[Cite as State v. Stewart, 2011-Ohio-1911.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 10-CA-166
MICHAEL STEWART :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas Case No. 1999-CR-1409
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: April 18, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RONALD MARK CALDWELL 0030663 JEREMY J. MASTERS 0079587
Assistant Prosecuting Attorney Office of the Ohio Public Defender
Stark County Prosecutor 250 E. Broad St., Ste. 1400
110 Central Plaza, South, Ste. 510 Columbus, Ohio 43215
Canton, Ohio 44702
[Cite as State v. Stewart, 2011-Ohio-1911.]
Delaney, J.
{¶1} Defendant-Appellant, Michael Stewart appeals the judgment of the Stark
County Court of Common Pleas, which classified him as a sexual predator in 2000.
However, the judgment entry that he appeals this classification from deals strictly with
correcting an error regarding post-release control. The State of Ohio is Plaintiff-
Appellee.
{¶2} In 1999, Appellant was charged with one count of rape, in violation of R.C.
2907.02(A)(2), and one count of aggravated burglary, in violation of R.C. 2911.11(A)(1)
for breaking into the apartment of his estranged wife and raping her. After a jury trial,
Appellant was convicted of rape, but the jury was unable to come to a decision on the
aggravated burglary charge. Appellant was sentenced to a term of 10 years in prison
and was classified as a sexual predator after a hearing.
{¶3} Appellant appealed his conviction to this court in State v. Stewart, 5th Dist.
Nos. 2000CA0356, 2000CA0357, 2001-Ohio-1775, and raised three assignments of
error, including an assignment that his sexual predator classification was erroneous.
This Court affirmed the judgment of the Stark County Common Pleas Court.
{¶4} Appellant subsequently filed a post-conviction petition, challenging his
conviction. His claim was denied by the trial court and no appeal was taken from that
judgment.
{¶5} In 2010, Appellant was renotified of his post-release control obligations via
video conference in order to correct the imposition of post-release control. In the 2000
sentencing entry, the trial court imposed a period of post-release control “up to” a
maximum period of five years. In the 2010 sentencing entry, the court amended the
Stark County, Case No. 10-CA-166 3
entry to indicate that Appellant must serve “a mandatory period of five (5) years of post-
release control pursuant to R.C. 2967.28(B).” It is from this 2010 sentencing entry that
Appellant now appeals.
{¶6} Appellant raises one Assignment of Error:
{¶7} “I. THE TRIAL COURT ERRED IN FINDING MICHAEL STEWART TO
BE A SEXUAL PREDATOR (OCTOBER 19, 2000 JOURNAL ENTRY, P. 1).”
I.
{¶1} In Appellant’s sole assignment of error, he argues that the trial court erred
in classifying him as sexual predator in 2000.
{¶2} Appellant’s claims are without merit. Recently, the Ohio Supreme Court,
in State v. Fischer, stated that “(1) when a judge fails to impose statutorily mandated
post-release control as part of a defendant's sentence, that part of the sentence that
was void must be set aside, and,
{¶3} “(2) defendant's remaining claims, which did not involve a void sentence
or judgment, were barred by res judicata; overruling State v. Bezak, 114 Ohio St.3d 94,
2007-Ohio-3250, 868 N.E.2d 961.” State v. Fischer, 128 Ohio St.3d 92, 2010 -Ohio-
6238, 942 N.E.2d 332.
{¶4} Accordingly, Appellant is precluded from contesting his sexual predator
classification from 2000.
{¶5} Appellant’s assignment of error is overruled.
Stark County, Case No. 10-CA-166 4
{¶6} For the foregoing reasons, the judgment of the Stark County Court of
Common Pleas is affirmed.
By: Delaney, J.
Gwin, P.J. and
Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
[Cite as State v. Stewart, 2011-Ohio-1911.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
MICHAEL STEWART :
:
Defendant-Appellant : Case No. 10-CA-166
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN