[Cite as State v. Feagin, 2015-Ohio-5107.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 15CA41
MARCO FEAGIN

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Court of
                                               Common Pleas, Case No. 2003-CR0086 H


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         December 8, 2015


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


BAMBI COUCH PAGE                               MARCO FEAGIN, PRO SE, #480-240
Prosecuting Attorney                           ALLEN CORRECTIONAL INSTITUTE
Richland County, Ohio                          2238 North West Street
                                               P.O. Box 4501
BY: DANIEL M. ROGERS                           Lima, Ohio 45802
Assistant Prosecuting Attorney
Richland County Prosecutor’s Office
38 S. Park Street
Mansfield, Ohio 44902
Richland County, Case No. 15CA41                                                            2

Hoffman, P.J.


         {¶1}   Defendant-appellant Marco A. Feagin appeals the April 14, 2015 Judgment

Entry entered by the Richland County Court of Common Pleas denying his delayed

motion for new trial. Plaintiff-appellee is the state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   On January 17, 2004, Appellant shot and killed James Williams at the

American Legion in Mansfield, Ohio. Following a jury trial, Appellant was convicted of one

count of murder, with a firearm specification; one count of possession of a firearm in a

liquor permit premises; and one count of possession of a weapon under disability.

         {¶3}   The trial court sentenced Appellant to fifteen years to life on the murder

count, to be served consecutive to the three year sentence on the firearm specification.

The trial court sentenced Appellant to one year in prison on the charge of possession of

a weapon in a liquor permit premises, and one year in prison for the charge of possession

of a weapon under disability.

         {¶4}   On November 18, 2009, Appellant filed a motion for resentencing, and on

March 1, 2010, a motion to vacate void judgment and order new sentencing hearing.

         {¶5}   On March 24, 2010, Appellant was resentenced for the purpose of imposing

mandatory post-release control. A new sentencing entry was entered on March 25, 2010,

imposing the original sentence and adding a five year term of mandatory post-release

control.




1   A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Richland County, Case No. 15CA41                                                       3


      {¶6}   Appellant filed an appeal from the March 24, 2010 resentencing entry in

State v. Feagin, Richland No. 10CA46, 2011-Ohio-2025. This Court affirmed the trial

Court’s entry via Opinion and Judgment Entry of April 25, 2011.

      {¶7}   On March 27, 2015, Appellant filed a motion for leave to file delayed motion

for new trial pursuant to Ohio Criminal Rule 33(A)(2). The trial court denied the motion

via Judgment Entry of April 14, 2015.

      {¶8}   Appellant appeals, assigning as error:

      {¶9}   “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT ALLOWING THE PROSECUTION DURING CLOSING ARGUMENT TO

MAKE INFLAMMATORY REMARKS IN THE PRESENCE OF THE JURY WITHOUT

ANY     CURATIVE       INSTRUCTIONS         THEREAFTER            PERMITTING      SUCH

PROSECUTORIAL MISCONDUCT TO GO UNCHECKED WAS PLAIN ERROR AND

VIOLATIVE OF APPELLANT’S RIGHTS TO A FAIR TRIAL.

      {¶10} “II. DID THE PROSECUTOR KNOWINGLY ILLICIT AND USE PERJURED

TESTIMONY WHICH WOULD               ORDINARILY        KNOWN TO       PREJUDICE      THE

APPELLANT’S RIGHT TO A FAIR TRIAL?

      {¶11} “III. DID THE CUMULATIVE EFFECTS OF THE MISCONDUCT OF THE

PROSECUTING ATTORNEY’S INFLAMMATORY REMARKS MAKE GROUNDS FOR A

MISTRIAL AND THE CONTRIBUTING RESULTS OF THE JURY’S FINDINGS TO

MURDER AND SENTENCING?

      {¶12} “IV. DID THE COURT EXCEED ITS SUBJECT-MATTER JURISDICTION

IN EXPOSING APPELLANT TO A FIVE YEAR TERM OF POST-RELEASE CONTROL,
Richland County, Case No. 15CA41                                                       4


WHERE [PRC] CANNOT ATTACH AND/OR WHETHER THERE WERE GROUNDS

FOR A NEW TRIAL?”

                                           I, II, and III.

       {¶13} On appeal in State v. Feagin, Richland 10 CA 46, 2011-Ohio-2025,

Appellant assigned as error,

              “I. DID THE TRIAL COURT ERRED [SIC] IN NOT DISMISSING THE

       CASE DUE TO UNREASONABLE DELAY?

              “II. DID THE PROSECUTOR KNOWINGLY USE PERJURED

       TESTIMONY?

              “III.   CONVICTION      SHOULD        BE       REVERSED   DUE     TO

       INSUFFICIENCY OF EVIDENCE AND A FAILURE OF THE STATE TO

       CARRY THE MANIFEST WEIGHT OF THE EVIDENCE BURDEN?

