State v. Rarden , 2018 Ohio 4487 ( 2018 )

[Cite as State v. Rarden, 2018-Ohio-4487.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2018-03-044
: OPINION
- vs - 11/5/2018
:
LONNIE RARDEN, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2006-07-1271
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Lonnie Rarden, #A547085, London Correctional Institution, P.O. Box 69, London, Ohio
43140, defendant-appellant, pro se
RINGLAND, J.
{¶ 1} Defendant-appellant, Lonnie Rarden, appeals a decision of the Butler County
Court of Common Pleas denying his "Motion to Re-Sentence and or Correct an Illegal
Sentence(s)." For the reasons detailed below, we affirm.
{¶ 2} In 2006, Rarden was indicted and charged with several felonies and
misdemeanors, including one count of felony escape, two counts of felony complicity to
Butler CA2018-03-044
perjury, and one count of felony complicity to tampering with evidence. Following a jury trial,
Rarden was found guilty of all charges and sentenced to 26 and one-half years in prison.
This court affirmed Rarden's conviction and sentence on direct appeal and the Ohio
Supreme Court declined review. State v. Rarden, 12th Dist. Butler No. CA2007-03-077 (Apr.
21, 2008) (Accelerated Calendar Judgment Entry); State v. Rarden, 125 Ohio St. 3d 1416,
2010-Ohio-1893.
{¶ 3} In 2008, shortly before this court issued its decision on direct appeal, Rarden
moved the trial court to vacate his sentence, arguing the trial court had improperly excluded
evidence from trial. Construing the motion as a petition for postconviction relief, the trial
court denied Rarden's petition as untimely. Rarden did not appeal from the trial court's
decision.
{¶ 4} In 2010, Rarden moved the trial court to vacate his sentence, arguing he had
not been properly informed of his postrelease control obligations. Finding merit to Rarden's
claim, the trial court held a resentencing hearing limited to the proper advisement and
imposition of postrelease control. This court affirmed the trial court's decision and the Ohio
Supreme Court declined review. State v. Rarden, 12th Dist. Butler Nos. CA2010-04-095,
CA2010-05-106, and CA2010-05-126 (Feb. 7, 2011) (Accelerated Calendar Judgment Entry);
State v. Rarden, 130 Ohio St. 3d 1497, 2011-Ohio-6556.
{¶ 5} In 2013, Rarden once again moved the trial court to vacate his sentence. As it
had done previously, the trial court construed Rarden's motion as a petition for postconviction
relief and denied the petition as untimely. The trial court also found that Rarden's petition
was barred by the doctrine of res judicata. This court affirmed the trial court's decision and
the Ohio Supreme Court declined review. State v. Rarden, 12th Dist. Butler No. CA2013-07-
125, 2014-Ohio-564; State v. Rarden, 139 Ohio St. 3d 1407, 2014-Ohio-2245.
{¶ 6} In 2015, Rarden filed a motion requesting the trial court to void his five-year
-2-
Butler CA2018-03-044
prison sentence for his escape conviction and to void his convictions for complicity to perjury
and tampering with evidence. On November 18, 2015, the trial court denied appellant's
motion, finding that appellant's claims were barred by the doctrine of res judicata. This court
affirmed the trial court's decision and the Ohio Supreme Court declined review. State v.
Rarden, 12th Dist. Butler No. CA2015-12-214, 2016-Ohio-3108; State v. Rarden, 146 Ohio
St. 3d 1515, 2016-Ohio-7199.
{¶ 7} On December 11, 2017, Rarden filed a motion requesting the trial court
resentence him or correct an illegal sentence. Rarden argued that the trial court failed to
conduct a de novo sentencing hearing in 2010 and failed to properly inform him of his
postrelease control. In addition, Rarden argued that his sentence was contrary to law, the
trial court engaged in improper judicial factfinding, and the trial court improperly "packaged
up" his prison sentences. The trial court denied Rarden's motion. Rarden now appeals,
raising five assignments of error for review.
{¶ 8} Assignment of Error No. 1:
{¶ 9} APPELLANT WAS NOT PROPERLY NOTIFIED OF POST RELEASE
CONTROL.
{¶ 10} In his first assignment of error, Rarden argues that the trial court improperly
notified him of postrelease control following his 2010 resentencing hearing. In State v.
Grimes, 151 Ohio St. 3d 19, 2017-Ohio-2927, ¶1, the Ohio Supreme Court held:
[T]o validly impose post-release control when the court orally
provides all the required advisements at the sentencing hearing,
the sentencing entry must contain the following information: (1)
whether post-release control is discretionary or mandatory, (2)
the duration of the post-release-control period, and (3) a
statement to the effect that the Adult Parole Authority ("APA") will
administer the post-release control pursuant to R.C. 2967.28 and
that any violation by the offender of the conditions of post-
release control will subject the offender to the consequences set
forth in that statute.
-3-
Butler CA2018-03-044
{¶ 11} In the present case, the trial court orally advised Rarden of postrelease control
during the 2010 resentencing hearing by stating:
I imposed five years of post-release control [in prior judgment
entry]. I believe it should have been three years of post-release
control. What that means, [Rarden], is that the Court is going to
impose three years of post-release control.
{¶ 12} Rarden argues that the trial court's oral notification of postrelease control
violated the Ohio Supreme Court's decision in Grimes because it implied that he is subject to
mandatory postrelease control. As Rarden was subject to optional, as opposed to
mandatory, postrelease control for three years under R.C. 2967.28(C), he argues that this
matter must be remanded for resentencing. The state concedes error and asks this court to
remand the issue of postrelease control for a limited resentencing hearing.
{¶ 13} However, this court does not need to accept an improper concession. In this
case, the trial court notified Rarden of postrelease control and the judgment entry specifies
that "post release control is optional in this case up to a maximum of three (3) years."
(Emphasis added). The Ohio Supreme Court in Grimes specifically excluded this particular
scenario from its holding. Id. at ¶ 20 ("We reach no conclusion as to the requirements for
sentencing entries in cases in which notice at the sentencing hearing was deficient.") The
court's decision in Grimes focused its analysis on what a minimally compliant entry must
provide the Adult Parole Authority to execute the postrelease-control portion of the sentence.
Id. at ¶ 13. Here, the judgment entry provides the appropriate notice of postrelease control
and complies with the holding in Grimes. Rarden's sentence is not void.
{¶ 14} Moreover, Rarden is unable to show any prejudice because of any purported
overstatement of postrelease control. As a result, any error would be harmless. State v.
Earley, 8th Dist. Cuyahoga No. 100482, 2014-Ohio-2643, ¶ 25. State v. Spears, 9th Dist.
Medina No. 07CA0036-M, 2008-Ohio-4045, ¶ 17. Rarden's first assignment of error is
-4-
Butler CA2018-03-044
overruled.
{¶ 15} Assignment of Error No. 2:
{¶ 16} THE TRIAL COURT WAS PROHIBITED FROM PACKAGING UP
DEFENDANT'S POST RELEASE CONTROL.
{¶ 17} Assignment of Error No. 3:
{¶ 18} THE TRIAL COURT ERRED WHEN IT SENTENCED THE APPELLANT
UNDER AN UNAUTHORIZED STATUTE.
{¶ 19} Assignment of Error No. 4:
{¶ 20} THE TRIAL COURT ERRED WHEN IT SENTENCED THE APPELLANT
UNDER AN UNAUTHORIZED STATUTE.
{¶ 21} Assignment of Error No. 5:
{¶ 22} THE TRIAL COURT ERRED WHEN IT SENTENCED THE APPELLANT
UNDER THE SENTENCING PACKAGING DOCTRINE.
{¶ 23} For ease of discussion, we will address Rarden's second through fifth
assignments of error together. In his second assignment of error, Rarden argues the trial
court erred and engaged in improper sentence packaging when it informed him of
postrelease control. In his third and fourth assignments of error, Rarden argues that his
sentence is void because the trial court made impermissible findings of fact under R.C.
2929.14(C) and (E) before imposing maximum and consecutive sentences. In his fifth
assignment of error, Rarden alleges the trial court engaged in impermissible sentence
packaging.
{¶ 24} Following review, we find Rarden's arguments are without merit. 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
-5-
Butler CA2018-03-044
been raised by the defendant at the trial, which resulted in that judgment of conviction, or on
an appeal from that judgment. State v. Singletary, 12th Dist. Butler No. CA2017-06-085,
2018-Ohio-1115, ¶ 14; State v. Elder, 12th Dist. Butler No. CA2013-01-008, 2013-Ohio-3574,
¶ 7; State v. Snead, 12th Dist. Clermont No. CA2014-01-014, 2014-Ohio-2895, ¶ 18.
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 determination
of guilt and the lawful elements of the ensuing sentence." State v. Lloyd, 12th Dist. Warren
No. CA2017-07-104, 2018-Ohio-803, ¶ 33-34, citing State v. Fischer, 128 Ohio St. 3d 92,
2010-Ohio-6238, ¶ 40.
{¶ 25} In the present case, Rarden's sentence is not void, nor contrary to law. The
trial court did not err when it informed him about postrelease control, nor did it make any
impermissible findings of fact. Furthermore, the trial court did not engage in improper
sentence packaging. The imposition of consecutive and concurrent sentencing is not the
same as engaging in sentence packaging. See State v. Saxon, 109 Ohio St. 3d 176, 2006-
Ohio-1245, ¶ 9. Res judicata applies to the lawful elements of his ensuing sentence. As a
result, we find Rarden's second through fifth assignments of error to be without merit and
they are hereby overruled.
{¶ 26} Judgment affirmed.
S. POWELL, P.J., and HENDRICKSON, J., concur.
-6-