State v. Anderson

[Cite as State v. Anderson, 2014-Ohio-3699.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 14AP-61
v. : (C.P.C. No. 07CR06-4563)
Kim L. Anderson, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on August 26, 2014
Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
appellee.
Kim L. Anderson, pro se.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Kim L. Anderson, appeals from a judgment of the
Franklin County Court of Common Pleas denying various postconviction motions. For
the following reasons, we affirm that judgment.
I. Factual and Procedural Background
{¶ 2} In 2007, a grand jury indicted appellant with a number of charges arising
from his participation in a mortgage fraud scheme. A jury found appellant guilty of a
number of the charges but could not reach a verdict on others. The trial court sentenced
appellant accordingly and also ordered appellant to pay restitution to the victims. This
court affirmed. State v. Anderson, 10th Dist. No. 08AP-1071, 2009-Ohio-6566.
No. 14AP-61 2
{¶ 3} After appellant filed his notice of appeal from his convictions, but before
this court released our opinion, the trial court issued two corrected sentencing entries to
remedy errors in its original sentencing entry. First, the trial court noted the dismissal of
Count 10 of the indictment which was not contained in the original sentencing entry.
Second, the trial court corrected the level of offense and the resulting sentence for one of
appellant's convictions. Specifically, at appellant's sentencing, the trial court imposed a
concurrent four-year prison term for Count 16, money laundering, which the trial court
stated was a felony of the third degree. In the first corrected sentencing entry, the trial
court clarified that Count 16 was a felony of the fourth degree. In the second corrected
sentencing entry filed January 5, 2009, the trial court reduced appellant's sentence for
Count 16 to 12 months, the maximum for a felony of the fourth degree. The sentence
remained at all times to be served concurrently with all other counts, so appellant's total
prison sentence never changed. Appellant did not timely appeal either of these corrected
sentencing entries.
{¶ 4} Subsequently, appellant began filing multiple motions seeking relief of one
kind or another. The few motions that are relevant to this appeal are set forth here. First,
on April 27, 2011, he filed a motion for resentencing in which he argued that his original
sentencing entry was void due to the errors the trial court later fixed with its corrected
sentencing entries. Second, on September 25, 2013, he filed another motion for
resentencing. This motion alleged that the trial court made errors in determining the
award of restitution made at the sentencing hearing. Third, in multiple motions filed in
2013, appellant claimed that the trial court failed to properly impose post-release control
at his sentencing. On December 11, 2013, appellant also filed a motion for judgment on
the pleadings in which he noted these outstanding motions and sought judgment in his
favor.
{¶ 5} In a decision and entry dated December 19, 2013, the trial court denied
appellant's December 11, 2013 motion for judgment on the pleadings and specifically
addressed the above motions and issues. It denied appellant's April 27, 2011 motion for
resentencing because it noted that it had already resolved all of the alleged errors in his
sentence by way of the corrected sentencing entries. It denied his September 25, 2013
motion for resentencing by concluding that appellant failed to present any newly-
No. 14AP-61 3
discovered evidence to support his claim. Finally, as to appellant's claims regarding post-
release control, the trial court noted that it had concluded in a previous decision that
appellant was properly advised of post-release control at his sentencing hearing.
II. The Appeal
{¶ 6} Appellant appeals the trial court's December 19, 2013 decision and assigns
the following errors:
[I.] The Trial Court unlawfully entered a Nunc Pro Tunc
Judgment Entry on January 5, 2009, after the Appellant's
Notice of Appeal was filed, which modified the Appellant's
sentence outside the Appellant's presence in violation of
Crim.R. 43(A) in attempt to cure a void and non final
appealable order.
[II.] The Trial Court entered a void judgment, when the court
failed to properly address post release control as to "each
offense" convicted or properly notify the Appellant of the
nature and punishment for violation of post release control.
[III.] The Trial Court entered a void judgment, when the
court failed to properly determine restitution.
{¶ 7} For purposes of clarity, we address the assignments of error out of order.
A. Res Judicata
{¶ 8} Initially, we note that res judicata applies to bar some of appellant's claims.
The doctrine of res judicata bars the assertion of claims against a valid, final judgment of
conviction that have been raised or could have been raised on appeal. State v. Ketterer,
126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59, citing State v. Perry, 10 Ohio St.2d 175 (1967),
paragraph nine of the syllabus.
B. First Assignment of Error–The Use of Corrected Sentencing
Entries
{¶ 9} In a previous appeal, this court considered and affirmed the trial court's use
of corrected sentencing entries in this case. State v. Anderson, 10th Dist. No. 11AP-236,
2011-Ohio-6667, ¶ 18-21. To the extent appellant raises a new argument in support of this
claim, that argument is barred by res judicata. State v. Smith, 10th Dist. No. 13AP-129,
2013-Ohio-4674, ¶ 8 (rejecting same argument). We overrule appellant's first assignment
of error.
No. 14AP-61 4
C. Third Assignment of Error–Restitution
{¶ 10} Appellant argues that the trial court erred by not complying with Ohio laws
when making its restitution determination. Issues regarding the determination of
restitution are matters that could have been raised in his direct appeal. Because appellant
did not raise those issues in that appeal, res judicata bars their consideration now. State
v. Musselman, 2d Dist. No. 25295, 2013-Ohio-1584, ¶ 25; State v. Bonanno, 3d Dist. No.
1-02-21, 2002-Ohio-4005, ¶ 13. We overrule appellant's third assignment of error.
D. Second Assignment of Error–Imposition of Post Release
Control
{¶ 11} This assignment of error alleges that appellant's sentence is void because
the trial court failed to properly impose post-release control. The improper imposition of
post-release control may render at least that portion of a sentence void. State v. Simpkins,
117 Ohio St.3d 420, 2008-Ohio-1197, syllabus. Therefore, res judicata would not bar
consideration of this assignment of error. Id. at ¶ 30 (exception to the application of res
judicata for void judgments); State v. Taste, 2d Dist. No. 22955, 2009-Ohio-5867, ¶ 22-
26; State v. Myers, 10th Dist. No. 11AP-909, 2012-Ohio-2733, ¶ 8. Upon a review of
appellant's sentencing, however, we conclude that the trial court properly imposed post-
release control.
{¶ 12} A trial court must notify a defendant of post-release control, if applicable, at
sentencing and in the court's sentencing judgment entry. State v. Singleton, 124 Ohio
St.3d 173, 2009-Ohio-6434, ¶ 22. In its decision addressing the imposition of post-
release control, the trial court concluded that appellant was fully advised of post-release
control at his sentencing and that his sentencing entry also properly referenced post-
release control. We agree.1
{¶ 13} Here, the trial court's sentencing entry stated that "the Court * * * notified
the Defendant that he will receive a period of post-release control of 5 years."
(Emphasis in original.) The trial court also notified appellant at his original sentencing
that he would be subject to a period of post-release control and of the consequences for
1 We reject appellant's argument that he must be separately notified of the term of post-release control for
each offense. State v. Darks, 10th Dist. No. 12AP-578, 2013-Ohio-176, ¶ 11 ("Thus, in multiple-offense
cases, the sentencing court need only notify the defendant of the longest applicable period of post-release
control."), citing State v. Reed, 6th Dist. No. E-11-049, 2012-Ohio-5983, ¶ 12.
No. 14AP-61 5
violating post-release control. Additionally, appellant also signed a form entitled "Notice
(Prison Imposed)" on the day of his sentencing. That notice informed him that he would
have a period of post-release control after his release from prison. The notice also
informed him of the possible consequences that would result from a violation of his post-
release control. These notifications are sufficient to properly impose post-release control.
State v. Bankston, 10th Dist. No. 13AP-250, 2013-Ohio-4346, ¶ 19-20.
{¶ 14} Because the trial court properly notified appellant of post-release control,
we overrule appellant's second assignment of error.
III. Conclusion
{¶ 15} Having overruled appellant's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and DORRIAN, JJ., concur.