State v. DarksState v. Darks
Rendered on January 24, 2013
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Rico L. Darks, pro se.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶ 1} Defendant-appellant, Rico L. Darks, pro se, appeals from a judgment of the Franklin County Court of Common Pleas denying his motion for resentencing. For the following reasons, we affirm.
I. BACKGROUND
{¶ 2} In June 2005, appellant pleaded guilty to possession of cocaine in violation of
{¶ 3} In February 2012, appellant, acting pro se, filed a motion for a de novo sentencing hearing in the trial court. Appellant argued that a new sentencing hearing was
{¶ 4} On April 25, 2012, appellant filed a “Motion to Impose a Valid Sentence To
II. DISCUSSION
{¶ 5} Appellant now appeals, presenting the following assignment of error for our consideration:
TRIAL COURT ERRED BY FAILING TO PROPERLY IMPOSE POST-RELEASE CONTROL; MISTATEMENT OF THE STATUTORILY MANDATED TERM IN CASE NO. (05-CR-2912); AS WELL AS FAILURE TO JOURNALIZE POST-RELEASE CONTROL SANCTIONS/MANDATE IN THE DEFENDANT‘S JUDGMENT ENTRIE [sic] IN CASE NO (05-CR-2912) AND (04-CR-1481).
{¶ 6} Appellant‘s sole assignment of error consists entirely of challenges unrelated to the judgment identified in his notice of appeal. Although he appeals from the trial court‘s judgment entered on June 20, 2012, his brief presents the same post-release control arguments as those contained in his February 2012 motion for de novo sentencing, which the trial court denied on March 14, 2012. Because appellant‘s brief does not present any arguments relating to the trial court‘s June 2012 judgment, he has failed to satisfy his “burden of affirmatively demonstrating error by the trial court.” State v. Sullivan, 10th Dist. No. 10AP-997, 2011-Ohio-6384, ¶ 87. To the extent appellant challenges the trial court‘s March 2010 judgment denying his post-release control-related sentencing motion, “[w]e have jurisdiction to review assignments of error stemming only from the judgment subject of the notice of appeal.” State v. Thompkins, 10th Dist. No. 07AP-74, 2007-Ohio-4315, ¶ 7, citing
{¶ 7} Nevertheless, even if appellant‘s post-release control arguments were properly related to the underlying judgment, we find them to be barred by the doctrine of res judicata. 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. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. Although res judicata does not preclude review of a “void” sentence, the doctrine “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. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph three of the syllabus. Thus, to survive the res judicata bar, appellant was required to demonstrate that his sentence was “void.” State v. Reed, 10th Dist. No. 11AP-792, 2012-Ohio-1612, ¶ 8.
{¶ 8} The imposition of post-release control consists of (1) notification of post-release control at the time of sentencing and (2) incorporation of post-release control in the sentencing entry. State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶ 18-19. Notification at sentencing must, in cases where post-release control is mandatory, include a notification that the offender “will be supervised under [
{¶ 9} At the sentencing hearing, the trial court orally notified appellant that he was subject to a mandatory five-year period of post-release control and of the consequences of violating post-release control. The trial court also provided this notification in a form entitled “Notice (Prison Imposed),” which appellant signed the same day. Additionally, the sentencing entry states the following regarding post-release
{¶ 10} Appellant first disputes the trial court‘s notification regarding post-release control at the sentencing hearing. He claims that the trial court misstated that he was subject to a mandatory five-year term of post-release control because the offense of cocaine possession to which he pleaded guilty was a second-degree felony, carrying only a mandatory three-year post-release control term.
{¶ 11} While we agree that appellant‘s second-degree felony was subject to a mandatory three-year term, rather than a mandatory five-year term, see
{¶ 12} Appellant also contends that the post-release control portion of his sentence is void because post-release control was not properly incorporated into the sentencing entry. We disagree. This court has concluded, in rejecting similar arguments, that post-
{¶ 13} Appellant also argues that the sentencing entry was deficient because it does not recite the consequences of violating post-release control as stated by the trial court at the sentencing hearing. However, the entry specifically states that appellant was notified of post-release control, pursuant to
{¶ 14} Accordingly, appellant‘s sole assignment of error is overruled.
III. CONCLUSION
Having overruled appellant‘s sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and DORRIAN, JJ., concur.