              “IV. DID THE PROSECUTOR COMMIT PROSECUTOR MISCONDUCT?”

       {¶14} Ohio Rule of Criminal Procedure 33 governs a motion for new trial, stating

in pertinent part,

              A new trial may be granted on motion of the defendant for any of the

       following causes affecting materially his substantial rights:

              (A) Grounds

              (1) Irregularity in the proceedings, or in any order or ruling of the

       court, or abuse of discretion by the court, because of which the defendant

       was prevented from having a fair trial;

              (2) Misconduct of the jury, prosecuting attorney, or the witnesses for

       the state;
Richland County, Case No. 15CA41                                                      5


            (3) Accident or surprise which ordinary prudence could not have

      guarded against;

            (4) That the verdict is not sustained by sufficient evidence or is

      contrary to law. If the evidence shows the defendant is not guilty of the

      degree of crime for which he was convicted, but guilty of a lesser degree

      thereof, or of a lesser crime included therein, the court may modify the

      verdict or finding accordingly, without granting or ordering a new trial, and

      shall pass sentence on such verdict or finding as modified;

            (5) Error of law occurring at the trial;

            (6) When new evidence material to the defense is discovered which

      the defendant could not with reasonable diligence have discovered and

      produced at the trial. When a motion for a new trial is made upon the ground

      of newly discovered evidence, the defendant must produce at the hearing

      on the motion, in support thereof, the affidavits of the witnesses by whom

      such evidence is expected to be given, and if time is required by the

      defendant to procure such affidavits, the court may postpone the hearing of

      the motion for such length of time as is reasonable under all the

      circumstances of the case. The prosecuting attorney may produce affidavits

      or other evidence to impeach the affidavits of such witnesses.

            (B) Motion for new trial; form, time

            Application for a new trial shall be made by motion which, except for

      the cause of newly discovered evidence, shall be filed within fourteen days

      after the verdict was rendered, or the decision of the court where a trial by
Richland County, Case No. 15CA41                                                          6


       jury has been waived, unless it is made to appear by clear and convincing

       proof that the defendant was unavoidably prevented from filing his motion

       for a new trial, in which case the motion shall be filed within seven days from

       the order of the court finding that the defendant was unavoidably prevented

       from filing such motion within the time provided herein.

              Motions for new trial on account of newly discovered evidence shall

       be filed within one hundred twenty days after the day upon which the verdict

       was rendered, or the decision of the court where trial by jury has been

       waived. If it is made to appear by clear and convincing proof that the

       defendant was unavoidably prevented from the discovery of the evidence

       upon which he must rely, such motion shall be filed within seven days from

       an order of the court finding that he was unavoidably prevented from

       discovering the evidence within the one hundred twenty day period.

       {¶15} Res judicata bars the assertion of claims against a valid, final judgment of

conviction that have been raised or could have been raised on appeal. State v. Perry

(1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the

syllabus.

       {¶16} On appeal in Appellant's prior appeal, this Court considered the same

claims that Appellant now attempts to raise in his delayed motion for new trial. Via opinion

and Judgment Entry in State v. Feagin 10 CA 46, 2011 Ohio 2025, this Court rejected the

arguments.
Richland County, Case No. 15CA41                                                            7


       {¶17} We therefore find Appellant's arguments raised in the first, second and third

assignments of error are barred under the doctrine of res judicata. Accordingly, they are

overruled.

                                                 IV.

       {¶18} In the fourth assignment of error, Appellant maintains the trial court's March

25, 2010 resentencing entry was void as the trial court illegally imposed a mandatory term

of five years post-release control.

       {¶19} A sentence that does not include the statutorily mandated term of post-

release 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.” State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the

syllabus; see also State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961,

¶ 16; State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864 (where

postrelease notification is absent from the sentencing hearing, the sentence is void and

must be vacated and remanded to the trial court for de novo sentencing); State v. Beasley,

14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984); Colegrove v. Burns, 175 Ohio St. 437, 195

N.E.2d 811 (1964). See, this Court's holding in State v. Billiter, 134 Ohio St. 3d 103, 105,

980 N.E.2d 960, 963, 2012-Ohio-5144.

       {¶20} Upon review of the sentencing statutes in effect at the time of Appellant's

sentence, we find the trial court did not err in sentencing Appellant. Appellant's sentence

is not contrary to law; therefore, not void or invalid. As a result, Appellant's fourth

assignment of error is also barred by the doctrine of res judicata as well as being

erroneous on the merits.
Richland County, Case No. 15CA41                                           8


      {¶21} The April 14, 2015 Judgment Entry of the Richland County Court of

Common Pleas is affirmed.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur
