Canton, OH - robbery

On August 6, 2010, the Honorable John G. Haas sentenced appellant to

two years in prison and imposed three years of mandatory postrelease control after

appellant pled guilty to robbery in violation of R.C. 2911.02 (Case No. 2010CR0668).

Appellant did not filed an appeal.

{¶ 3} On April 15, 2014, the Honorable John G. Haas sentenced appellant to

three years of community control and imposed three years of optional postrelease

control after appellant pled guilty to possession of cocaine in violation of R.C. 2925.11

and possession of drug paraphernalia in violation of R.C. 2925.14 (Case No.

2013CR1748B). Appellant did not filed an appeal.

{¶ 4} On September 8, 2014, the Honorable J. Curtis Werren sentenced

appellant to six months in prison and imposed three years of optional postrelease

control after appellant pled guilty to possession of heroin in violation of R.C. 2925.11

(Case No. 2014CR1206). Appellant did not filed an appeal.

{¶ 5} On November 7, 2016, the Honorable John G. Haas sentenced appellant

to an aggregate six months in prison and imposed three years of optional postrelease

control after appellant pled guilty to possession of heroin and aggravated possession of

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drugs in violation of R.C. 2925.11 (Case No. 2016CR1624). Appellant did not filed an

appeal.

{¶ 6} On June 29, 2017, the Honorable Kristin G. Farmer sentenced appellant

to six months in prison and imposed three years of optional postrelease control after

appellant pled guilty to aggravated possession of drugs in violation of R.C. 2925.11

(Case No. 2017CR0877). Appellant did not filed an appeal.

{¶ 7} Appellant filed identical motions to vacate postrelease control in the

respective cases on August 19 and 27, 2019. By judgment entries filed on August 27

and 28, 2019, and September 17, 2019, each trial court denied its respective motion.

{¶ 8} Appellant filed an appeal in each case and was given five separate

appellate case numbers. Appellant filed his brief with three assignments of error on

January 23, 2020. Appellant filed a second appellate brief with one assignment of error

on March 16, 2020. On April 2, 2020, appellee moved to strike the second brief. The

motion was taken under advisement. Appellee filed its appellate brief on May 26, 2020,

addressing all four assignments of error. The one assignment of error listed in the

second brief is merely an overall general assignment incorporating the arguments of the

three assignments of error listed in the first brief. Given appellee's opportunity to

address all of the assignments of error, appellee's motion to strike appellant's second

appellate brief filed on March 16, 2020, is denied. Assignments of error are as follows:

I

{¶ 9} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

DENIED SHAFFER'S MOTION TO VACATE POST-RELEASE CONTROL DUE TO

THE FACT THAT IT DID NOT INCLUDE A STATUTORILY MANDATED TERM OF

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POST-RELEASE CONTROL INTO THE SENTENCING ENTRY WHICH RENDERS

THE POST-RELEASE CONTROL OF SHAFFER'S SENTENCE VOID."

II

{¶ 10} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID

NOT REFERENCE THE CORRECT DIVISION OR A DIVISION WHATSOEVER OF

SENTENCING STATUTE R.C. 2929.19 AS APPLICABLE TO SHAFFER INTO ITS

SENTENCING ENTRY."

III

{¶ 11} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID

NOT SUFFICIENTLY INCORPORATE NOTICE OF POST-RELEASE CONTROL INTO

ITS SENTENCE ENTRY AS MANDATED UNDER 'GRIMES.' SPECIFICALLY, THE

SENTENCE ENTRY DID NOT CONTAIN THE CURRENT ADVISEMENT THAT 'ANY

VIOLATION BY THE OFFENDER OF THE CONDITIONS OF POST-RELEASE

CONTROL WILL SUBJECT THE OFFENDER TO THE CONSEQUENCES SET

FORTH IN THAT STATUTE' (R.C. 2967.28)."

IV

{¶ 12} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION

TO VACATE POST-RELEASE CONTROL"

I, II, III, IV

{¶ 13} Each of these assignments of error challenge the trial courts' denials of

appellant's respective motion to vacate postrelease control and will be addressed

collectively.

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{¶ 14} In his motion to vacate postrelease control, appellant argued because the

sentencing entries did not properly impose postrelease control, the sentences are void

and he is not subject to any postrelease control. In support of his arguments, appellant

cited State v. Fischer, 128 Ohio St.3d, 2010-Ohio-6238, 942 N.E.2d 332, State v.

Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, and State v. Baker, 9th

Dist. Summit No. 26411, 2012-Ohio-5645, which relied on State v. Billiter, 134 Ohio

St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960. Fischer, Grimes, and Billiter have all

specifically been overruled by the Supreme Court of Ohio in State v. Harper, --- Ohio

St.3d ---, 2020-Ohio-2913, --- N.E.3d ---.

{¶ 15} In Harper at ¶ 39, the Supreme Court of Ohio acknowledged "now is the

time to realign our void-sentence jurisprudence" and stated the following at ¶ 40:

For all of the reasons stated above, we overrule our precedent to

the extent that it holds that the failure to properly impose postrelease

control in the sentence renders that portion of a defendant's sentence

void. We do this not because we reject the precept that courts lack

authority to substitute a different sentence for that provided by statute, but

because noncompliance with requirements for imposing postrelease

control is best remedied the same way as other trial and sentencing

errors—through timely objections at sentencing and an appeal of the

sentence.

{¶ 16} The Harper court concluded the following at ¶ 42-43:

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A sentence is void when a sentencing court lacks jurisdiction over

the subject-matter of the case or personal jurisdiction over the accused.

When the sentencing court has jurisdiction to act, sentencing errors in the

imposition of postrelease control render the sentence voidable, not void,

and the sentence may be set aside if successfully challenged on direct

appeal.

Having realigned our jurisprudence with the traditional

understanding of void and voidable sentences, we caution prosecuting

attorneys, defense counsel, and pro se defendants throughout this state

that they are now on notice that any claim that the trial court has failed to

properly impose postrelease control in the sentence must be brought on

appeal from the judgment of conviction or the sentence will be subject to

res judicata. See R.C. 2953.02 (providing for appeals in criminal cases);

2953.08 (providing for prosecution and defense appeals of felony

sentences); 2945.67 (providing when the prosecution may appeal).

{¶ 17} Appellant has not made any arguments that any of the trial courts lacked

jurisdiction over the subject-matter of his case or personal jurisdiction over him. A

review of each case indicates the respective trial court had subject-matter and personal

jurisdiction to sentence appellant. Article IV, Section 4(B), Ohio Constitution; R.C.

2931.03. Therefore, any challenges to the imposition of postrelease control should

have been addressed on direct appeal. Appellant did not file a direct appeal in any of

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his cases. Because appellant could have raised his arguments regarding postrelease

control on appeal, he is now barred by the doctrine of res judicata. Harper, supra;

Accord State v. Hudson, --- Ohio St.3d ---, 2020-Ohio-3849, --- N.E.3d --- (applying the

doctrine of res judicata to a case involving the denial of a motion to vacate postrelease

control filed over a decade after the direct appeal wherein postrelease control was not

challenged).

{¶ 18} As explained by the Supreme Court of Ohio in State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus:

Under the doctrine of res judicata, a final judgment of conviction

bars the convicted defendant from raising and litigating in any proceeding,

except an appeal from that judgment, any defense or any 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.

{¶ 19} Upon review, we find each of the trial courts did not err in denying

appellant's motion to vacate postrelease control.

{¶ 20} Assignments of Error I, II, III, and IV are denied.

The judgments of the Court of Common Pleas of Stark County, Ohio are

hereby affirmed.