State v. Robinson , 2024 Ohio 4977 ( 2024 )

[Cite as State v. Robinson, 2024-Ohio-4977.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 23AP-407
(C.P.C. No. 12CR-1868)
v. :
(ACCELERATED CALENDAR)
William L. Robinson, Jr., :
Defendant-Appellant. :
D E C I S I O N
Rendered on October 15, 2024
On brief: [Mark Wodarcyk, First Assistant Prosecuting
Attorney], Michael A. Walsh, and Jocelyn Stefancin, for
appellee.
On brief: William L. Robinson, Jr., pro se.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, J.
{¶ 1} Defendant-appellant, William L. Robinson, Jr., appeals from a judgment of
the Franklin County Court of Common Pleas, denying his motion to correct void sentence,
filed on June 2, 2023.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On May 10, 2013, the jury returned a verdict finding appellant guilty of
aggravated burglary, in violation of R.C. 2911.11, a felony of the first degree, as charged in
Count One of the indictment, and guilty of sexual battery, in violation of R.C. 2907.03, a
felony in the third degree, as charged in Count Two of the indictment. The trial court
ordered a pre-sentence investigation and continued the case for sentencing to June 5, 2013.
No. 23AP-407 2
{¶ 3} At sentencing, the trial court imposed 9 years as to Count One and 48 months
as to Count Two, to be served consecutively to each other at the Ohio Department of
Rehabilitation and Correction. In addition, appellant was provided notice that he was
classified, pursuant to S.B. 10, as a Tier III Sex Offender with registration duties for a
lifetime that was filed in the trial court record on June 6, 2013; that he “will” have a period
of post-release control for 5 years following his release from prison that was filed in the trial
court record on June 5, 2013; and he was given notice of the right to appeal that was filed
in the trial court record on June 5, 2013. (June 3, 2013 Notice.) All 3 notices were signed
by appellant. It is with the use of the word “will” in the notice of post-release control and
the use of the word “mandatory” in the judgment entry filed in the trial court record on
June 7, 2013, that appellant takes exception. (June 7, 2013 Jgmt. Entry at 2.)
{¶ 4} The facts and procedural history of this case are outlined in our decision
regarding appellant’s direct appeal in State v. Robinson, 10th Dist. No. 13AP-563, 2014-
Ohio-520. After the judgment was affirmed, appellant filed a notice of appeal in the
Supreme Court of Ohio, jurisdiction declined, 139 Ohio St.3d 1407, 2014-Ohio-2245.
{¶ 5} Procedurally, appellant’s dissatisfaction has led to him filing the following
motions: a motion for delayed reopening on July 13, 2015, and was denied by appellate
court in State v. Robinson, 10th Dist. No. 13AP-563, 2015-Ohio-3486; notice of appeal filed
in the Supreme Court of Ohio, case No. 2015-1620, jurisdiction declined, State v. Robinson,
2015 Ohio App. LEXIS 3192 (Dec. 2, 2015); August 22, 2016 motion to vacate in the trial
court, and denied on December 8, 2016; notice of appeal filed on December 28, 2016,
judgment affirmed on May 11, 2017 in State v. Robinson, 10th Dist. No. 16AP-887, 2017-
Ohio-2773; on June 16, 2017, notice of appeal filed in the Supreme Court, case No. 2017-
0809, appeal not accepted for review in State v. Robinson, 2017 Ohio LEXIS 1914 (Sept. 27,
2017); August 18, 2017, motion for new trial in the trial court, and denied on September 15,
2017, notice of appeal to this court filed October 4, 2017 in case No. 17AP-707, judgment
affirmed June 30, 2018, application for reconsideration denied on August 30, 2018;
November 24 and December 8, 2020 appellant filed applications for delayed
reconsideration and both were denied on February 16, 2021; February 24, 2021, motions
to vacate and for expert assistance filed in the trial court and both were denied on May 14,
2017 and May 17, 2021; on July 19, 2022 filed in the trial court, motion for de novo
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resentencing hearing, denied on July 25, 2022; on February 15, 2023 in the trial court,
motion to correct void sentence, denied on April 19, 2023; and motion to correct void
sentence filed on June 2, 2023 in the trial court, denied on June 21, 2023, which is the
subject of the instant timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 6} Appellant assigns the following as trial court errors:
1. The trial court erred and abused their discretion when they
denied appellant, Mr. Robinson Jr.’s motion to correct void
sentence when it was made clear and apparent from the
record that the trial court did not properly impose post release
control orally at defendant, Mr. Robinson Jr.’s May 2013
sentencing hearing. The trial court was under an obligated
duty to vacate the post release control portion of
Mr. Robinson Jr.’s sentence and remanded the matter back to
the trial court for resentencing so that post release control can
be properly imposed orally, when it was made clear and
apparent from Mr. Robinson Jr.’s May 2013 sentencing
hearing transcripts that the trial court did not orally order that
the defendant, Mr. Robinson Jr.’s, (5) five years of post release
control was “mandatory”.
2. The trial court erred and abused their discretion when it
used the principles of res judicata and the statutes and
limitations of “R.C. 2953.21” to deny the defendant,
Mr. Robinson Jr.’s motion to correct void post release control
sentence[.]
3. The trial court abused their discretion when they denied
defendant, Mr. Robinson Jr.’s motion to correct judgment
entry when it was made clear and apparent that the trial
court’s June 2013 judgment entry was not in compliance with
“Crim.R. 32(C)”, & “R.C. 2505.02”[.]
(Sic passim.)
III. STANDARD OF REVIEW
{¶ 7} We typically review the trial court’s denial of a motion to correct a void
judgment for an abuse of discretion. “We have defined an abuse of discretion as conduct
that is unreasonable, arbitrary or unconscionable.” State v. Beasley, 152 Ohio St.3d 470,
2018-Ohio-16, ¶ 12, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). A
decision is “arbitrary” if it is made “ ‘without consideration of or regard for facts [or]
No. 23AP-407 4
circumstances.’ ” Id., quoting Black’s Law Dictionary 125 (10th Ed.2014). A decision may
also be “ ‘arbitrary’ ” if it is “ ‘ “without [an] adequate determining principle; * * * not
governed by any fixed rules or standard.” ’ ” Id., quoting Dayton ex rel. Scandrick v.
McGee, 67 Ohio St.2d 356, 359 (1981), quoting Black’s Law Dictionary 96 (5th Ed.1979).
See State v. Hill, 171 Ohio St.3d 524, 2022-Ohio-4544, ¶ 9.
{¶ 8} The applicability of res judicata is a question of law that we review de novo.
State v. Braden, 10th Dist. No. 17AP-321, 2018-Ohio-1807, ¶ 10. “[I]n criminal cases res
judicata generally bars a defendant from litigating claims in a proceeding subsequent to the
direct appeal ‘if he or she raised or could have raised the issue at the trial that resulted in
that judgment of conviction or on an appeal from that judgment.’ ” (Emphasis omitted.)
State v. Anderson, 10th Dist. No. 15AP-897, 2016-Ohio-1089, ¶ 7, quoting State v. Jackson,
141 Ohio St.3d 171, 2014-Ohio-3707, ¶ 92. See State v. Castile, 10th Dist. No. 23AP-155,
2023-Ohio-2860, ¶ 10.
IV. LEGAL ANALYSIS
{¶ 9} As appellant’s assignments of error one and three are premised in the alleged
failure of the trial court to orally notify him of the mandatory nature of the post-release
control sanction and his opposition to the mandatory language imposing post-release
control in the judgment entry filed on June 7, 2013, we will answer them together.
{¶ 10} First, we look at the statutory language that imposes post-release control,
R.C. 2967.28 reads:
Each sentence to a prison term, other than a term of life
imprisonment, for a felony of the first degree, for a felony of
the second degree, for a felony sex offense, or for a felony of
the third degree that is an offense of violence and is not a
felony sex offense shall include a requirement that the
offender be subject to a period of post-release control imposed
by the parole board after the offender’s release from
imprisonment. This division applies with respect to all prison
terms of a type described in this division, including a term of
any such type that is a risk reduction sentence. If a court
imposes a sentence including a prison term of a type
described in this division on or after July 11, 2006, the failure
of a sentencing court to notify the offender pursuant to
division (B)(2)(d) of section 2929.19 of the Revised Code of
this requirement or to include in the judgment of conviction
entered on the journal a statement that the offender’s
No. 23AP-407 5
sentence includes this requirement does not negate, limit, or
otherwise affect the mandatory period of supervision that is
required for the offender under this division. This division
applies with respect to all prison terms of a type described in
this division, including a non-life felony indefinite prison
term. Section 2929.191 of the Revised Code applies if, prior to
July 11, 2006, a court imposed a sentence including a prison
term of a type described in this division and failed to notify
the offender pursuant to division(B)(2)(d) of section 2929.19
of the Revised Code regarding post-release control or to
include in the judgment of conviction entered on the journal
or in the sentence pursuant to division (D)(1) of section
2929.14 of the Revised Code a statement regarding post-
release control. Unless reduced by the parole board pursuant
to division (D) of this section when authorized under that
division, a period of post-release control required by this
division for an offender shall be of one of the following
periods:
(1) For a felony sex offense, five years[.]
(Emphasis added.) R.C. 2967.28(B)(1).
{¶ 11} Appellant takes exception with the trial court’s pronouncement:
“Mr. Robinson, when you get out of prison, you will be placed on post release control for
five years with conditions.” (Tr. Vol. II at 445.) The journal entry dated June 7, 2013 states
“[a]fter the imposition of sentence, the Court notified the Defendant, orally and in writing,
of the applicable period of five (5) years mandatory post-release control pursuant to
R.C. 2929.19(B)(3)(c), (d), and (e).” (Emphasis sic.) (June 7, 2013 Jgmt. Entry at 2.)
{¶ 12} It is axiomatic that “a court speaks through its journal entries.” State v.
Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, ¶ 12. Oral pronouncements by a trial court
judge do not constitute final appealable orders because they are subject to revision before
journalization. State ex. rel. Marshall v. Glavas, 98 Ohio St.3d 297, 2003-Ohio-857, ¶ 5.
“ ‘ “A court of record speaks only through its journal [entry] and not by oral pronouncement
or mere written minute or memorandum.” ’ ” Id., quoting In re Adoption of Gibson, 23
Ohio St.3d 170, 173 (1986), fn. 3, quoting Schenley v. Kauth, 160 Ohio St. 109 (1953),
paragraph one of the syllabus. Appellant cannot make the argument that the post-release
control entry did not journalize the mandatory requirement that post-release control be
imposed upon him as he was convicted of a felony of the third degree for sexual battery and
No. 23AP-407 6
declared to be a Tier III Sex Offender. The judgment entry clearly imposed the requirement
of mandatory post-release control for five years pursuant to R.C. 2967.28(B)(1).
{¶ 13} Appellant’s first and third assignments of error hinge on the failure of the trial
court to orally order that “the defendant, Mr. Robinson Jr’s post release control was
‘mandatory’ for (5) five years.” (Appellant’s Brief at 5.) This case has a tortured procedural
history of motions and appeals in attempt to overturn an otherwise lawful sentence and
sanction made by the trial court. As already stated, the court speaks through its journal
entries, oral pronouncements do not constitute final appealable orders, and journal entries
are subject to revision before being journalized.
{¶ 14} Appellant hangs his hat on the principle of void judgments imposed by the
trial court in imposing post-release control sanctions, but the Supreme Court of Ohio has
clarified this issue in State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913. As this court
explained in State v. Simpson, 10th Dist. No. 23AP-139, 2023-Ohio-2859:
[A] sentence is void when a sentencing court lacks jurisdiction
over the subject matter of the case or personal jurisdiction over
the accused. But, when the trial court has jurisdiction to act,
sentencing errors render the sentence voidable, not void, and
the sentence may be set aside if successfully challenged on
direct appeal.
