STATE OF OHIO, Plаintiff-Appellee, - vs - JESSE L. GOODEN, Defendant-Appellant.
CASE NO. CA-25677
IN THE COURT OF APPEALS NINTH APPELLATE DISTRICT SUMMIT COUNTY, OHIO
2011-Ohio-4993
[Cite as State v. Gooden, 2011-Ohio-4993.]
CYNTHIA WESTCOTT RICE, J., Eleventh Appellate District, sitting by assignment.
Criminal Appeal from the Court of Common Pleas, Case No. CR 08 10 3381. Judgment: Affirmed in part, reversed in part, and remanded.
Sherri Bevan Walsh, Summit County Prosecutor, and Richard S. Kasay, Assistant Prosecutor, Appellate Division, Summit County Safety Building, 53 University Avenue, 6th Floor, Akron, OH 44308 (For Plaintiff-Appellee).
Jesse L. Gooden, pro se, PID: 571-717, Richland Correctional Institution, P.O. Box 8107, Mansfield, OH 44901 (Defendant-Appellаnt).
{¶1} Appellant, Jesse L. Gooden, appeals the judgment of the Summit County Court of Common Pleas denying appellant‘s “Motion for Proper Sentencing Order and Final Order.” We affirm in part, reverse in part, and remand the matter for further proceedings.
{¶2} In October 2008, appellant and a male passenger were sitting in a vehicle at a McDonald‘s parking lot in Akron, Ohio. Detective Nicholas Gray, a plainclothes
{¶3} Detective Gray radioed Detective Michael Yavanno, another officer with the drug unit, for backup. Detective Yavanno arrived within seconds in an unmarked SUV and parked behind the suspect vehicle. Both officers approached the vehicle and addressed the occupants. Although Deteсtive Gray advised appellant to keep the car in park, appellant suddenly reversed the vehicle, striking Detective Yavanno‘s SUV. Detective Gray drew his firearm, identified himself as a police officer, and ordered appellant to stop. Instead of stopping, Detective Gray stated appellant drove the vehicle directly at him. In an effort to stop the vehicle or cause it to change directiоn, the detective fired four rounds at the car. The vehicle immediately veered away from the officer‘s path, jumped a curb in the parking lot, and sped off. Appellant was eventually apprehended and arrested.
{¶4} On October 23, 2009, appellant was indicted on one count of felonious assault against a peace officer, in violation of
{¶5} After trial, the jury returned a verdict of guilty on each remaining count and, after a sentencing hearing, the trial court impоsed a prison term of eight years for the conviction on felony-one felonious assault on a peace officer; one year for the conviction on felony-three failure to comply; and one year for the conviction on felony-five vandalism. Appellant‘s sentences for felonious assault on a peace officer and failure to comply were ordered to run consecutively with each other, and the sentence for vandalism to run concurrently with that term for an aggregate sentence of nine years. Appellant appealed his conviction and, in State v. Gooden, 9th Dist. No. 24896, 2010-Ohio-1961, this court affirmed the jury‘s verdict.1
{¶6} On October 8, 2010, appellant filed a “Motiоn for Proper Sentencing Order and Final Order.” On October 20, 2010, the trial court overruled the motion. Appellant now appeals, alleging the following assignment of error:
{¶7} “The Trial Court erred by improperly sentencing Appellant on (Count 4) of the Indictment for which the Jury never found him Guilty of and issue a final appealable order.” (Sic.)
{¶8} Appellant argues his sentence is void because the jury convicted him of felonious assault as designated in Cоunt One, which was dismissed, but he was
{¶9} Appellant was originally indicted on two counts of felonious assault against a peace officer, in violation of
{¶10} We acknowledge that the verdict form improperly labeled Count Four as Count One. Nevertheless, both the dismissed count and the remaining cоunt charged appellant with the same nominal crime. As a result, it cannot be said appellant was convicted of an offense for which he was not indicted. Hence, the trial court‘s failure to refer to the correct count in the verdict forms, even if an error, did not deprive it of jurisdiction to impose sentence on the otherwise proper verdict. State ex rel. Dothard v. Warden, Trumbull Correctional Inst., 11th Dist. No. 2002-T-0145, 2003-Ohio-325, at ¶9 (even assuming a verdiсt form includes an error, such an error is procedural and therefore does not affect the court‘s jurisdiction to impose sentence on the verdict). The
{¶11} In State v. Martin, 9th Dist. No. 25534, 2011-Ohio-1781, this court held that a defendant who fails to raise a challenge to a verdict form in his direct appeal is barred by res judicata from raising the argument in a subsequent proceeding. Id. at ¶7. See, also, State v. Evans, 9th Dist. No. 10CA0027, 2011-Ohio-1449, at ¶9 (holding that “becausе [the appellant] could have raised issues related to the jury verdict forms in his direct appeal, he is foreclosed from raising the issue at this time.“) As appellant could have but failed to challenge the verdict form on his direct appeal, he is now precluded from raising the issue. Appellant‘s assignment of error is therefore overruled.
{¶12} Finally, although appellant does not raise the issue of post-release cоntrol, we shall sua sponte consider the issue because it impacts his substantial rights. See
{¶13} A defendant convicted of a first-degree felony must serve a mandatory five-year term of post-release control.
{¶14} Furthermore, although the trial cоurt‘s sentencing entry states appellant will serve five years of post-release control after his release, it failed to advise appellant that if he violates post-release control, the parole board could impose an additional prison term of up to one-half of his prison sentence. “Both the period of postrelease control and the possible violation sanctions must be ‘included in thе judgment entry journalized by the court.‘” State v. Leasure, 9th Dist. No. 25596, 2011-Ohio-3665, at ¶5, quoting State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, at ¶11.
{¶15} “[W]hen a judge fails to impose statutorily mandated postrelease control as part of a defendant‘s sentence, that part of the sentence is void and must be set aside.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, at ¶27. Only the оffending portion of the sentence is subject to correction, however, and the remainder of the sentence remains valid. Id. at ¶17. For offenders sentenced after July 11, 2006, a trial court must employ the procedures sеt forth in
{¶16} Appellant was sentenced on July 9, 2009, well after the enactment of
{¶17} Although appellant‘s assigned error is not well taken, the trial court‘s judgment denying appellant‘s motion for proper sentencing order is reversed and the matter is remanded for proper post-release control notification pursuant to the procedures set forth under
TIMOTHY P. CANNON, P.J.,
Eleventh Appellate District,
Sitting by assignment,
DIANE V. GRENDELL, J.,
Eleventh Appellate District,
Sitting by assignment,
concur.