[Cite as State v. Alston, 2017-Ohio-2701.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 16CA010945
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARK ALSTON COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 05CR067825
DECISION AND JOURNAL ENTRY
Dated: May 8, 2017
HENSAL, Presiding Judge.
{¶1} Mark Alston appeals judgments of the Lorain County Court of Common Pleas
that denied his motion to vacate and correct void sentence and his motion for modification of
sentence. For the following reasons, this Court affirms.
I.
{¶2} In 2005, a jury found Mr. Alston guilty of murder, aggravated robbery, having
weapons under disability, felonious assault, and tampering with evidence as well as several
firearm specifications. The trial court sentenced him to a total of 24 years to life in prison. This
Court upheld his convictions on appeal. In March 2016, Mr. Alston moved to vacate and correct
his sentence, arguing that it is void because it imposes post-release control for an unclassified
special felony and does not impose it for his other offenses. A week later, Mr. Alston moved for
modification of the degree of offenses charged, arguing that the trial court sentenced him for
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offense levels that are higher than supported by the jury’s verdicts. The trial court denied his
motions. Mr. Alston has appealed, assigning two errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING APPELLANT, MR. ALSTON’S
MOTION PURSUANT TO CRIM. R. 47 AND CRIM. R. 36, CLERICAL
MISTAKES, TO VACATE AND CORRECT VOID SENTENCE HEARING
JUDGMENT ORDER RECORD ON 7/8/2005, THAT IMPOSES A 5 YEAR
POST-RELEASE CONTROL FOR AN UNCLASSIFIED SPECIAL FELONY
OF MURDER IN VIOLATION OF DEFENDANT, MR. ALSTON, FIFTH,
SIXTH, AND FOURTEENTH AMENDMENT RIGHT UNDER THE UNITED
STATES CONSTITUTION, AND SECTION 10 AND 16 ARTICLE I OF THE
OHIO CONSTITUTION.
{¶3} Mr. Alston argues that his sentence is void because it imposes post-release control
for his murder conviction, which is an unclassified special felony to which post-release control
does not apply. He also argues that his sentence fails to impose post-release control for the
offenses to which it does apply. Although the trial court sentenced Mr. Alston in 2005, the Ohio
Supreme Court has held that “[a] sentence that does not include the statutorily mandated term of
postrelease 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.” State v. Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, paragraph one of the syllabus.
{¶4} At sentencing, the trial court did not specifically indicate the offenses to which its
imposition of post-release control applied. It merely told Mr. Alston that, upon his release, he
would be placed on post-release control for five years. Five years is the correct length of post-
release control for his aggravated robbery conviction, which is a felony of the first degree. R.C.
2967.28(B)(1). This Court has recognized that, if a court is sentencing for multiple convictions,
its “imposition of one term of postrelease control is proper.” State v. Kracker, 9th Dist. Summit
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No. 25315, 2010-Ohio-5329, ¶ 6; see R.C. 2967.28(F)(4)(c) (“If an offender is subject to more
than one period of post-release control, the period * * * for all of the sentences shall be the
period * * * that expires last[.]”).
{¶5} Upon review of the record, we conclude that the trial court correctly determined
that it had to impose a five-year term of post-release control on Mr. Alston under Section
2967.28. There is nothing in the record that suggests that it imposed post-release control for Mr.
Alston’s murder offense instead of his aggravated robbery and other offenses. Mr. Alston’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED PLAIN ERROR AND THE TRIAL
COURT ERRED IN DENYING APPELLANT, MR. ALSTON’S, MOTION
PURSUANT TO CRIM R.47 AND CRIM. R. 32(C), SENTENCE
ENTITLEMENT OF MODIFICATION OF DEGREE OF OFFENSE
DISCHARGED OF THE OFFENSES CHARGED IN THE APPELLANT, MR.
ALSTON’S, ONE (1), COUNT INDICTMENT AND INCLUDED FOUR (4),
COUNT SUPPLEMENTAL INDICTIMENT WITH FOUR (4), COUNT
FIREARM SPECIFICATION STATED IN THE JURY VERDICT FORM OF
CONVICTION WAS NOT IN COMPLIANCE WITH R.C. 2945.75(A)(2), AND
THE TRIAL COURT ENTERED A[N] UNLAWFUL SENTENCE ENHANCED
ON THE GREATER OFFENSES ON ALL FIVE (5), COUNTS IN THE JURY
VERDICT FORM IN VIOLATION OF THE APPELLANT, MR. ALSTON’S[,]
FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHT UNDER THE
UNITED STATES CONSTITUTION, AND SECTION 10 AND 16 ARTICLE I
OF THE OHIO CONSTITUTION.
{¶6} Mr. Alston also argues that the trial court incorrectly denied his motion for
modification of the degree of the offenses charged. According to Mr. Alston, his convictions are
for higher offense levels than are supported by the jury’s verdicts.
{¶7} “Although the doctrine of res judicata does not preclude review of a void
sentence, res judicata still applies to other aspects of the merits of a conviction, including the
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determination of guilt and the lawful elements of the ensuing sentence.” Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, at paragraph three of the syllabus.
Under the doctrine of res judicata, a final judgment of conviction bars a convicted
defendant who was represented by counsel 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.
State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus.
{¶8} The trial court sentenced Mr. Alston in 2005 and this Court denied his subsequent
appeal. Mr. Alston could have argued on direct appeal that the trial court convicted and
sentenced him for higher offense levels than are supported by the jury’s verdicts. We, therefore,
conclude that his argument is barred under the doctrine of res judicata. Mr. Alston’s second
assignment of error is overruled.
III.
{¶9} Mr. Alston’s assignments of error are overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting
Attorney, for Appellee.
MARK ALSTON, pro se, Appellant.