(Internal quotations omitted.) Id. at ¶ 11., quoting Harper at ¶ 42. We cannot conclude that
the trial court abused its discretion in denying this last of a multitude of motions. There is
nothing that appellant can point to as unreasonable, arbitrary, or unconscionable about the
ruling denying the motion to correct void sentence filed on June 2, 2023. Therefore,
assignments of error one and three are overruled.
{¶ 15} Next, we turn to assignment of error two. According to 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.” (Emphasis omitted.) State v. Perry, 10 Ohio St.2d 175,
(1967), paragraph nine of the syllabus. As was explained in State v. Saxon, 109 Ohio St.3d
176, 2006-Ohio-1245, “the doctrine serves to preclude a defendant who has had his day in
court from seeking a second on that same issue,” and it “promotes the principles of finality
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and judicial economy by preventing endless relitigation of an issue on which a defendant
has already received a full and fair opportunity to be heard.” Id. at ¶ 18. See also State v.
Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, ¶ 35. It also bars an attempt to relitigate the
question whether an offender’s sentence complies with mandatory statutory provisions.
State ex rel. McKinney v. Schmenk, 152 Ohio St.3d 70, 2017-Ohio-9183, ¶ 10-12 (res
judicata barred renewed claim that a sentence imposed for an allied offense of similar
import is void).
{¶ 16} Appellant’s argument that the trial court failed to impose the correct post-
release control notice is nullified by the voidable doctrine now followed by Ohio courts.
Appellant raised two assignments of error in his direct appeal in State v. Robinson, 10th
Dist. No. 13AP-563, 2014-Ohio-520, ¶ 1. In Robinson, on direct appeal the assignments of
error were: (1) “the jury verdicts in this case were not supported by the manifest weight of
the evidence” and (2) “the trial court erred in imposing consecutive sentences without
making the necessary finding mandated by Ohio Revised Code § 2929.14(c)(4).” (Emphasis
omitted.) Id. at ¶ 1.
{¶ 17} “Under that doctrine [of res judicata] ‘a defendant cannot raise an issue in a
postconviction petition if he or she raised or could have raised the issue at the trial that
resulted in that judgment of conviction or on an appeal from that judgment.’ ” (Emphasis
sic.) State v. Hough, 10th Dist. No. 21AP-39, 2021-Ohio-2852, ¶ 10, quoting State v.
Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, ¶ 92, citing Szefcyk at 96; State v. Barber,
10th Dist. No. 16AP-172, 2017-Ohio-9257, ¶ 19 (“Stated differently, in criminal cases res
judicata may preclude issues, arguments, or positions that could have been (even if they
were not actually) litigated.”). The Supreme Court of Ohio also clarifies how the doctrine
of res judicata applies to errors imposing post-release control in Harper saying:
Any error in imposing the postrelease-control sanction in his
sentence was an error in the exercise of the trial court’s
jurisdiction that could have been objected to at trial and that
may have been reversible error on direct appeal. However, such
an error did not render any part of Harper’s sentence void. And
because Harper could have raised his argument that the trial
court failed to properly impose postrelease control on appeal,
it is now barred by the doctrine of res judicata.
No. 23AP-407 8
Harper at ¶ 41, citing State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277, ¶ 7; State v.
Szefcyk, 77 Ohio St.3d 93 (1996). Because appellant failed to raise any error in the trial
court’s alleged failures in giving notice of a five-year mandatory post-release sanction on
direct appeal, res judicata applies. Therefore, assignment of error two is overruled.
V. CONCLUSION
{¶ 18} Based upon the foregoing, the court overrules assignments of error one, two,
and three. The judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BEATTY BLUNT and LELAND, JJ., concur.
_____________