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Date: 05-22-2020

Case Style:


Case Number: 2020CA00002

Judge: Earle E. Wise, Jr.


Plaintiff's Attorney: RONALD MARK CALDWELL

Defendant's Attorney:

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On September 3, 1996, Sistrunk pled guilty to one count of aggravated
burglary, an offense he committed before the effective date of Senate Bill 2. Following a
presentence investigation, the trial court sentenced Sistrunk to an indeterminate sentence
of 5 to 25 years. Sistruck did not appeal.
{¶ 3} A year later, Sistrunk was granted judicial release and placed on probation
for a period of five years. The November 3, 1997 judgment entry placing Sistrunk on
judicial release outlined eleven standard terms and conditions of probation and four
special conditions.
{¶ 4} On February 25, 1998, Sistrunk's probation officer issued a warrant for
Sistrunk's arrest. Sistrunk absconded, and had an active warrant for his arrest for burglary
issued by the Stark County Sheriff's Department.
{¶ 5} On July 27, 1998, Sistrunk's probation officer filed a motion to revoke
SIstrunk's probation. The motion set forth seven specific violations.
{¶ 6} On August 10, 1998, Sistrunk waived the probable cause portion of his
revocation hearing and stipulated to the revocation of his community control sanctions.
The trial court subsequently revoked Sistrunk's community control and reimposed his
indeterminate 5-to-25 year sentence. Sistrunk did not appeal.
Stark County, Case No. 2020CA00002 3
{¶ 7} Twenty-one years later, on December 9, 2019, Sistrunk filed a "Motion to
Vacate Revocation of Probation, Incorporating Motion for Resentencing." Sistrunk argued
his sentence should be vacated because he was never advised of his right to appeal
during his original 1996 sentencing hearing, was never given a detailed notice of his
probation violations or a formal hearing on the alleged violations, and was never advised
of the terms and conditions of his probation. On December 11, 2019, the trial court
overruled the motion. It is from this judgment entry Sistrunk appeals. He raises two
assignments of error:
{¶ 10} Preliminarily, we note this case is before this court on the accelerated
calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment
on appeal, provides in pertinent part: "The appeal will be determined as provided by
App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the
reason for the court's decision as to each error to be in brief and conclusionary form."
{¶ 11} One of the most important purposes of the accelerated calendar is to enable
an appellate court to render a brief and conclusory decision more quickly than in a case
on the regular calendar where the briefs, facts, and legal issues are more complicated.
Stark County, Case No. 2020CA00002 4
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th
{¶ 12} This appeal shall be considered in accordance with the aforementioned
Initial Matters
{¶ 13} First, as pointed out by the state, Sistrunk's pro se brief does not comply
with the rules for a proper brief as set forth in App.R. 16(A). Sistrunk's brief fails in almost
every respect to comply with the requirements governing the content of the brief of the
Appellant. App.R.16 (A)(1)-(7). Briefs filed in this court, whether by counsel or pro se,
must comply with App.R. 16.
{¶ 14} While Sistrunk sets forth two assignments of error, his brief lacks an
argument section as required by App.R 16(A) to specifically address his two stated
assignments of error. It further fails to comply with the local rules and additional appellate
rules in other regards as well.
{¶ 15} Compliance with the appellate rules is mandatory. Sistrunk's failure to
comply with App.R. 16 is tantamount to failing to file a brief in this matter. Pursuant to
App.R. 12(A)(2), we are not required to address issues which are not argued separately
as assignments of error, as required by App.R. 16(A). Kremer v. Cox, 114 Ohio App.3d
41, 60, 682 N.E.2d 1006 (1996); Hawley v. Riley, 35 Ohio St.3d 157, 159, 519 N.E.2d
390 (1988). Such deficiencies permit this court to dismiss Sistrunk's appeal.
Notwithstanding the omissions in appellant's brief, however, in the interests of justice and
finality, we elect to review what we believe are the issues raised in appellant's appeal.
Stark County, Case No. 2020CA00002 5
{¶ 16} Sistruck first appears to argue that the trial court erred by failing to advise
him of his right to appeal and his right to counsel on appeal during his September 3, 1996
sentencing hearing. We disagree.
{¶ 17} Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceeding except an appeal from that judgment, any defense or claimed lack of due
process that was raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction, or on an appeal from that judgment. State v.
Szefcyk, 77 Ohio St.3d 93, 96, 1996-Ohio-337, 671 N.E.2d 233; State v. Perry, 10 Ohio
St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. Not only does res
judicata bar appellant from raising issues that were raised in his direct appeal, it also bars
issues that could have been raised in that appeal. Szefcyk, supra.
{¶ 18} While it is not lost on us that Sistrunk argues he was never informed of his
right to appeal in the first place, that does not change the fact that the matter is barred. A
defendant may not sit idly by and wait twenty-one years to discover his rights.
{¶ 19} Even if Sistrunk's appeal was not barred, Sistrunk states he takes his appeal
via R.C. 2953.08(A)(4). That section provides:
(A) In addition to any other right to appeal and except as provided
in division (D) of this section, a defendant who is convicted of or
pleads guilty to a felony may appeal as a matter of right the sentence
imposed upon the defendant on one of the following grounds:
* * *
Stark County, Case No. 2020CA00002 6
(4) The sentence is contrary to law.
{¶ 20} As noted by the state, R.C. 2953.08(A) was adopted as part of Senate Bill
2. Sistrunk committed his aggravated burglary offense before Senate Bill 2's July 1, 1996
effective date. In State v. Rush, 83 Ohio St.3d 53, 697 N.E.2d 634, 1998-Ohio-423,
certiorari denied (1999), 525 U.S. 1151, 119 S.Ct. 1052, 143 L.Ed.2d 58, the Ohio
Supreme Court unequivocally held that the "amended sentencing provisions of [Senate
Bill 2] apply only to those crimes committed on or after July 1, 1996." Id. at paragraph two
of the syllabus. See, also, State v. Warren, 118 Ohio St.3d 200, 887 N.E.2d 1145, 2008-
Ohio-2011 (extensive revisions to criminal statutes that were enacted in Senate Bill 2,
effective July 1, 1996, apply only to crimes committed on or after July 1, 1996; even
though Warren was indicted in 2004, the case was governed by the law in effect in 1988
as the crimes were committed in 1988). The remedy set forth in R.C. 2953.08(A)(4) is
therefore not applicable in Sistrunk's case.
{¶ 21} Further, even if none of the forgoing were true, while Sistrunk argues he
was not informed of his appellate rights during his sentencing hearing, he has failed to
provide this court with a transcript of that hearing. It is well-settled that when portions of
the transcript necessary to resolve issues are not part of the record on appeal, we must
presume regularity in the trial court proceedings. In re Craig, 5th Dist. Tuscarawas No.
2008 AP 05 0030, 2008-Ohio-4251, ¶ 9, citing Knapp v. Edwards Laboratories (1980), 61
Ohio St.2d 197, 400 N.E.2d 384. The Appellate Rules require an appellant's brief to
support the arguments therein "with citations to the authorities, statutes, and parts of the
record on which appellant relies." App.R. 16(A)(7).
Stark County, Case No. 2020CA00002 7
{¶ 22} For the forgoing reasons, Sistrunk's first assignment of error is overruled.
{¶ 23} Sistrunk next appears to argue he was denied due process when his
probation was revoked because he was never advised of the terms and conditions of his
probation, and further, because the trial court revoked his probation without providing him
a hearing and written notice of the violations.
{¶ 24} As we found above, Sistrunk's second assignment of error is also barred by
res judicata. Sistrunk could have raised this issue in a direct appeal from the revocation
of his probation, but failed to do so. The matter is therefore barred in his present appeal.
{¶ 25} Even if the matter were not barred however, according to the record,
Sistrunk's November 3, 1997 judgment entry, granting his judicial release and placing him
on probation clearly outlines outlined eleven standard conditions of probation and four
special conditions. The record additionally reflects that on July 27, 1998, Sistrunk's
probation officer filed a Motion to Revoke Probation or Modify Former Order which
outlined eight probation violations committed by Sistrunk. Finally, the record shows
Sistrunk waived an evidentiary hearing.
{¶ 26} Sistrunk's second assignment of error is overruled.

Outcome: The judgment of the Stark County Court of Common Pleas is affirmed.

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