STATE OF OHIO v. DOUGLAS L. FRYER
Case No. 15-CA-00013
COURT OF APPEALS, PERRY COUNTY, OHIO, FIFTH APPELLATE DISTRICT
November 2, 2015
2015-Ohio-4573
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Perry County Court of Common Pleas, Case No. 06-CR-0060
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 2, 2015
APPEARANCES:
For Plaintiff-Appellee: JOSPEH A. FLAUTT, Perry County Prosecuting Attorney, 111 N. High Street, Box 569, New Lexington, OH 43764
For Defendant-Appellant: DOUGLAS L. FRYER PRO SE, #A548-092, Box 57, Marion, OH 43301
{¶1} Appellant Douglas L. Fryer [“Fryer“] appeals the May 20, 2015 Judgment Entry of the Perry County Court of Common Pleas denying his “Motion for Hearing.”
Facts and Procedural History
{¶2} Fryer pleaded guilty to fifteen counts of Gross Sexual Imposition and the count of Rape on March 20, 2007.
{¶3} On April 17, 2007, Fryer was sentenced by the trial court and was found to be a sexual predator. This was pursuant to an agreement between the state and Fryer. The termination judgment entry was filed by the trial court on April 18, 2007.
{¶4} The court reviewed the Notice of Registration Duties of Sexually Oriented Offender or Child–Victim Offender. The form was signed by Fryer and filed with the court on April 7, 2007. Fryer did not file a direct appeal on any issues from either hearing.
{¶5} On March 12, 2014, Fryer filed a Motion to Correct Sentence. A request for an evidentiary hearing on Fryer’s classification as a sex offender was made therein. By entry filed June 6, 2014, the court granted the motion in part in accordance with Criminal Rule 32(C) and the Ohio Supreme Court’s decisions in State v. Baker, 119 Ohio St.3d 197, 893 N.E.2d 163 (2008) and State v. Lester, 130 Ohio St.3d 303, 2011–Ohio–5204, 958 N.E.2d 142. However, the trial court denied Fryer’s request for an evidentiary hearing. The nunc pro tunc termination entry was filed June 18, 2014.
{¶6} Fryer appealed the trial court‘s denial of his request for an evidentiary hearing. State v. Fryer, 5th Dist. Perry No. 14-CA-17, 2015-Ohio-509. [“Fryer I“]. In Fryer I, appointed counsel filed an appellate brief. Fryer I, ¶9 Appointed counsel raised
{¶7} This Court overruled counsel‘s and Fryer‘s pro se assignments of error and affirmed the June 6, 2014 judgment entry of the Perry County Court of Common Pleas. Fryer I, ¶26.
{¶8} On May 1, 2015, Fryer pro se filed a “Motion for Hearing” contending: he was not notified of his right to appeal during the original sentencing hearing; the trial court failed to properly notify him concerning post release controls; the trial court failed to conduct the classification hearing in accordance with
{¶9} The state filed a response on May 18, 2015. By judgment entry filed May 20, 2015, the trial court denied Fryer‘s motion.
Assignments of error
{¶10} Fryer raises four assignments of error,
{¶11} “I. THE TRIAL COURT ERRED WHEN DISREGARDING STATUTORY REQUIREMENTS WHEN IT DID NOT COMPLY WITH 32(B).
{¶13} “III. THE TRIAL COURT ERRED WHEN IT DID NOT COMPLY WITH
{¶14} “IV. THE TRIAL COURT ERRED WHEN THE COURT DISREGARDED AND FAILED TO EXERCISE ITS STATUTORILY REQUIRED DUTIES DURING THE DEFENDANTS [SIC.] ALLEGED CLASSIFICATION HEARING.”
Pro se Appellants
{¶15} We understand that Fryer has filed this appeal pro se. Nevertheless, “like members of the bar, pro se litigants are required to comply with rules of practice and procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11. We also understand that “an appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance with the appellate rules.” State v. Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).
{¶16} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528 (2001), the Supreme Court noted, “a reviewing court cannot add matter to the record before it that was not a part of the trial court‘s proceedings, and then decide the appeal on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978).” It is also a longstanding rule “that the record cannot be enlarged by factual assertions in the brief.” Dissolution of Doty v. Doty, 4th Dist.No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227 (1963). New material and factual assertions contained in
{¶17} In the interests of justice, we shall attempt to consider Fryer’s assignments of error.
I.
{¶18} In Fryer‘s first assignment of error, he argues that the trial court did not inform him of his right to appeal his conviction.
{¶19} Under Crim.R. 32(B), a trial court is required to notify the defendant of his appellate rights. At the plea hearing, the court asked the defendant if he understood that he was waiving all the rights aside of his right to appeal within thirty (30) days. Further, Fryer signed a plea of guilty form filed with the court on March 20, 2007. Included in the Plea of Guilty executed by Fryer is the language: “I understand my right to appeal a maximum sentence, my other limited appellate rights and that any appeal must be filed within thirty (30) days.”
{¶20} Upon review of the record, we conclude that any harm that resulted from the trial court‘s failure to notify Fryer about his appellate rights has been remedied by this subsequent appeal. See, Fryer I. See, State v. Finch, 5th Dist. Licking No. 11 CA 6, 2011-Ohio-4273, ¶27; State v. Thompson, 4th Dist. Washington Nos. 10CA5, 10CA13, 2012-Ohio-3188. In Fryer I not only did Fryer have appointed counsel to file a brief, he himself filed a brief, which this Court considered.
{¶21} Fryer‘s first assignment of error is overruled.
{¶22} In his second assignment of error, Fryer contends the trial court did not properly make a finding of guilty.
{¶23} In State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, the Ohio Supreme Court held that a “judgment of conviction is a final appealable order under
{¶24} Baker, interpreting the plain language of Crim. R. 32(C), never held that the phrase “defendant was convicted” was required to be in the sentencing entry. There is also no such requirement in former Crim.R. 32(C) or in former Crim.R. 32(B). Lester, dealing with a different problem, held that a sentencing entry that included the fact of conviction, but that did not describe the manner of conviction, i.e., whether there was a jury trial or a plea agreement, was also a final appealable order. Lester at ¶ 15. Lester also held that the defendant could obtain a nunc pro tunc corrected sentencing entry, if desired, so that the manner of conviction could be part of the record. State v. Fowler, 7th Dist. Mahoning No. 14 MA 124, 2015-Ohio-1053, ¶12.
{¶26} Unlike a plea of no contest, which requires a trial court to make a finding of guilt, State v. Bird, 81 Ohio St.3d 582, 584, 692 N.E.2d 1013 (1998), a plea of guilty requires no finding or verdict. Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927) (“A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury, it is conclusive. More is not required; the court has nothing to do but give judgment and sentence”).
{¶27} In the case at bar, Fryer signed a written plea of guilty. Fryer pled guilty in open court. The trial court accepted Fryer‘s guilty plea and pronounced sentenced. The nunc pro tunc sentencing entry in this case contains the guilty plea, the sentence, and the signature of the judge, and was a final appealable order pursuant to former Crim.R. 32(B).
{¶28} Fryer‘s second assignment of error is overruled.
{¶29} In his third assignment of error, Fryer argues the trial court failed to properly notify him about post release control.
{¶30} “When 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.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph 2 of the syllabus. In Jordan, the Supreme Court found that the trial court erred by failing to notify the defendants about post release control at the sentencing hearings, despite incorporating that notice into their respective sentencing entries. Id. at ¶17.
{¶31}
(c) Notify the offender that the offender will be supervised under
(d) Notify the offender that the offender may be supervised under
(e) Notify the offender that, if a period of supervision is imposed following the offender’s release from prison, as described in division (B)(2)(c) or (d) of this section, and if the offender violates that supervision or a condition of post release control imposed under division (B) of
(Emphasis added). Additionally
(B) Each sentence to a prison term for a felony of the first degree, for a felony of the second degree, for a felony sex offense, or for a felony of the third degree that is an offense of violence and is not a felony sex offense shall include a requirement that the offender be subject to a period of post-release control imposed by the parole board after the offender’s release from imprisonment. This division applies with respect to all prison terms of a type described in this division, including a term of any such type that is a risk reduction sentence. If a court imposes a sentence including a prison term of a type described in this division on or after July 11, 2006, the failure of a sentencing court to notify the offender pursuant to division (B)(2)(c) of
* * *
(C) Any sentence to a prison term for a felony of the third, fourth, or fifth degree that is not subject to division (B)(1) or (3) of this section shall include a requirement that the offender be subject to a period of post release control of up to three years after the offender’s release from imprisonment, if the parole board, in accordance with division (D) of this section, determines that a period of post release control is necessary for that offender. This division applies with respect to all prison terms of a type described in this division, including a term of any such type that is a risk reduction sentence.
(Emphasis added). As we noted in State v. Miller, 5th Dist. Stark No. 2013CA00115, 2014-Ohio-18,
In the event post release control is not correctly imposed,
For such offenders,
{¶33} Post release control constitutes a portion of the maximum penalty. State v. Jones, 5th Dist. Nos. 10CA75, 10CA76, 10CA77, 2011–Ohio–1202. In State v. Clark, 119 Ohio St.3d at 244, 893 N.E.2d 462, 2008–Ohio–3748, the Ohio Supreme Court concluded that the right to be informed of the maximum possible penalty and the effect of the plea are subject to the substantial compliance test. 119 Ohio St.3d at 244, 893 N.E.2d 462, 2008–Ohio–3748 at ¶ 31. (Citations omitted). We review the trial court’s colloquy under the substantial-compliance standard because the notification of post release control impacts the right to be informed of the maximum penalty. State v. Harris, 5th Dist. Licking No. 12 CA 82, 2013-Ohio-2056, ¶29. Under the substantial-compliance standard, we analyze the totality of circumstances.
{¶34} In the case at bar, the trial court informed Fryer during his sentencing hearing,
The Court further informs you of [sic.] this time that periods of supervision by adult parole supervision is mandatory in this case and the sentenced [sic.] to prison for a felony 1 or felony sex offense, which would be the situation here after my prison release I will have five years of post release control under conditions determined by the Parole Board. If am sentenced to prison for a felony 2 or a felony 3 which involves causing or threatening physical harm, [sic.] states you will have mandatory post release control of three years. If you receive prison for a felony 3, 4, or 5,
[Fryer]: Yes, Your Honor.
Sentencing Hearing, Apr. 17, 2007 at 7-8. The “Nunc Pro Tunc Termination Judgment Entry,” filed June 18, 2014, states in relevant part,
The Court has further notified the defendant that post release control of five (5) years is mandatory in this case as well as the consequences of violating conditions of post release control imposed by the Parole Board under
{¶36} Fryer‘s third assignment of error is overruled.
IV.
{¶37} We interpret Fryer‘s fourth assignment of error to be that the trial court erred when it accepted his stipulation to his classification as a sexual predator because the trial court failed to conduct a hearing, receive evidence and apply the factors delineated in
{¶38} This argument was fully considered and rejected by this Court in Fryer I. Under the doctrine of res judicata, a final judgment bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding, except an appeal
{¶39} Fryer‘s fourth assignment of error is overruled.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur