[Cite as State v. Black, 2016-Ohio-5612.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. 16 CA 4
KENNETH BLACK, II
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 12 CR 489 D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 19, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BAMBI COUCH PAGE KENNETH BLACK II
PROSECUTING ATTORNEY PRO SE
DANIEL M. ROGERS MARION CORR. INSTITUTION
ASSISTANT PROSECUTOR Post Office Box 57
38 South Park Street 940 Marion-Williamsport Road
Mansfield, Ohio 44902 Marion, Ohio 43301
Richland County, Case No. 16 CA 4 2
Wise, J.
{¶1} Defendant-Appellant Kenneth Black II appeals the decision of the Court of
Common Pleas, Richland County, which denied his pro se “motion to correct sentence
unauthorized by law.” Appellee is the State of Ohio. The relevant facts leading to this
appeal are as follows:
{¶2} On August 13, 2012, under common pleas case number 2012-CR-0489,
the Richland County Grand Jury indicted appellant on one count of aggravated burglary
(a first-degree felony), two counts of kidnapping (both first-degree felonies), one count of
assault (a fourth-degree felony), one count of having weapons under a disability (a third-
degree felony), and one count of possessing a defaced firearm (a first-degree
misdemeanor). The first three counts each included a repeat violent offender
specification. The charges stemmed from appellant’s July 20, 2012 armed break-in of his
estranged wife’s residence.
{¶3} On October 10, 2012, under 2012-CR-0489, appellant pled guilty to all six
counts and the three RVO specifications. Appellant and the State jointly recommended
an agreed sentence. The trial court thereupon sentenced appellant to six years in prison
on Count I, six years on Counts II and III (merged), eighteen months on Count IV, two
years on Count V, and six months on Count VI. The terms were ordered to be served
concurrently, but consecutive to an 861-day prison sentence imposed under case number
2008-CR-0288 for violating appellant’s post-release control in that case.
{¶4} On March 29, 2013, appellant filed a pro se “petition to vacate or set aside
judgment of conviction or sentence,” along with a supporting affidavit. The State
responded on April 17, 2013.
Richland County, Case No. 16 CA 4 3
{¶5} On July 17, 2013, appellant, with the assistance of the Ohio Public
Defender, filed a “motion to vacate judicial sanction,” arguing the post-release control in
2008-CR-0288 had not been properly imposed, thus voiding the 861-day sanction
imposed in regard to 2012-CR-0489 for violating same. The State responded to
appellant’s motion on September 23, 2013.
{¶6} On February 5, 2014, the trial court issued a six-page judgment entry
overruling both appellant’s “petition to vacate or set aside” and his “motion to vacate.”
{¶7} Appellant commenced an appeal of the trial court’s above decision on
March 3, 2014. This Court assigned the appeal case number 2014CA0014. The matter
was placed on the accelerated docket. However, on May 22, 2014, we dismissed the
appeal for want of prosecution. Appellant then sought reconsideration of our dismissal,
but we denied the motion to reconsider on June 26, 2014.
{¶8} On June 22, 2015, appellant filed a pro se “motion to correct sentence
unauthorized by law,” again arguing that arguing the post-release control in 2008-CR-
0288 had not been properly imposed. The State filed a response on December 17, 2015.
{¶9} The trial court denied appellant’s motion to correct sentence via judgment
entry on January 8, 2016, stating it was relying on the same reasons set forth in its
decision of February 5, 2014.
{¶10} On January 28, 2016, appellant filed a notice of appeal. He herein raises
the following sole Assignment of Error:
{¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE ERROR WHEN IT IMPOSED A CONSECUTIVE JUDICIAL-SANCTION
SENTENCE IN 2012 BASED UPON A VOID POSTRELEASE CONTROL IN 2008 THEN
Richland County, Case No. 16 CA 4 4
IMPROPERLY CONSTRUED MR. BLACK’S MOTION TO CORRECT THAT
SENTENCE UNAUTHORIZED BY LAW, AS A PETITION FOR POSTCONVICTION
RELIEF, WHEN A VOID JUDGMENT CAN BE ATTACKED AT ANY TIME.”
I.
{¶12} In his sole Assignment of Error, appellant challenges the trial court’s
decision to deny his “motion to correct sentence” in case 2012-CR-0489, contending the
trial court therein had improperly imposed the 861-day judicial sanction in 2012 based
upon an allegedly void post-release control order in case 2008-CR-0288.
