State v. Jordan

[Cite as State v. Jordan, 2012-Ohio-5350.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. William B. Hoffman, J.
-vs-
Case No. 12CA17
SCOTT ANTHONY JORDAN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Common
Pleas Court, Case No. 2007-CR-0909
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 14, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. ANDREW M. KVOCHICK
PROSECUTING ATTORNEY Weldon, Huston, & Keyser, LLP
RICHLAND COUNTY, OHIO 76 N. Mulberry St.
Mansfield, Ohio 44902
By: JOHN C. NIEFT
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 12CA17 2
Hoffman, J.
{¶1} Defendant-appellant Scott Anthony Jordan appeals his conviction and
sentence entered by the Richland County Court of Common Pleas. Plaintiff-appellee is
the State of Ohio.
STATEMENT OF THE CASE1
{¶2} On November 11, 2007, the Richland County Grand Jury indicted
Appellant on two counts of kidnapping, one count of domestic violence, one count of
felonious assault, and one count of attempted murder.
{¶3} Appellant originally pleaded not guilty to the charges, but on May 2, 2008,
he entered a plea of guilty to the charge of felonious assault, a second degree felony in
violation of R.C. 2903.11(A)(2), in exchange for a recommended eight-year sentence
and dismissal of the remaining counts in the indictment. The Admission of
Guilt/Judgment Entry states, “Post-release control: If I am sentenced to prison, I have
five years post-release control.”
{¶4} After taking Appellant's plea, the trial court immediately moved to
sentencing. The May 2, 2008 sentencing entry shows the trial court sentenced
Appellant to eight years in prison and imposed a five-year term of post-release control
for Appellant's conviction on a second degree felony. R.C. 2967.28(B)(2) mandates that
post-release control for a second degree felony is mandatory for a period of three years.
{¶5} Appellant filed a Notice of Appeal of his sentence on August 11, 2008.
This Court dismissed Appellant's appeal for being untimely.
1
A recitation of the facts is unnecessary for our disposition of the within appeal.
Richland County, Case No. 12CA17 3
{¶6} Appellant filed a second Notice of Appeal of his sentence on October 23,
2008. This Court denied Appellant's motion for leave to file a delayed appeal.
{¶7} Appellant then filed a petition to vacate or set aside his sentence with the
trial court on November 21, 2008. Appellant argued the trial court erred in imposing the
maximum sentence. The trial court denied Appellant's petition on July 7, 2009.
{¶8} On March 12, 2010, Appellant filed a motion to withdraw his guilty plea
pursuant to Crim.R. 32.1. Appellant argued he was entitled to withdraw his guilty plea
because the trial court erred when it imposed five years of post-release control instead
of three years, therefore rendering his sentence void. Appellant simultaneously filed a
motion for new sentencing hearing pursuant to the Ohio Supreme Court mandate in
State v. Singleton, 124 Ohio St.3d 173, 2009–Ohio–6434, 920 N.E.2d 958. The State
responded to Appellant's motion to withdraw his guilty plea, and also requested the trial
court conduct a resentencing hearing to correct Appellant's post-release control.
{¶9} The record shows the trial court did not hold a resentencing hearing
before denying Appellant's motion to withdraw his guilty plea on June 18, 2010.
Appellant filed his Notice of Appeal of that decision on July 13, 2010.
{¶10} On appeal to this Court in State v. Jordan, Fifth Dist. No. 2010CA0091,
2011 Ohio 1203, this Court held Appellant was not entitled to withdraw his guilty plea,
despite being sentenced to five years of post-release control as opposed to a
mandatory term of three years for the second degree felony. This Court found the trial
court substantially complied with the requirement Appellant be informed of the duration
of post-release control. Furthermore, Appellant failed to show any prejudice resulting
Richland County, Case No. 12CA17 4
from the imposition of five years of post-release control as opposed to a mandatory term
of three years of post-release control.
{¶11} On October 7, 2011, Appellant filed a motion for resentencing in the trial
court. The trial court scheduled a resentencing hearing for February 24, 2012. On
February 24, 2012, the trial court conducted the resentencing hearing correcting the
term imposed of post-release control.
{¶12} Appellant now appeals, assigning as error:
{¶13} “I. THE TRIAL COURT ERRED BY ALLOWING AN UNREASONABLE
DELAY IN PROPERLY IMPOSING POST-RELEASE CONTROL.
{¶14} “II. THE TRIAL COURT ERRED BY DENYING THE APPELLANT’S
MOTION TO WITHDRAW HIS PLEA.
{¶15} “III. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL IN THE TRIAL COURT.”
I.
{¶16} In the first assignment of error Appellant maintains the trial court erred in
allowing an unreasonable delay in the improper imposition of post-release control.
{¶17} The Ohio Supreme Court in State v. Fischer, 128 Ohio St.3d 92 (2010),
held a sentence that does not include the statutorily mandated term of post-release
control is void, 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. Fischer held
when a judge fails to impose statutorily mandated post-release control as part of a
defendant's sentence, that part of the sentence is void and must be set aside.
Richland County, Case No. 12CA17 5
{¶18} Here, the trial court elected to resentence Appellant following the
disposition of Appellant's prior appeal herein. The state conceded Appellant was
improperly sentenced to five years mandatory post-release control when a three year
term was mandated by law. The trial court conducted a resentencing hearing to
properly impose post-release control. Appellant is not scheduled for release until
November 11, 2015; therefore, his term of post-release control has not commenced.
Accordingly, Appellant we find has not demonstrated prejudice as result of the delay in
the trial court's resentencing him to properly impose post-release control.
{¶19} The first assignment of error is overruled.
II. and III.
{¶20} In the second and third assignments of error, Appellant argues the trial
court erred in denying his motion to withdraw his guilty plea, and he was denied the
effective assistance of trial counsel.
{¶21} As set forth in the statement of the case supra, Appellant filed a direct
appeal of the trial court's denial of his motion to withdraw his guilty plea in State v.
Jordan, Fifth Dist. No. 2010CA0091, 2011 Ohio 1203. In Jordan, this Court held
Appellant was not entitled to withdraw his guilty plea, despite being sentenced to five
years of post-release control as opposed to a mandatory term of three years for the
second degree felony. This Court further found the trial court substantially complied with
the requirement Appellant be informed of the duration of post-release control.
Furthermore, Appellant failed to show any prejudice resulting from the imposition of five
years of post-release control as opposed to a mandatory term of three years of post-
release control.
Richland County, Case No. 12CA17 6
{¶22} 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 been raised by the defendant at the trial,
which resulted in that judgment of conviction, or on an appeal from that judgment. State
v. Szefcyk (1996), 77 Ohio St.3d 93, 95
{¶23} Appellant's arguments raised in the second and third assigned errors are
barred by the doctrine of res judicata as they were or could have been raised on direct
appeal from his original sentence or were raised in Appellant's prior appeal.
{¶24} Appellant's second and third assignments of error are overruled.
{¶25} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Hoffman, J.
Delaney, P.J. and
Gwin, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
Richland County, Case No. 12CA17 7
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
SCOTT ANTHONY JORDAN :
:
Defendant-Appellant : Case No. 12CA17
For the reasons stated in our accompanying Opinion, the judgment of the
Richland County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN