[Cite as State v. Butler, 2014-Ohio-2758.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
DERRICK L. BUTLER : Case No. 14CA01
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2012CR0283H
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 20, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN C. NIEFT DERRICK L. BUTLER, Pro Se
38 South Park Street Inmate No. 632-613
Mansfield, OH 44902 Marion Correctional Institution
P.O. Box 57
Marion, OH 43301
Richland County, Case No. 14CA01 2
Farmer, P.J.
{¶1} On October 17, 2012, appellant, Derrick Butler, pled guilty to one count of
conspiracy in violation of R.C. 2923.01, two counts of aiding and abetting aggravated
burglary in violation of R.C. 2911.11, one count of aiding and abetting aggravated
robbery in violation of R.C. 2911.01, one count of aiding and abetting kidnapping in
violation of R.C. 2905.01, one count of obstructing justice in violation of R.C. 2921.32,
and one count of tampering with evidence in violation of R.C. 2921.12. By sentencing
entry filed October 18, 2012, the trial court sentenced appellant to an aggregate term of
six years in prison. Appellant did not file an appeal.
{¶2} On December 9, 2013, appellant filed a motion for allied offense
determination, claiming the trial court failed to issue a determination on the issue, and
failed to inform him of any consequences of violating post-release control. By judgment
entry filed December 23, 2013, the trial court denied the motion.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "WHETHER THE FAILURE TO PROPERLY NOTIFY APPELLANT THAT
A VIOLATION OF A POSTRELEASE CONTROL SANCTION WOULD RESULT IN A
NEW PRISON TERM OF UP TO NINE MONTHS IN DURATION, O.R.C. §
2943.032(E), RENDERS THAT PORTION OF THE SENTENCE A NULLITY AND
VOID. SEE: STATE V. BAILEY, 2008 WL 4598753, 2008 OHIO 5357; AND, O.R.C. §
2929.19(B)(3)(e)."
Richland County, Case No. 14CA01 3
II
{¶5} "WHETHER A TRIAL COURT'S DISREGARD FOR THE 'STATUTORY
REQUIREMENTS' OF: O.R.C. § 2941.25(A) IMPLICATES DUE PROCESS AND
RENDERS THE RESULTING JUDGMENT VOID AB INITIO. SEE: BROWN V. OHIO,
432 U.S. 161, 165."
{¶6} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, states the following:
(E) Determination and judgment on appeal
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.
The decision may be by judgment entry in which case it will not be
published in any form.
{¶7} This appeal shall be considered in accordance with the aforementioned
rule.
I
{¶8} Appellant claims the trial court erred in failing to inform him that a violation
of a post-release control sanction would result in a new prison sentence of up to nine
months pursuant to R.C. 2943.032. We disagree.
{¶9} R.C. 2943.032 states the following:
Richland County, Case No. 14CA01 4
Prior to accepting a guilty plea or a plea of no contest to an
indictment, information, or complaint that charges a felony, the court shall
inform the defendant personally that, if the defendant pleads guilty or no
contest to the felony so charged or any other felony, if the court imposes a
prison term upon the defendant for the felony, and if the offender violates
the conditions of a post-release control sanction imposed by the parole
board upon the completion of the stated prison term, the parole board may
impose upon the offender a residential sanction that includes a new prison
term of up to nine months.
{¶10} During the plea colloquy between the trial court and appellant on October
17, 2012, the trial court informed appellant of the following (T. at 12-13):
THE COURT: Okay. Before we go any further, there's two
concepts that you must understand so that we can talk about punishment
realistically. One of them is post-release control. The other one is
community control.***
Now, post-release control is a real kick. It's a real kick. You can go
to prison and do every minute of your sentence and then be placed on
post-release control. If you violate post-release control rules, you can go
back to do up to one half the time you've already done.
Richland County, Case No. 14CA01 5
Using an example that's going to be very important here is this
gentleman here that's pleading guilty to felonies and we agreed to a six
year sentence, but he's got five years post-release control. Once he's
completed that six year sentence, he's going to be on post-release control
for five years. And if he violates post-release control rules, he can go
back to the institution to do up to three more years.
How it's ordinarily done, a person on PRC violates the rules, gets a
penalty, and goes back to prison one, two, three, four, maybe up to nine
months. They'll get out again, violate again, go back again.
{¶11} Appellant said he understood the concept of post-release control. T. at
14. Prior to accepting appellant's guilty pleas, the trial court informed him that he would
be subject to mandatory five years post-release control. T. at 16. The trial court
informed him again during sentencing. T. at 21. The sentencing entry filed October 18,
2013 includes the notification of mandatory five years post-release control, and any
violations "could result in additional prison time up to 50% of this sentence."
{¶12} The trial court clearly informed appellant of the consequences of violating
post-release control, and specifically stated a violator "gets a penalty, and goes back to
prison one, two, three, four, maybe up to nine months."
{¶13} Assignment of Error I is denied.
II
{¶14} Appellant claims the trial court erred in failing to make a determination on
the issue of allied offenses. We disagree.
Richland County, Case No. 14CA01 6
{¶15} Appellant did not file an appeal of his sentence. We find the arguments
herein to be res judicata pursuant to the well-reasoned analysis by this court in State v.
Currie, 5th Dist. Stark No. 2013CA00155, 2013-Ohio-5223. See also, State v. Hickman,
5th Dist. Licking No. 11-CA-134, 2012-Ohio-3050. Res judicata is defined as "[a] valid,
final judgment rendered upon the merits bars all subsequent actions based upon any
claim arising out of the transaction or occurrence that was the subject matter of the
previous action." Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, syllabus.
"The res judicata bar applies to any defense that was raised or could have been raised
in a criminal defendant's prior direct appeal from his conviction and/or sentence. State
v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967)." Currie at ¶ 15.
{¶16} Assignment of Error II is denied.
Richland County, Case No. 14CA01 7
{¶17} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby affirmed.
By Farmer, P.J.
Delaney, J. and
Baldwin, J. concur.
SGF/sg 514
State v. Butler
Combined Opinion