State v. Williamson ( 2013 )

[Cite as State v. Williamson, 2013-Ohio-3733.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99473
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL WILLIAMSON
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-406972
BEFORE: McCormack, J., Boyle, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: August 29, 2013
FOR APPELLANT
Michael Williamson, pro se
Inmate #423-451
Marion Correctional Institution
P.O. Box 57
Marion, OH 43301
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Michael Williamson, pro se, appeals from a judgment of the Cuyahoga
County Court of Common Pleas denying his “Motion to Correct Sentence.” Williamson
claimed the trial court failed to adequately advise him of his postrelease control in 2002
when sentencing him. He claimed entitlement to a de novo sentencing hearing and
asked the trial court to address several new issues unrelated to postrelease control.
{¶2} Williamson is barred by res judicata to raise any new issues, but, for the
following reasons, we remand the case to the trial court for the limited purpose of
correcting its 2002 judgment entry to reflect a full notification of Williamson’s
postrelease control.
{¶3} In 2001, Williamson was found guilty by a jury of 12 counts of rape for
engaging in sexual conduct with his seven-year-old stepdaughter over an extended period
of time. In February 2002, the trial court sentenced him to 12 consecutive terms of life.
On direct appeal, Williamson, with the assistance of counsel, assigned two errors
regarding his conviction for this court’s review. He claimed that the trial court
improperly admitted hearsay evidence and also that his counsel provided ineffective
assistance by mishandling an exculpatory witness. Finding no merit to his claims, this
court affirmed his conviction in State v. Williamson, 8th Dist. Cuyahoga No. 80982,
2002-Ohio-6503.
{¶4} Williamson did not assign any error in his direct appeal regarding his
sentence, or the way the court imposed postrelease control. Nine years later, however, in
2011, Williamson filed a pro se “Motion to Vacate Void Judgment and Order New
Sentencing Hearing.”
{¶5} He claimed the trial court failed to properly notify him of his postrelease
control when sentencing him in 2002. In his brief, he alleged that, although the trial
court notified him of postrelease control during his sentencing hearing and also
incorporated it into its journal entry, the court failed to notify him of the consequences of
a violation of the postrelease control both at the sentencing hearing and in its judgment
entry. He claimed this defect rendered his sentence void and the court should now
conduct a de novo sentence hearing to resentence him.
{¶6} Williamson, however, did not attach a copy of the transcript of his 2002
sentencing hearing to demonstrate the alleged inadequate notification by the trial court.
The trial court’s 2002 judgment entry did mention postrelease control, stating “post
release control is a part of this prison sentence for the maximum period allowed * * *
under R.C. 2967.28.”
{¶7} In its response to Williamson’s “Motion to Vacate Void Judgment and
Order New Sentencing Hearing,” the state argued that he failed to provide a copy of the
sentencing transcript to support his claim that he was inadequately advised of his
postrelease control. The state requested, in the alternative, that the trial court conduct a
sentencing hearing for the purpose of properly imposing postrelease control prior to his
first scheduled parole hearing date, November 2121.
{¶8} In February 2012, the trial court issued a judgment entry, stating, “Motion to
Vacate Void Judgment and Order New Sentencing Hearing is hereby denied. Court will
resentence defendant on PRC issue only prior to release from prison if necessary.”
Williamson did not appeal from this judgment.
{¶9} Nine months after that judgment entry, in November 2012, Williamson filed
yet another motion pro se, styled as “Motion to Correct Sentence.” He again requested a
new hearing, and in the brief attached to the motion, raised several other claims unrelated
to postrelease control. In January 2013, the trial court summarily denied the motion.
This appeal followed.
{¶10} On appeal, Williamson, pro se, raises seven assignments of error. He
claims (1) the trial court erred in not advising him of his right to a direct appeal, (2) failed
to properly impose postrelease control, (3) failed to consider the sentencing principles set
forth in R.C. 2929.11 and 2929.12, (4) failed to determine the days of jail-time credit, (5)
entered an “incorrect” journal entry, (6) failed to properly advise him of his registration
duties as a sexual predator, and (7) erred by not merging the 12 counts of rape at
sentencing.
{¶11} Under the doctrine of res judicata, a defendant is barred from raising a claim
that was raised or could have been raised on direct appeal. State v. Perry, 10 Ohio St.2d
175, 266 N.E.2d 104 (1967), paragraph nine of the syllabus. As we explain in the
following, Williamson’s claims are barred by the principle of res judicata. The only
exception is his claim regarding an alleged failure by the trial court’s failure to fully
advise him of postrelease control.
{¶12} Williamson was convicted of rape in violation of R.C. 2907.02, which is
both a felony of the first degree and a felony sex offense. An imposition of a mandatory
postrelease control term of five years is necessary for a defendant convicted of felonies of
the first degree or felony sex offenses. R.C. 2967.28(B); State ex rel. Carnail v.
McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110. Therefore, a
mandatory five-year term of postrelease control is included in his sentence.
