[Cite as State v. Clemmons, 2018-Ohio-2747.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 27769
                                                     :
 v.                                                  :   Trial Court Case No. 07-CR-4544
                                                     :
 GREGORY CLEMMONS                                    :   (Criminal Appeal from
                                                     :    Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                             Rendered on the 13th day of July, 2018.

                                                ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

GREGORY CLEMMONS, #577-226, P.O. Box 69, London, Ohio 43140
    Defendant-Appellant, Pro Se

                                               .............
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FROELICH, J.

        {¶ 1} Gregory Clemmons appeals from a judgment of the Montgomery County

Court of Common Pleas, which resentenced him for the sole purpose of properly imposing

post-release control.    For the following reasons, the trial court’s judgment will be

affirmed.

        {¶ 2} In April 2008, after a jury trial, Clemmons was convicted of rape of a child

under the age of ten. The trial court sentenced him to 15 years to life in prison and

designated him a Tier III sex offender. The judgment entry included a notification that

Clemmons “will be supervised by the Parole Board for a period of FIVE years Post-

Release Control after the defendant’s release from imprisonment.” (Emphasis sic.) We

affirmed Clemmons’s conviction on direct appeal.            State v. Clemmons, 2d Dist.

Montgomery No. 22747, 2009-Ohio-2066.

        {¶ 3} In 2009, Clemmons sought post-conviction relief, which was denied.

Clemmons appealed that decision, but the appeal was dismissed for failure to prosecute

the matter.    State v. Clemmons, 2d Dist. Montgomery No. 23629 (Jan. 25, 2010).

Clemmons subsequently sought post-conviction DNA testing, which was denied. We

affirmed that decision. State v. Clemmons, 2d Dist. Montgomery No. 24377, 2011-Ohio-

4474.

        {¶ 4} In December 2013, Clemmons filed motions to vacate his sentence, which

were not resolved by the trial court. On August 18, 2017, Clemmons filed a “motion to

correct an illegal sentence,” claiming that the trial court failed to properly notify him that

he was subject to post-release control. Clemmons argued that his post-release control

obligation was included in the judgment entry, but he was not notified of that obligation at
                                                                                         -3-


sentencing.

       {¶ 5} On September 19, 2017, the trial court held a sentencing hearing to address

post-release control. At the hearing, the court informed Clemmons that the resentencing

was on post-release control only and that he had already been sentenced on the rape

offense. The court allowed Clemmons to make a statement on his own behalf, and

Clemmons expressed that the State used false testimony to obtain his conviction.

Clemmons stated that there were “seven different versions” of the accusation against him,

and he asserted that the jurors would not have convicted him had they known about the

multiple versions.

       {¶ 6} The trial court responded to Clemmons that the hearing was for resentencing

on post-release control only, that “all of the arguments and statements you have made

today have been issues that you have raised previously,” that his conviction had been

affirmed on appeal, and that the issues raised by him were barred by res judicata. The

court then informed Clemmons that, following his release from prison, he would be

required to serve a mandatory period of post-release control for five years. The court

also told Clemmons the consequences should he violate post-release control.

       {¶ 7} On September 21, 2017, the trial court entered an amended judgment entry

which again included Clemmons’s mandatory five-year post-release control obligation.

       {¶ 8} Clemmons appeals from the amended judgment entry.              He raises five

assignments of error, namely that (1) the prosecutor engaged in misconduct at trial,

(2) the indictment was insufficient to put him on fair notice of the charges against him,

(3) the State failed to disclose prior inconsistent statements by his accuser, (4) the court

erred in relying on “perjured testimony of Detective Dix” in denying Clemmons’s motion
                                                                                         -4-


to suppress, and (5) the trial court erred when it denied him the opportunity to present

evidence of other possible perpetrators.

       {¶ 9} If the defendant has committed an offense subject to post-release control

under R.C. 2967.28, the trial court must notify the defendant at sentencing of the post-

release control requirement and the consequences if the defendant violates post-release

control. R.C. 2929.19; State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d

718, ¶ 18. It is well-established that when a judge fails to impose the required post-

release control as part of a defendant’s sentence, “that part of the sentence is void and

must be set aside.” (Emphasis in original.) State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, ¶ 26; see also State v. Holdcroft, 137 Ohio St.3d 526, 2013-

Ohio-5014, 1 N.E.3d 382, ¶ 7. The improper post-release control sanction “may be

reviewed at any time, on direct appeal or by collateral attack.”         Fischer at ¶ 27.

However, res judicata still applies to all other aspects of conviction, including the

determination of guilt and the lawful elements of the sentence.” Id. at ¶ 40; Boyd v. State,

2d Dist. Montgomery No. 27553, 2018-Ohio-108, ¶ 33.

       {¶ 10} “Res judicata” means that a final decision has previously been made; it

serves to preclude a party who had his or her day in court from seeking a second hearing

on the same issue. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d

824, ¶ 18; Jones v. Mohler, 2d Dist. Montgomery No. 27105, 2017-Ohio-2683, fn.1.

       {¶ 11} Clemmons’s conviction was affirmed on direct appeal, and the trial court

had jurisdiction at the resentencing hearing only to properly impose post-release control.

Pursuant to Fischer, all of Clemmons’s assignments of error, which relate to pretrial or

trial matters, are barred by res judicata.
                                                                                         -5-

       {¶ 12} Clemmons claims that we should not follow Fischer, because Fischer is

contrary to authority from the United States Supreme Court and federal appellate courts.

As an intermediate appellate court, we are required to follow the holdings of the Ohio

Supreme Court, which is the ultimate authority on matters of state law. And, even with

respect to federal law, state courts generally are not bound by decisions of federal courts,

except for decisions of the United States Supreme Court. State v. Gillispie, 2016-Ohio-

7688, 65 N.E.3d 791, ¶ 30 (2d Dist.). Upon review of the authority cited by Clemmons,

we remain convinced that we must follow Fischer.

       {¶ 13} Clemmons’s assignments of error are overruled.

       {¶ 14} The trial court’s judgment will be affirmed.

                                     .............



DONOVAN, J. and HALL, J., concur.


Copies mailed to:

Mathias H. Heck
Sarah E. Hutnik
Gregory Clemmons
Hon. Mary Katherine Huffman
