[Cite as State v. Fitch, 2021-Ohio-1150.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Craig R. Baldwin, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. William B. Hoffman, J.
-vs-
Case Nos. 2020 CA 00020 &
2020 CA 00060
GREGORY E. FITCH, JR.
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Case Nos. 2005 CR
00381
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 31, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM C. HAYES GREGORY E. FITCH, JR.
Licking County Prosecutor Inmate #A509624
Marion Correctional Institute
PAULA M. SAWYERS P.O. Box 57
Assistant Prosecuting Attorney Marion, Ohio 43301
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case Nos. 2020 CA 00020 & 2020 CA 00060 2
Hoffman, J.
{¶1} Defendant-appellant Gregory Fitch appeals the judgments entered by the
Licking County Common Pleas Court denying the Plaintiff-appellee state of Ohio’s motion
for resentencing, and overruling Appellant’s motion for appointed counsel to pursue an
appeal from the trial court’s entry denying the State’s motion for resentencing.
STATEMENT OF THE CASE1
{¶2} On December 23, 2005, Appellant was convicted of rape of a child under
the age of ten, and sentenced to life in prison. He appealed to this Court, and we affirmed
the conviction and sentence. State v. Fitch, 5th Dist. Licking No. 06CA7, 2006-Ohio-5406.
{¶3} The State filed a motion to resentence Appellant to add a term of post-
release control on September 20, 2019. Following a hearing, the trial court overruled the
motion on the basis Appellant was serving a life sentence to which post-release control
did not apply. It is from the January 30, 2020 judgment denying the State’s motion
Appellant prosecutes appellate case number 2020 CA 00020, assigning as error:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED
TO CORRECT THE VOID TERM OF POST RELEASE CONTROL AT THE
RESENTENCING HEARING PURSUANT TO O.R.C. §2929.191
VIOLATING PROCEDURAL DUE PROCESS AND SUBSTANTIAL DUE
PROCESS OF THE FIFTH AND FOURTEENTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION AND OHIO CONSTITUTION,
ARTICLE I, SEC. 10.
1 A rendition of the facts is unnecessary to our resolution of the issues raised on appeal.
Licking County, Case Nos. 2020 CA 00020 & 2020 CA 00060 3
{¶4} Appellant filed a motion for appointed counsel to prosecute his appeal in
case number 2020 CA 00020, which was denied by the trial court.2 It is from the
September 10, 2020 judgment of the trial court denying his motion for appointed counsel
Appellant prosecutes his appeal in case number 2020 CA 00060, assigning as error:
THE TRIAL COURT ERRED WHEN IT FAILED TO COMPLY WITH
CRIMINAL RULE 44(A)’S GUARANTEE THAT A DEFENDANT HAS A
RIGHT TO APPOINTED COUNSEL FOR HIS DIRECT APPEAL, AND
CRIMINAL RULE 32(B)’S MANDATE THAT THE COURT SHALL NOTIFY
THE DEFENDANT THAT IF HE IS UNABLE TO OBTAIN COUNSEL FOR
AN APPEAL, COUNSEL WILL BE APPOINTED WITHOUT COST, IN
VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION, SECTION 10, AND 16,
ARTICLE I, AND SECTION 3, ARTICLE IV, OHIO CONSTITUTION.
{¶5} This Court consolidated the appeals on February 8, 2021.
I.
{¶6} In his first assignment of error, Appellant argues the trial court erred in failing
to correct the void term of post release control.
{¶7} On May 14, 2020, the Ohio Supreme Court reversed its prior jurisprudence
which held a sentence which did not properly impose post-release control was void, and
2Appellant also filed a motion in this Court for appointed counsel on appeal in 2020 CA 00020, which was
denied on March 16, 2020.
Licking County, Case Nos. 2020 CA 00020 & 2020 CA 00060 4
thus subject to challenge in proceedings other than a direct appeal from the original
judgment of conviction and sentence. State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-
2913, 159 N.E.3d 248. Pursuant to Harper, any error in a trial court’s exercise of its
subject matter jurisdiction in imposing post-release control renders the judgment voidable,
not void. Id. at ¶42. Because an error in imposition of post-release control renders the
judgment voidable and not void, it is subject to review on direct appeal, and any challenge
to post-release control raised in a collateral proceeding after direct appeal is barred by
res judicata. Id. at ¶41.
{¶8} We find any error in imposition of or failure to impose post-release control
is now barred by res judicata, as this is not a direct appeal from Appellant’s judgment of
conviction and sentence. The first assignment of error is overruled.
II.
{¶9} In his second assignment of error, Appellant argues the trial court erred in
overruling his motion for appointed counsel. Crim.R. 44 only affords a defendant the right
to appointed counsel through his or her first appeal as of right. State v. Clumm, 4th Dist.
Athens No. 08CA32, 2010-Ohio-342, ¶ 1. Similarly, the Ohio and United States
Constitutions do not afford a defendant the right to appointed counsel after his first appeal
as of right. Id. Further, as discussed previously in this opinion, the trial court did not have
jurisdiction to resentence Appellant in the instant case. Because this was a collateral
proceeding and not a direct appeal, we find the trial court did not err in overruling
Appellant’s motion for appointment of counsel.
{¶10} The second assignment of error is overruled.
{¶11} The judgment of the Licking County Common Pleas Court is affirmed.
Licking County, Case Nos. 2020 CA 00020 & 2020 CA 00060 5
By: Hoffman, J.
Baldwin, P.J. and
Gwin, J. concur