{¶13} As recently reiterated by the Supreme Court of Ohio, “a trial court must
provide statutorily compliant notification to a defendant regarding postrelease control at
the time of sentencing, including notifying the defendant of the details of the postrelease
control and the consequences of violating postrelease control.” State v. Qualls, 131 Ohio
St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18.
{¶14} When a sentence is not imposed in conformity with the statutory mandates
concerning postrelease control, it is void, and as such, “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.” (Emphasis added.) State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus.
{¶15} Therefore, even though Williamson failed to raise the issue on direct appeal
and did not appeal from the trial court’s February 2012 judgment denying his first motion,
Williamson’s allegation that the trial court failed to fully notify him of postrelease control
is not barred by res judicata. If his allegation is true, the portion of his sentence
regarding postrelease control remains void and subject to appellate review at any time.
Fischer. The state is wrong in its assertion that Williamson’s claim regarding
postrelease control is barred by res judicata.
{¶16} Our review of the record, however, shows that Williamson did not submit a
transcript of the sentencing hearing to demonstrate the alleged deficiency. When an
appellant alleges a deficient postrelease control notification at the sentencing hearing, but
fails to include in the record a transcript of the sentencing hearing, the reviewing court
must presume the regularity and propriety of that hearing and find that appellant was
properly notified of postrelease control at the sentencing hearing. State v. Murray, 6th
Dist. Lucas No. L-10-1059, 2012-Ohio-4996, ¶ 25. See also State v. Smith, 8th Dist.
Cuyahoga No. 94732, 2010-Ohio-6361, ¶ 14. Because Williamson did not submit the
transcript of the sentencing hearing to demonstrate his allegation, we must presume he
had been properly advised of postrelease control at the hearing.
{¶17} However, the trial court is also required to incorporate the postrelease
notification into the sentencing entry. See Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111,
967 N.E.2d 718, at ¶ 18. Here, the 2002 judgment entry stated only that “post release
control is a part of this prison sentence for the maximum period allowed for the above
felony (s) under R.C. 2967.28.” This does not meet the requirement for a full
advisement. This court has stated that a mere reference to a statute is insufficient notice
of postrelease control. See State v. Stallings, 8th Dist. Cuyahoga No. 97480,
2012-Ohio-2925, ¶ 8, citing State v. Jones, 7th Dist. Mahoning No. 06 MA 17,
2009-Ohio-794, ¶ 12.
{¶18} Under the circumstances of this case, where a defendant failed to
demonstrate a deficiency of postrelease control notification at the sentencing hearing, but
the judgment entry failed to include a full notification, the defendant is not entitled to a
new sentencing hearing regarding the postrelease control, because a nunc pro tunc entry
may be used to correct any omission. See Qualls at ¶ 30.
{¶19} Here, the trial court denied Williamson’s November 2012 “Motion to
Correct Sentence,” because it had issued a judgment in February 2012 stating it will
resentence Williamson on the postrelease control issue “prior to his release from prison if
necessary.” (Emphasis added.) The trial court appears to believe that, because
Williamson is serving 12 consecutive life terms, he is unlikely to ever be subject to
postrelease control, and a correction is unnecessary now.
{¶20} In State v. Lang, 129 Ohio St.3d 512, 556, 2011-Ohio-4215, 954 N.E.2d
596, the defendant was sentenced to death for his conviction of aggravated murder; life
(with no possibility of parole) for the murder of another individual; and a term of ten
years for aggravated robbery. On appeal, the defendant argued, among other issues, that
the trial court failed to properly impose postrelease control as a mandatory part of his
sentence for the aggravated robbery. The Supreme Court of Ohio affirmed the
defendant’s convictions and his sentences of death and life without parole. However, it
remanded the case to the trial court to properly impose postrelease control as a part of his
sentence for aggravated robbery. Although the defendant is unlikely to be ever subject
to postrelease control, the court did not consider the imposition of postrelease control
moot, but rather, remanded the matter for a proper imposition.
{¶21} Therefore, even though Williamson is unlikely subject to postrelease control
due to his 12 consecutive life terms, the trial court does not have the discretion to wait to
remedy the deficiency in its sentencing entry. Lang. The second assignment of error is
sustained to the extent indicated in the foregoing analysis.
{¶22} Finally, regarding the other claims raised by Williamson, they are barred
by res judicata. As the Supreme Court of Ohio held in Fischer, “[a]lthough 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 determination of guilt and the
lawful elements of the ensuing sentence.” Fischer at paragraph three of the syllabus.
Therefore, all other claims raised by Williamson in this postconviction proceeding are
barred by res judicata. The remaining assignments of error are overruled.
{¶23} The trial court’s January 2013 judgment denying appellant’s “Motion to
Correct Sentence” is reversed, and the matter is remanded to the trial court for a
correction of the 2002 judgment entry with a nunc pro tunc entry.
{¶24} Judgment reversed and remanded.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
MARY J. BOYLE, P.J., and
PATRICIA A. BLACKMON, J., CONCUR