State v. Shepherd ( 2014 )

[Cite as State v. Shepherd, 2014-Ohio-686.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26748
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ORLANDO D. SHEPHERD COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 94 02 0478
DECISION AND JOURNAL ENTRY
Dated: February 26, 2014
MOORE, Presiding Judge.
{¶1} Defendant-Appellant, Orlando D. Shepherd, appeals from the December 13, 2012
judgment entry of the Summit County Court of Common Pleas. We affirm.
I.
{¶2} In 1994, Mr. Shepherd was indicted for (1) murder with a firearm specification,
(2) attempted murder with a firearm specification, (3) carrying a concealed weapon with a
physical harm specification, and (4) illegal possession of a firearm in liquor permit premises with
firearm and physical harm specifications. After initially pleading not guilty, Mr. Shepherd
pleaded guilty to amended charges of involuntary manslaughter with a firearm specification,
three counts of felonious assault, and carrying a concealed weapon with a physical harm
specification.
{¶3} The trial court accepted Mr. Shepherd’s guilty plea, found him guilty and
sentenced him to three years of mandatory imprisonment for possession of a firearm, to be
2
served consecutively with an indeterminate period of not less than ten and not more than twenty-
five years for involuntary manslaughter, to be served consecutively with an indeterminate period
of not less than two and not more than ten years for carrying a concealed weapon with a physical
harm specification, to be served concurrently with an indeterminate period of not less than three
and not more than fifteen years for each count of felonious assault.
{¶4} While incarcerated at the Lake Erie Correctional Institution, Mr. Shepherd
allegedly assaulted a corrections officer, and was indicted by the Ashtabula Grand Jury for
felonious assault and assault. In 2003, Mr. Shepherd pleaded no contest to felonious assault, and
was sentenced to a mandatory six-year term of imprisonment to be served consecutively with his
Summit County sentence.
{¶5} In State v. Shepherd, 11th Dist. Ashtabula No. 2010-A-0052, 2011-Ohio-2451, ¶
31, the Eleventh District Court of Appeals held that the trial court failed to incorporate the
required term of postrelease control into Mr. Shepherd’s sentence. The Eleventh District
remanded the matter to the trial court to determine whether Mr. Shepherd had already completed
his mandatory six-year prison sentence, and, if not, to properly impose postrelease control. Id.Upon remand, the trial court determined that Mr. Shepherd had already served his mandatory
six-year prison sentence for felonious assault, and, as such, it could no longer impose postrelease
control.
{¶6} Mr. Shepherd then filed a motion for immediate discharge from custody in the
Summit County Court of Common Pleas. In his motion, Mr. Shepherd argued that: (1) the 1994
judgment entry contained no verdict or finding of guilt, and, therefore, was not a final order, and
(2) he fully completed his prison sentence issued in 1994 due to the accrual of “goodtime” credit
and never being afforded a parole eligibility screening hearing. In response, the State asserted
3
that the 1994 sentencing entry complied with State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-
5204, and is a final order. Mr. Shepherd subsequently filed a memorandum wherein he agreed
with the State’s position that the 1994 judgment entry is a final order, but still contended that he
completed his prison sentence imposed by the trial court in 1994.
{¶7} The trial court denied Mr. Shepherd’s motion stating that the sentencing entry is
complete, and that it is without jurisdiction over parole or postrelease control.
{¶8} Mr. Shepherd appealed and raises two assignments of error for our consideration.
II.
ASSIGNMENT OF ERROR I
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION THEREBY
IMPLICATING DUE PROCESS WHEN IT DENIED [MR. SHEPHERD’S]
PROPERLY PLED AND SUBSTANTIVELY SUPPORTED MOTION FOR
IMMEDIATE DISCHARGE FROM CUSTODY (‘WITHOUT A HEARING’)
AND WHERE THE RECORD DID IRREFUTABLY DEMONSTRATE THAT
[MR. SHEPHERD] HAD FULLY SATISFIED THE ORDERED
PUNISHMENT.
{¶9} In his first assignment of error, Mr. Shepherd argues that the trial court erred in
denying his motion for immediate discharge from custody without first holding a hearing.
Specifically, Mr. Shepherd argues that (1) he had a statutory right to parole eligibility screening,
and (2) because the Ashtabula County Court of Common Pleas’ judgment is void, the six years
of time served under that sentence should count toward his original sentence in Summit County.
{¶10} “The adult parole authority [“APA”] may exercise its functions and duties in
relation to the pardon, commutation of sentence, or reprieve of a convict upon direction of the
governor or upon its own initiative.” R.C. 2967.03. Further, “R.C. 2967.03 vests discretion in
the APA to ‘grant a parole to any prisoner, if in its judgment there is reasonable ground to
believe that * * * such action would further the interests of justice and be consistent with the
4
welfare and security of society.’” Hattie v. Anderson, 68 Ohio St.3d 232, 233 (1994), quoting
former R.C. 2967.03. “However, R.C. 2967.03 creates no expectancy of parole or a
constitutional liberty interest sufficient to establish a right of procedural due process.” Hattie at
233, citing State ex rel. Adkins v. Capots, 46 Ohio St.3d 187, 188 (1989).
{¶11} First, Mr. Shepherd offers no legal authority in support of his contention that the
trial court denied him due process by failing to hold a hearing prior to denying his motion. See
App.R. 16(A)(7). Second, Mr. Shepherd mainly argues about the merits of Ashtabula County’s
decision, which is from another district and outside of this Court’s jurisdiction to review. Third,
because Mr. Shepherd is currently incarcerated and seeking parole eligibility, his cause of action
would be more properly directed against the APA. See Ritchie v. Ohio Adult Parole Auth.,
Franklin App. No. 05AP-1019, 2006-Ohio-1210, ¶ 7, where the appellant “sought a declaratory
judgment that [the APA] violated state constitutional laws when it applied its parole guidelines *
* * [and] also sought a declaratory judgment explaining how pre-S.B. 2 statutes on parole
eligibility affect meaningful parole consideration.”
{¶12} Accordingly, Mr. Shepherd’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
WHETHER A JUDGMENT WHICH WAS/IS VOID AB INITIO (AND SO
DECLARED) IS STATUTORILY AND CONSTITUTIONALLY CAPABLE OF
SUSPENDING EXECUTION AND OPERATION OF A VALID JUDGMENT.
{¶13} In his second assignment of error, Mr. Shepherd argues that the only valid and
enforceable judgment in effect at all relevant times was the 1994 Summit County judgment. Mr.
Shepherd believes that the Ashtabula County judgment is wholly void because it failed to
properly impose postrelease control, and, as a result, any time served under that judgment should
be instead attributed to his Summit County sentence. For these reasons, Mr. Shepherd contends
5
that he is entitled to a hearing in order to prove that he has completed his sentence and should be
released from custody. We disagree.
{¶14} As stated above, Mr. Shepherd has not provided any legal authority in support of
his argument that he is entitled to a hearing on this type of motion, or that his due process rights
have been violated. See App.R. 16(A)(7). Additionally, Mr. Shepherd incorrectly assumes that a
trial court’s failure to impose postrelease control voids his entire sentence. Recently, in State v.
Holdcroft, 137 Ohio St.3d 526, 2013 WL 6171168, 2013-Ohio-5014, ¶ 7, the Supreme Court of
Ohio addressed the issue of void sanctions, including the failure to properly impose postrelease
control, stating:
Although we have not previously so stated, generally speaking, our recent cases in
this area have dealt with void sanctions, rather than sentences that were void ab
initio. For example, in Fischer, we held that “when a judge fails to impose
statutorily mandated postrelease control as part of a defendant’s sentence, that
part of the sentence is void and must be set aside.” (Emphasis added in part.) We
further recognized that in most cases, the prison sanction is not void and therefore
“only the offending portion of the sentence is subject to review and correction.”
Accordingly, when a judge fails to properly impose statutorily mandated
postrelease control as part of a defendant's sentence, the postrelease control
sanction is void. In such situations, the void sanction “may be reviewed at any
time, on direct appeal or by collateral attack,” but “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[.] ”
(Emphasis sic.) Quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 26-27, 40. As
such, even if the Ashtabula Court of Common Pleas failed to impose post-release control, Mr.
Shepherd’s mandatory prison sentence of six years for felonious assault was not void. Therefore,
because the Ashtabula County sentence was not void, any mandatory time served for the
Ashtabula County conviction would not be applied to Mr. Shepherd’s 1994 Summit County
sentence.
{¶15} Accordingly, Mr. Shepherd’s second assignment of error is overruled.
6
III.
{¶16} In overruling both of Mr. Shepherd’s assignments of error, the Judgment of the
Summit 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 Summit, 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
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.
CARLA MOORE
FOR THE COURT
CARR, J.
WHITMORE, J.
CONCUR.
7
APPEARANCES:
ORLANDO D. SHEPHERD, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.