[Cite as State v. Johnson, 2013-Ohio-1788.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98594




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 ANTHONY JOHNSON
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-528422

        BEFORE: Keough, J., Boyle, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                      May 2, 2013
APPELLANT

Anthony Johnson
No. 581-843
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristin Karkutt
      Daniel T. Van
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1. The purpose of an accelerated appeal is to allow the

appellate court to render a brief and conclusory opinion. Crawford v. Eastland Shopping

Mall Assn., 11 Ohio App. 3d 158, 463 N.E.2d 655 (10th Dist.1983); App.R. 11.1(E).

       {¶2} In February 2010, defendant-appellant, Anthony Johnson, was convicted of

one count of murder with a repeat violent offender specification, and two counts of child

endangering. He was sentenced to 15 years to life on the murder conviction, 10 years on

the repeat violent offender specification, and after the trial court merged the two counts of

child endangering, he was given an 8-year sentence. These sentences all ran consecutive,

for a total prison term of 33 years to life.

       {¶3} In August 2011, this court affirmed Johnson’s convictions in State v.

Johnson, 8th Dist. No. 94813, 2011-Ohio-1919. However, this court found that the

murder and child endangering convictions were allied offenses and should have merged

for sentencing. Id. at ¶ 74. Accordingly, this court reversed Johnson’s sentence and

remanded the case to the trial court to merge the convictions and for the State to elect on

which count the court should proceed with sentencing. Id. at ¶ 74-75.

       {¶4} On remand, the State elected to proceed with sentencing on the murder count.

 The trial court sentenced Johnson to 15 years to life on the murder count to run
consecutive to the 10-year repeat violent offender specification, for an aggregate prison

term of 25 years to life.

       {¶5} In this delayed appeal, Johnson challenges his sentence following remand.

He raises one assignment of error — that his counsel was ineffective for failing to object

to (1) the sentence as either being contrary to law or excessive, (2) the fact that the record

failed to address any factors regarding seriousness or recidivism, and (3) any costs, fines,

or fees imposed.

       {¶6} In considering whether trial counsel was ineffective, the defendant must

prove that counsel’s performance fell below an objective standard of reasonableness, and

that counsel’s deficient performance prejudiced the defendant resulting in an unreliable or

fundamentally unfair outcome of the proceeding. See Strickland v. Washington, 466
U.S. 668, 687-688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       {¶7} As the Ohio Supreme Court made clear in State v. Saxon, 109 Ohio St. 3d
176, 2006-Ohio-1245, 846 N.E.2d 824, “a sentencing hearing on remand is limited to the

issue found to be in error on the appeal.”         State v. Fischer, 128 Ohio St. 3d 92,

2010-Ohio-6238, 942 N.E.2d 332, ¶ 16, citing Saxon. This court remanded Johnson’s

case solely for merger of the allied offenses and for resentencing based on the election

made by the State. Accordingly, only issues that arose from the resentencing hearing

will be considered in this delayed appeal.

       {¶8} Johnson fails to explain how his sentence was contrary to law or excessive.

He was convicted of murder with a repeat violent offender specification. Pursuant to
R.C. 2929.02(B)(1), an indefinite sentence of 15 years to life is required for those

convicted of murder in violation of R.C. 2903.02. Moreover, the repeat violent offender

specification as applicable in this case could carry up to a 10-year sentence, which is

served prior and consecutive to the predicate charge. Accordingly, Johnson’s 25 years to

life sentence was not contrary to law or excessive.

         {¶9} As for Johnson’s argument that his counsel was ineffective for failing to

object to the trial court’s lack of consideration of the seriousness and recidivism factors,

the trial court’s journal entry indicates that it considered the required factors prior to

imposing the sentence. At the time the resentencing occurred, this was sufficient. See,

e.g., State v. Burrell, 8th Dist. No. 95512, 2011-Ohio-2533, ¶ 18-19.

         {¶10} Finally, Johnson did not appeal the imposition of court costs in his direct

appeal; thus res judicata bars this argument in this delayed appeal. Nevertheless, counsel

is ineffective if he fails to file an affidavit of indigency for the defendant where the record

shows a reasonable probability that the defendant would have been found indigent. State

v. Britton, 8th Dist. No. 98158, 2013-Ohio-99, ¶ 8. At his initial sentencing in February

2010, Johnson was not ordered to pay any fines, but rather was ordered to pay court costs.

 The trial court’s sentencing entry seems to question whether Johnson was in fact

indigent due to his ownership of certain real property. Accordingly, there is no evidence

that Johnson would have been found indigent at resentencing for purposes of paying court

costs.
      {¶11} Accordingly, Johnson’s sole assignment of error is overruled. Judgment

affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. Case remanded to the trial court for

execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