{¶13} Under Ohio law, a sentence that does not contain a term mandated by
statute is void. State v. Simpkins, 117 Ohio St.3d 420, 2008–Ohio–1197, 884 N.E.2d 568,
¶ 14; State v. Bezak, 114 Ohio St.3d 94, 2007–Ohio–3250, 868 N.E.2d 961. In State v.
Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, the Ohio Supreme Court held in pertinent
part that “[a] sentence that does not include the statutorily mandated term of post-release
control is void, is not precluded from appellate review by principles of res judicata, and
may be reviewed at any time, on direct appeal or by collateral attack.” Id., at paragraph
one of the syllabus. In light of this voidness doctrine, where a prior sentence does not
include a statutorily mandated term of post-release control in the sentencing entry, the
trial court cannot order the remaining PRC time imposed upon a new violation and
sentence. See State v. Murphy, 5th Dist. Muskingum No. CT2013–0028, 2014–Ohio–
323, ¶ 7.
{¶14} In the case sub judice, appellant does not deny he made two prior attempts
in 2013 to vacate his 2012 sentence on the grounds that the post-release control imposed
from 2008-CR-0288 was void. But he urges that since res judicata does not preclude
Richland County, Case No. 16 CA 4 5
post-sentence challenges based on claims of invalid post-release control (Fischer, supra),
relief from the 861-day additional PRC sanction is warranted despite the trial court’s
previous rejections of his two prior petitions/motions to vacate.
{¶15} In the Simpkins/Fischer/Billiter line of holdings, the Ohio Supreme Court
developed its modern doctrine recognizing challenges by convicted defendants to post-
release control errors, under the void sentence doctrine, despite the traditional finality of
a sentencing entry. However, we do not accept appellant’s implicit contention herein that
this window of opportunity for a defendant to overcome the res judicata doctrine was
intended to continue ad infinitum via repetitive post-conviction challenges to his or her
sentence. In other words, where a defendant has previously sought correction of his or
her sentence under a “voidness” theory, and the trial court has previously rejected such
motion (followed by if applicable, a failed or unsuccessful appeal), the law must recognize
the finality of such post-conviction judgment.
{¶16} The decision of the Eighth District in State v. Tate, 8th Dist. Cuyahoga No.
93936, 2010-Ohio-2357, is instructive. In that case, the defendant, Tate, had filed a prior
motion to withdraw his guilty plea, which was denied. He thereafter failed to properly
appeal the trial court's denial of said motion, and the appellate court dismissed it for failure
to file a record. Tate then filed another motion to withdraw his guilty plea with the trial
court. On his appeal of the trial court’s rejection of this second motion, the Eighth District
Court held: “*** [B]ecause the trial court's denial of Tate's first motion to withdraw his guilty
plea was an adjudication on the merits of his claims, was based upon the same facts, and
sought the same relief as the second motion, the trial court's denial of the first motion
operated under res judicata to bar the successive motion. See State v. Jackson,
Richland County, Case No. 16 CA 4 6
Cuyahoga App. No. 92013, 2009-Ohio-3292 [sic]. Thus, because Tate did not raise the
issue of postrelease control during his plea on direct appeal or properly appeal the court's
denial of his first motion, his successive motion is barred by res judicata.” Id. at ¶ 10.
{¶17} In the present case, appellant’s most recent filing, his “motion to correct
sentence,” asserted claims regarding post-release control that had been rejected in 2014
by the trial court when his “petition to set aside” and his “motion to vacate” were overruled.
Furthermore, no significant new facts or evidence were brought out in said motion to
correct sentence. We therefore hold that after this Court dismissed appellant’s 2014
appeal under our case number 2014CA0014 for want of prosecution and thereafter
denied his motion to reconsider the dismissal, and once he failed to perfect an appeal
therefrom to the Ohio Supreme Court, res judicata became a bar to revisiting the matter.1
{¶18} We hold the trial court therefore did not err in its January 8, 2016 judgment
entry by declining to afford appellant relief from the additional 861 days added to his 2012
sentence due to violating his 2008 post-release control sanction.
1 In so holding, however, we do not concur with the trial court’s assessment of appellant’s
motion to correct sentence as a form of an untimely post-conviction relief petition. See,
e.g., State v. Douse, 8th Dist. Cuyahoga No. 98249, 2013-Ohio-254, ¶¶ 9-10; State v.
Rabe, 12th Dist. Clermont No. CA2013-04-027, 2013-Ohio-4867, ¶ 8.
Richland County, Case No. 16 CA 4 7
{¶19} Accordingly, appellant's sole Assignment of Error is overruled.
{¶20} For the foregoing reasons, the judgment of the Court of Common Pleas,
Richland County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, P. J., and
Gwin, J., concur.
JWW/d 0804