State v. BregenState v. Bregen
Allen G. Bregen aka Alan G. Bregen, #A506729, Lebanon Correctional Institution, P.O. Box 56, Lebanon, Ohio 45036-0056, defendant-appellant, pro se
BRESSLER, J.
{¶1} Defendant-appellant, Allen G. Bregen aka Alan G. Bregen, appeals from a decision of the Clermont County Court of Common Pleas denying his motion to withdraw his guilty pleas. We affirm the trial court‘s decision denying Bregen‘s motion to withdraw his guilty pleas, but vacate the portion of the trial court‘s 2006 judgment entry advising Bregen that “post-release control is mandatory in this case up to a maximum of five (5) years[,]” since
{¶2} In 2005, Bregen was found guilty of four counts of rape of a person under the age of 13 in violation of
{¶3} In 2010, Bregen, acting pro se, filed in the trial court a motion to withdraw his guilty pleas under
{¶4} Bregen now appeals, assigning the following as error:
{¶5} Assignment of Error No. 1:
{¶6} “THE TRIAL COURT ERRORED [sic] WHEN IT FAILED TO SEPERATE [sic] THE OFFENSES AS THEY WERE IMPROPERLY MERGED.”
{¶7} Assignment of Error No. 2:
{¶8} “THE TRIAL COURT ERRORED [sic] WHEN IT FAILED TO INFORM THE DEFENDANT OF A MANDATORY PERIOD OF POST-RELEASE CONTROL.”
{¶9} Assignment of Error No. 3:
{¶10} “THE TRIAL COURT ERRORED [sic] WHEN IT MANDATED THAT THE DEFENDANT REGISTER AS A SEXUAL PREDATOR AS IT WAS NOT LISTED IN THE INDICTMENT.”
{¶11} Bregen essentially argues (1) his convictions and sentences on the four counts of rape of a person under the age of 13 should have been merged under
{¶12} We agree with the state that the trial court lacked jurisdiction to grant Bregen‘s motion to withdraw his guilty pleas under
{¶13} Applying State ex rel. Special Prosecutors to this case, we find that when the trial court convicted and sentenced Bregen on four counts of rape of a person under the age of 13 in 2005, the trial court lost jurisdiction over the matter when Bregen filed his direct appeal with this court. The trial court obtained jurisdiction once more in 2006 when this court remanded the case to the trial court for resentencing in light of Foster. However, when the trial court issued its December 28, 2006 judgment entry resentencing Bregen and Bregen appealed the trial court‘s judgment to this court, the trial court again lost jurisdiction over this case, and the trial court did not regain jurisdiction after this court affirmed the trial court‘s judgment resentencing Bregen.
{¶14} Bregen implicitly concedes that the trial court lacked jurisdiction to grant his motion to withdraw his guilty pleas under
{¶15} Furthermore, Bregen could have raised the issues and arguments he is now raising on appeal in the trial court during the original proceedings in this case or in his direct appeal to this court from his convictions and sentences, and since he did not, those matters are generally deemed to be res judicata. See, e.g., In re J.B., Butler App. Nos. CA2005-06-176, CA2005-07-193, CA2005-08-377, 2006-Ohio-2715, ¶15, quoting State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus (“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 trial, which resulted in that judgment of conviction, or on an appeal from that judgment.“)
{¶16} Nevertheless, the state concedes that the trial court erred when it failed to properly inform Bregen about the mandatory five-year period of postrelease control imposed on him as a result of his convictions—an issue that Bregen raises in his second assignment of error. Specifically, the state points out that the trial court, in its December 29, 2006 judgment entry resentencing Bregen, used the “up to” language in notifying him of his postrelease control obligations. The state contends that the use of such language constitutes plain error, and therefore “[t]here must be a reversal and remand for the correction of the error pursuant to
{¶17} In State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6058, paragraph one of the syllabus, the court held that “[w]hen sentencing a felony offender to a term of imprisonment, a trial court is required to notify the offender at the sentencing hearing about post-release control and is further required to incorporate that notice into its journal entry imposing sentence.” In State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, syllabus, the court stated:
{¶18} “When a defendant is convicted of or pleads guilty to one or more offenses and postrelease control is not properly included in a sentence for a particular offense, the sentence for that offense is void. The offender is entitled to a new sentencing hearing for that particular offense.”
{¶19} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraphs one through four of the syllabus, the court affirmed the first sentence of the Bezak syllabus but modified the second sentence of the Bezak syllabus as follows:
{¶20} “1. A sentence that does not include the statutorily mandated term of postrelease 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.
{¶21} “2. The new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control. (State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, syllabus, modified.)
{¶22} “3. 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.
{¶23} “4. The scope of an appeal from a resentencing hearing in which a mandatory term of postrelease control is imposed is limited to issues arising at the resentencing hearing.”
{¶24} Bregen was convicted of four, first-degree felonies and was re-sentenced after July 11, 2006. Therefore under
{¶25} This court has held that a trial court‘s use of the words “up to” in informing a defendant about the number of years that the defendant will be subject to postrelease control following his sentence fails to adequately inform the defendant about both the mandatory nature of postrelease control and the number of years of postrelease control that a defendant must serve following his sentence, since “it improperly implies that he could be subject to something less than the statutorily required term.” State v. Gann, Butler App No. CA2010-07-153, 2011-Ohio-895, ¶19. See, also, State v. Addis, Brown App. No. CA2009-05-019, 2010-Ohio-1008, ¶22. As a result, the portion of the trial court‘s December 29, 2006 judgment entry resentencing Bregen that fails to properly advise him about the statutorily mandated term of postrelease control is void. See Fischer, 2010-Ohio-6238 at paragraph one of the syllabus. Moreover, this court is not precluded from reviewing this error by principles of res judicata, and the error may be reviewed at any time on direct appeal or by collateral attack. Id. at ¶30. Therefore, we must remand this case to the trial court so that the trial court “can employ the ‘sentence-correction mechanism of
{¶26} Consequently, Bregen‘s second assignment of error is sustained to the extent indicated.
{¶27} By contrast, the issues raised in Bregen‘s first and third assignments of error are still subject to the bar of res judicata, as Bregen could have raised these issues in the trial court at his original sentencing or in this court in his direct appeal of his convictions and sentences but did not, see In re J.B., 2006-Ohio-2715 at ¶15, quoting Perry, 10 Ohio St.2d 175, paragraph nine of the syllabus, and Bregen has failed to demonstrate that the remaining
{¶28} For example, in his first assignment of error, Bregen essentially argues that his convictions and sentences on the four counts of rape of a person under the age of 13 should have been merged under
{¶29} While Bregen asserts that the offenses of which he was convicted were committed at the same time and with the same animus, the record shows that the offenses against the children took place “over no less than a two-month period of time[,]” during which Bregen “performed oral sex on each of his children, instructed them to perform oral sex on each other, masturbated in front of them, and ejaculated on his daughter.” Bregen, 2006-Ohio-4691 at ¶11. The record shows that the incidents forming the basis of the counts to which Bregen pled guilty and for which he was convicted and sentenced took place “on several separate occasions over a period of time[,]” and “[t]he crimes were committed separately and there was a separate animus for each crime.” State v. Thomas, Brown App. No. CA2002-01-001, 2003-Ohio-74, ¶16. Thus, the record does not support Bregen‘s claim that the offenses for which he was convicted and sentenced were committed with the same animus for purposes of
{¶30} In light of the foregoing, Bregen‘s first assignment of error is overruled.
{¶31} In his third assignment of error, Bregen contends that the trial court erred by
{¶32} Accordingly, Bregen‘s third assignment of error is overruled.
{¶33} The judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.
HENDRICKSON, P.J., and RINGLAND, J., concur.