State v. Shepherd ( 2021 )

[Cite as State v. Shepherd, 2021-Ohio-507.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109496
v. :
TYSHAWN SHEPHERD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 25, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-08-518815-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, for
appellant.
LISA B. FORBES, J.:
Tyshawn Shepherd (“Shepherd”) appeals the trial court’s denial of his
motions to vacate postrelease control. After reviewing the facts of the case and
pertinent law, we affirm the trial court’s judgment, because Shepherd’s motions are
barred by the doctrine of res judicata.
I. Facts and Procedural History
On January 21, 2009, the trial court journalized1 Shepherd’s guilty
plea to aggravated robbery and kidnapping, both first-degree felonies. This journal
entry states that “defendant advised of post release control for 5 years.” On
January 23, 2009, the trial court journalized Shepherd’s seven-year aggregate
prison sentence. This journal entry states that “post release control is part of this
prison sentence for 5 years for the above felony(s) under R.C. 2967.28.”
Shepherd served his prison sentence and was released in 2015.
Shepherd filed successive pro se motions to vacate postrelease control on
December 18, 2019, and January 8, 2020. The trial court denied both motions on
January 16, 2020, and it is from this denial that Shepherd now appeals.
II. Law and Analysis
This case is controlled by the Ohio Supreme Court’s recent opinion in
State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 42, which
states that “[w]hen the sentencing court has jurisdiction to act, sentencing errors in
the imposition of postrelease control render the sentence voidable, not void, and the
sentence may be set aside if successfully challenged on direct appeal.” Harper
1 We refer to the journalization dates rather than the plea hearing and sentencing
hearing dates because Shepherd did not file the transcripts from his plea and sentencing
hearings, and we have nothing to review other than the journal entries.
reversed the judgment of the appellate court, “to the extent that it remanded the case
to the trial court to correct the entry imposing postrelease control.” Id. at ¶ 44.
The Ohio Supreme Court issued the following admonition in Harper:
“we caution prosecuting attorneys, defense counsel, and pro se defendants
throughout this state that they are now on notice that any claim that the trial court
has failed to properly imposed postrelease control in the sentence must be brought
on appeal from the judgment of conviction or the sentence will be subject to res
judicata.” Id. at ¶ 43.
The Ohio Supreme Court clarified that when a sentence is voidable
under Harper, “the doctrine of res judicata will apply to collateral attacks on it.”
State v. Hudson, Slip Opinion No. 2019-0646, 2020-Ohio-3849, ¶ 17.
Under the doctrine of res judicata, a final judgment of conviction bars
the convicted defendant 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 [in the trial court] which resulted in that judgment of
conviction or on an appeal from that judgment.
State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). This court recently
held that res judicata barred a collateral attack on the imposition of postrelease
control, because the defendant “could have, but did not, raise any issue regarding
the postrelease control and his sentencing entry in his direct appeal.” State v. Scott,
8th Dist. Cuyahoga No. 109436, 2020-Ohio-3676, ¶ 13.
In the instant case, it is undisputed that the trial court had jurisdiction
to sentence Shepherd in 2009, and that Shepherd did not file a direct appeal of his
convictions and sentence at that time. Therefore, res judicata now bars Shepherd’s
challenge to the postrelease control imposed as part of his sentence, and Shepherd’s
sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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.
LISA B. FORBES, JUDGE
MICHELLE J. SHEEHAN, P.J., and
MARY EILEEN KILBANE, J., CONCUR