

sentence in 2001. State v. Tyson, 5th Dist. No. 2000CA00361, 

.

         {¶4}   In 2008, Appellant separately filed a motion for a new trial and a motion for

post-conviction relief. The trial court denied both motions and this Court affirmed the trial

court’s decisions in State v. Tyson, 5th Dist. No. 2008CA00253, 

.

         {¶5}   Appellant then filed a habeas petition in federal court, which was dismissed

in February, 2010.

         {¶6}   In February, 2010, Appellant filed additional post-trial motions and

requested a de novo sentencing hearing based upon improperly imposed post-release

control. The trial court granted resenting, in part.

         {¶7}   A resentencing hearing limited to the proper imposition of post-release

control took place in May, 2011. Following entry, Appellant appealed again. This Court




1   A rendition of the facts is unnecessary for our resolution of this appeal.
Stark County, Case No. 2015CA00196                                                        3

affirmed the trial court’s decision in State v. Tyson, 5th Dist. No. 2011CA00177, 2012-

Ohio-712.

         {¶8}   In July, 2013, Appellant filed another motion for resentencing. His motion

was granted pursuant to the holding in State v. Holdcroft, 

, 2013-Ohio-

5014. Accordingly, Appellant was resentenced again on February 14, 2014. Therein, the

trial court vacated the post-release control associated with his conviction for kidnapping.

         {¶9}   Appellant again appealed, arguing his sentence for kidnapping could not be

reinstated because he had already served his sentence thereon. This Court rejected

Appellant’s argument and affirmed his resentencing.         State v. Tyson, 5th Dist. No.

2014CA00040 

 at ¶20.

         {¶10} On July 29, 2015, Appellant filed another motion requesting de novo

sentencing again asserting his sentence for kidnapping could not be reinstated. The trial

court denied Appellant’s motion via Judgment Entry filed August 24, 2015.

         {¶11} It is from that judgment entry Appellant prosecutes this appeal assigning as

error:

         {¶12} “I. THE TRIAL COURT LACKED THE AUTHORITY AND JURISDICTION

TO ACT UPON, MODIFY, OR REVIVE THE 8 YEAR SENTENCE ON COUNT-1

KIDNAPPING AFTER THE 8 YEAR SENTENCE HAD EXPIRED.

         {¶13} “II. THE TRIAL COURT HAD NO JURISDICTION OVER THIS MATTER

WHEN IT ENTERED THE ORDER STATING THE PRISON SANCTIONS OF 8 YEARS

ON COUNT-1 KIDNAPPING REMAINED AFTER HIS 8 YEAR TERM WAS VACATED

AND HAD EXPIRED.”
Stark County, Case No. 2015CA00196                                                   4


                                          I & II

      {¶14} We address Appellant’s assignments of error together as they are controlled

by the same legal principle.

      {¶15} We find the claims presently raised by Appellant were previously raised in

his prior appeal in State v. Tyson, 5th Dist. No. 2014CA00040, 

. Under

the doctrine of law of the case and application of res judicata, we overrule both of

Appellant’s assignments of error.

      {¶16} The judgment of the trial court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur
Stark County, Case No. 2015CA00196   5