[Cite as State v. Boylen, 2012-Ohio-4730.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 2012CA00064
ADAM BOYLEN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 1999CR0712
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 9, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO, ADAM BOYLEN, PRO SE
PROSECUTING ATTORNEY, P.O. Box 184
STARK COUNTY, OHIO Canal Fulton, Ohio 44612
By: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appelate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2012CA00064 2
Hoffman, P.J.
{¶1} Defendant-appellant Adam Boylen appeals the March 14, 2012 Judgment
Entry entered by the Stark County Court of Common Pleas. Plaintiff-appellee is the
state of Ohio.
STATEMENT OF THE CASE1
{¶2} On June 11, 1999, the Stark County Grand Jury indicted appellant, Adam
Boylen, on twelve counts of aggravated robbery, in violation of R.C. 2911.01 (Case
No.1999CR0683). On July 6, 1999, the Stark County Grand Jury issued a second
indictment against Appellant, charging him with five additional counts of aggravated
robbery and one count of grand theft of a motor vehicle, in violation of R.C. 2913.02
(Case No.1999CR0712). Said charges arose from incidents over a three week period,
from May 13, 1999, to June 2, 1999, involving commercial establishments; i.e.,
convenience stores, gas stations, dry cleaners, sub shops. On August 19, 1999,
Appellant pled guilty as charged. By judgment entries filed August 20, 1999, the trial
court sentenced Appellant to thirty-two years in Case No.1999CR0683 and eighteen
years and five months in Case No.1999CR0712 for a total aggregate term of fifty years
and five months in prison.
{¶3} Appellant appealed his sentences. This court affirmed. See, State v.
Boylen (November 13, 2000), Stark App. No.1999CA00278.
{¶4} On October 13, 2001, Appellant filed a motion to withdraw his guilty pleas.
The motion was denied and Appellant filed an appeal with this Court. This Court
1
A rendition of the facts is not necessary for our disposition of this appeal.
Stark County, Case No. 2012CA00064 3
vacated the denial, and remanded the matter to the trial court for an evidentiary hearing.
See, State v. Boylen, Stark App. No.2002CA00179, 2002-Ohio-6983.
{¶5} An evidentiary hearing was held on July 24, 2003. By agreement of the
parties, Appellant withdrew his guilty pleas and entered into a negotiated plea
agreement. By judgment entries filed July 29, 2003, the trial court sentenced Appellant
to thirteen years in prison. The trial court further ordered a mandatory period of post-
release control "up to a maximum of five years."
{¶6} Appellant filed an appeal to this Court in State v. Boylen 5th Dist. No.
2003CA00304, 305, 2004-Ohio-1283. This Court affirmed the trial court's sentence per
the negotiated plea agreement.
{¶7} On March 2, 2012, the trial court held a hearing for the purpose of
notifying Appellant of the mandatory nature of his post-release control with respect to
Case No. 1999-CR-0712. Via Judgment Entry of March 14, 2012, the trial court entered
sentence. Appellant now appeals, assigning as error:
{¶8} "I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT BY REVISITING AND REFORMING A NEGOTIATED GUILTY PLEA
AGREEMENT THROUGH A POST RELEASE CONTROL NOTIFICATION
CORRECTION HEARING."
{¶9} Appellant avers post-release control was not part of his understanding of
the negotiated plea agreement, and the trial court was not authorized to revisit or reform
the agreement.
{¶10} Upon review of the record and the statement of the case, supra, Appellant
was sentenced pursuant to the negotiated plea agreement via Judgment Entry of July
Stark County, Case No. 2012CA00064 4
29, 2003. The sentencing entry ordered a mandatory period of post-release control "up
to a maximum of five years." Any alleged error with regard to violation or
noncompliance with the negotiated plea agreement by the imposition of post-release
control could have been raised on direct appeal from the July 29, 2003 entry. Having
failed to do so, Appellant's argument is now barred by the doctrine of res judicata. As a
result, post-release control was made part of Appellant's sentence in 2003 with the "up
to five years" language.
{¶11} Prior to his release from prison, the trial court conducted a hearing to
notify Appellant of the definite term of his mandatory post-release control, in accordance
with State v. Bloomer 122 Ohio St.3d 200, 2009-Ohio2462 and State v. Simpkins 117
Ohio St.3d 420, 2008-Ohio-1197.
{¶12} In State v. Aleshire, Fifth Dist. No. 2011-CA-73, 2012-Ohio-16, this Court
held,
{¶13} "Pursuant to State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, the
scope of the re-sentencing hearing was limited to the proper imposition of post-release
control. In Fischer, the Supreme Court of Ohio held that when a defendant receives a
sentence that does not properly include post-release control, 'that part of the sentence
is void and must be set aside. Neither the Constitution nor common sense commands
anything more.' Fischer at ¶ 26. (Emphasis sic.) Thus, the Supreme Court modified its
earlier decision in Bezak to clarify that 'only the offending portion of the sentence is
subject to review and correction.' Fischer at ¶ 27. Pursuant to Fischer, '[t]he new
sentencing hearing to which an offender is entitled * * * is limited to proper imposition of
post-release control.' Fischer at paragraph two of the syllabus. The Fischer court
Stark County, Case No. 2012CA00064 5
reasoned, 'the post-release-control component of the sentence is fully capable of being
separated from the rest of the sentence as an independent component, and the limited
resentencing must cover only the post-release control.' Id. at ¶ 17. Thus, 'only the
postrelease-control aspect of the sentence * * * is void and * * * must be rectified,' and
'[t]he remainder of the sentence, which the defendant did not successfully challenge,
remains valid under the principles of res judicata.' Id.
{¶14} "In the case at bar, appellant received an identical sentence to the one
imposed on his original plea with the only exception being the notification of five years
of mandatory post-release control. Under Fisher, all other parts of appellant's sentence
were valid and remained in full force and effect. Thus, appellant cannot demonstrate
prejudice from the trial court's sentencing in the present case. He is in the same position
he would have been in had the trial court held a Fisher hearing to simply advise him of
post-release controls."
{¶15} Based upon the rationale set forth above, the trial court did not err in
sentencing Appellant. The sole assignment of error is overruled, and Appellant's
sentence in the Stark County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Edwards, J. concur s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Stark County, Case No. 2012CA00064 6
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ADAM BOYLEN :
:
Defendant-Appellant : Case No. 2012CA00064
For the reasons stated in our accompanying Opinion, Appellant's sentence in the
Stark County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS