[Cite as State v. Wolke, 2019-Ohio-1481.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               ADAMS COUNTY

STATE OF OHIO,                 :
                               :    Case No. 18CA1071
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
NICHOLAS WOLKE,                :
                               :
    Defendant-Appellant.       :    Released: 04/15/19
_____________________________________________________________
                         APPEARANCES:

Nicholas Wolke, Chillicothe, Ohio, Pro Se Appellant.

C. David Kelley, Adams County Prosecutor, and Michele L. Harris,
Assistant Adams County Prosecutor, West Union, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Nicholas Wolke appeals the judgment entry of the Adams

County Court of Common Pleas, entered August 9, 2018, which denied his

Motion to Set Aside Judgment and Plea. In the first assignment of error,

Appellant asserts that the trial court erred by accepting his plea when he was

under the influence of drugs. In his second assignment of error, Appellant

also argues the trial court erred in sentencing him to post-release control.

Upon review, we find the argument under the first assignment of error is

barred by application of the doctrine of res judicata. However, Appellant’s
Adams App. No. 18CA1071                                                        2

second assignment of error has merit. Accordingly, we find that the trial

court erred by imposing post-release control as part of Appellant’s sentence.

Therefore, we affirm, in part, the trial court’s August 9, 2018 judgment

entry. However, we also remand this matter and instruct the trial court to

correct the December 19, 2008 Judgment Entry on sentencing in accordance

with this opinion.

            FACTUAL AND PROCEDURAL BACKGROUND

      {¶2} We recount the facts and procedural history as set forth in

Appellant's previous appeals to this court. In 2008, Appellant pleaded guilty

to two counts of murder of his estranged girlfriend and her adult son.

Appellant was sentenced to 15 years to life in prison on each count, to be

served consecutively, and he was ordered to pay the costs of prosecution.

Appellant did not file a direct appeal of right following his conviction and

sentence.

       {¶3} In 2015, Appellant filed a pro se motion seeking resentencing on

the grounds that his original sentence was void because the trial court did not

inform him at sentencing that the failure to pay the costs of prosecution

could result in court-ordered community service pursuant to R.C.

2947.23(A)(1)(a). On May 18, 2015, the trial court overruled the motion but

did not give any reasons in support of its denial. Appellant timely appealed.
Adams App. No. 18CA1071                                                          3

      {¶4} In Appellant's first assignment of error, he contended that the

trial court erred by denying his motion for resentencing because at his 2008

sentencing hearing, the court failed to notify him of the possible penalty for

failing to pay the costs of prosecution, specifically that he could be required

to perform community service if he failed to pay the costs. In his second

assignment of error, Appellant contended that he received the ineffective

assistance of counsel because his trial counsel failed to object to the

imposition of costs and to object to the trial court's failure to give the

necessary community service notification. We construed Appellant's motion

for resentencing as an untimely petition for post-conviction relief.

      {¶5} Upon review of Appellant’s petition, we concluded that the trial

court's failure to alert Appellant of the possibility of community service did

not render the sentencing judgment void. We held that the arguments

Appellant raised in his motion for resentencing and the appeal could have

been raised in a direct appeal of his 2008 conviction and sentence. Because

Appellant failed to pursue a direct appeal and because the alleged errors did

not render the sentencing judgment void, we found that Appellant was

precluded from raising them under application of the doctrine of res judicata.

We concluded that the trial court did not abuse its discretion when it denied

Appellant's motion for resentencing and we affirmed the trial court's
Adams App. No. 18CA1071                                                                                4

judgment. See State v. Wolke, 4th Dist. Adams No. 15CA1008, 2016-Ohio-

1134, at ¶ 12 (“Wolke I”).

        {¶6} Appellant subsequently filed a “Verified Motion to Correct

Sentence,” which the court denied. Appellant timely appealed. Upon

review, we determined Appellant was not entitled to the relief requested. To

the extent that Appellant raised non-constitutional claims, the trial court

correctly denied the motion based upon principles of res judicata. To the

extent that Appellant's motion raised constitutional claims, we construed it

to be a time-barred petition for post-conviction relief. Based on this court's

precedent in State v. Craft, 4th Dist. Vinton No. 16CA704, 2017-Ohio-9359,

and our other prior decision, we found the trial court could not address the

claims.1 Furthermore, upon the authority of App.R. 12(A)(1)(a), we

modified the judgment of the trial court to reflect dismissal of the “Verified

Motion to Correct Sentence” insofar as it raised constitutional claims via an

untimely petition for post-conviction relief. We affirmed the judgment of

the trial court, as modified. State v. Wolke, 4th Dist. Adams No. 17CA1048,

2018-Ohio-2119, (“Wolke II”), at ¶ 23.




1
 See also State v. Berecz, 4th Dist. Washington No. 16CA15, 2016-Ohio-11, at ¶ 21; State v. Hamilton, 4th
Dist. Hocking No. 16CA17, 2017-Ohio-1294, at ¶ 20.
Adams App. No. 18CA1071                                                          5

      {¶7} On June 17, 2018, Appellant filed a Motion to Set Aside

Judgment and Plea. On August 9, 2018, the trial court denied the motion.

This timely appeal followed.

                        ASSIGNMENTS OF ERROR

      “I. THE LOWER COURT COMMITTED PREJUDICIAL
      ERROR IN ACCEPTING A TAINTED PLEA.

      II. THE LOWER COURT COMMITTED PREJUDICIAL
      ERROR IN CREATING ITS OWN SENTENCE.”

                         A. STANDARD OF REVIEW

      {¶8} This Court has noted that “[c]ourts may recast irregular motions

into whatever category is necessary to identify and to establish the criteria

by which a motion should be judged.” State v. Waulke, 4th Dist. Ross No.

15CA3051, 2016-Ohio-5018, at ¶ 6, quoting State v. Pippen, 4th Dist. Scioto

No. 14CA3595, 2014–Ohio–4454, ¶ 10, quoting State v. Eldridge, 4th Dist.

Scioto No. 13CA3584, 2014–Ohio–2250, ¶ 5; State v. Sanders, 4th Dist.

Pickaway No. 13CA29, 2014–Ohio–2521, ¶ 6; citing State v. Lett, 7th Dist.

Mahoning No. 09MA131, 2010–Ohio–3167, ¶ 15; State v. Schlee, 117 Ohio

St.3d 153, 2008–Ohio–545, 882 N.E.2d 431, ¶ 12. Petitions for post-

conviction relief typically raise constitutional challenges to convictions and

sentences. We consider Appellant's “Motion to Set Aside Judgment and

Plea” to be a petition for post-conviction relief, pursuant to R.C. 2953.21.
Adams App. No. 18CA1071                                                        6

      {¶9} The post-conviction relief process is a collateral civil attack on a

criminal judgment rather than an appeal of the judgment. State v. Betts, 4th

Dist. Vinton No. 18CA710, 2018-Ohio-2720, at ¶ 11; State v. Calhoun, 86

Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). Post-conviction relief is not a

constitutional right; instead, it is a narrow remedy that gives the petitioner no

more rights than those granted by statute. Id. It is a means to resolve

constitutional claims that cannot be addressed on direct appeal because the

evidence supporting the claims is not contained in the record. State v.

McDougald, 4th Dist. Scioto No. 16CA3736, 2016-Ohio-5080, ¶ 19-20,

citing State v. Knauff, 4th Dist. Adams No. 13CA976, 2014–Ohio–308, ¶ 18.

      {¶10} “[A] trial court's decision granting or denying a post-conviction

relief petition filed pursuant to R.C. 2953.21 should be upheld absent an

abuse of discretion; a reviewing court should not overrule the trial court's

finding on a petition for post-conviction relief that is supported by

competent and credible evidence.” Betts, supra, at ¶ 12, quoting State v.

Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 58. A trial

court abuses its discretion when its decision is unreasonable, arbitrary, or

unconscionable. In re H.V., 138 Ohio St.3d 408, 2014–Ohio–812, 7 N.E.3d

1173, ¶ 8. We are mindful, however, that no court has the authority, within

its discretion, to commit an error of law. State v. Landrum, 4th Dist. Ross
Adams App. No. 18CA1071                                                         7

No. 17CA3607, 2018-Ohio-1280, at ¶ 10; State v. Boone, 2017-Ohio-843,

85 N.E.3d 1227, (10th Dist.), ¶ 9, citing State v. Moncrief, 10th Dist. No.

13AP-391, 2013-Ohio-4571, ¶ 7. See also 2–J Supply Co. Inc. V. Garrett &

Parker, LLC, 4th Dist. Highland No. 13CA29, 2015-Ohio-2757, ¶ 9.

                            B. LEGAL ANALYSIS

                     ASSIGNMENT OF ERROR ONE

      {¶11} Appellant essentially asserts that his plea was not voluntarily

made because he pleaded guilty to two counts of murder and was also

sentenced on the counts while under the influence of state-prescribed

medications and with the assistance of counsel. When a defendant enters a

plea in a criminal case, the plea must be made knowingly, intelligently, and

voluntarily. Failure on any of these points renders enforcement of the plea

unconstitutional under both the United States and Ohio Constitutions. State

v. Cremeans, 4th Dist. Meigs No. 17CA6, 2018-Ohio-537, at ¶ 13. See State

v. Barker, 129 Ohio St.3d 472, 2011–Ohio–4130, 953 N.E.2d 826, ¶ 9; State

v. Lamb, 4th Dist. Highland No. 14CA3, 2014–Ohio–2960, ¶ 12.

      {¶12} The State of Ohio responds that the record does not support

Appellant’s assertion that his plea was tainted or involuntary in any aspect.

The State directs us to the December 12, 2008 plea hearing and asserts that

the trial court strictly complied with Criminal Rule 11(C) in accepting
Adams App. No. 18CA1071                                                         8

defendant’s guilty plea. “Crim.R. 11(C) governs the process that a trial

court must use before accepting a felony plea of guilty or no contest.” State

v. Moore, 4th Dist. Adams No. 13CA965, at ¶ 14, quoting State v. Veney,

120 Ohio St. 3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at ¶ 8.

      {¶13} However, we need not consider Appellant’s argument herein

because res judicata applies to proceedings involving post-conviction relief.

Betts, supra, at ¶14, citing State v. Black, 4th Dist. Ross No. 15CA3509,

2016-Ohio-3104 at ¶ 10, citing State v. Szefcyk, 77 Ohio St.3d 93, 95, 671

N.E.2d 233 (1996). “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, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

“Therefore, ‘any issue that could have been raised on direct appeal and was

not is res judicata and not subject to review in subsequent proceedings.’ ”

Black at ¶ 10, citing State v. Segines, 8th Dist. Cuyahoga No. 99789, 2013–

Ohio–5259, ¶ 8, quoting State v. Saxon, 109 Ohio St.3d 176, 2006–Ohio–

1245, 846 N.E.2d 824, ¶ 16.
Adams App. No. 18CA1071                                                         9

      {¶14} If we were to consider Appellant’s argument hereunder, we

would find no merit. The record reveals that at Appellant’s plea hearing, the

trial court specifically asked Appellant if he was under the influence of

alcohol, or drugs, or prescription medication, or any illegal substances that

would cause him to be confused in any way about the nature of the

proceedings, and Appellant answered “No.” The transcript also reveals the

trial court continued a lengthy colloquy with Appellant about the

constitutional rights he would be waiving by entering a guilty plea and

included advisement of the mandatory maximum penalties of fifteen years to

life incarceration.

      {¶15} For the foregoing reasons, we find no merit to Appellant’s first

assignment of error. As such, it is hereby overruled.

                      ASSIGNMENT OF ERROR TWO

      {¶16} Appellant also asserts that the trial court erred when it imposed

post-release control on his sentences to unclassified felonies. The State of

Ohio concedes that the imposition of post-release control was incorrect in

this case because “an individual sentenced for aggravated murder * * * is not

subject to post-release control because that crime is an unclassified felony to

which the post-release control statute does not apply.” R.C. 2967.28; State v.

Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, at ¶ 36. However, the State
Adams App. No. 18CA1071                                                           10

points out Appellant is raising the issue of post-release control for the first

time in this appeal. The State asserts that one cannot raise new issues or

legal theories for the first time on appeal as they are now barred by res

judicata. We have considered the issue Appellant raises in State v. Lofton,

4th Dist. Pickaway No. 11CA16, 2012-Ohio-2274, and in Moore, supra.

          {¶17} We observed in Lofton that in order to resolve the appeal, we

were required to interpret and apply the statutes related to post-release

control and parole and thus, our review was de novo. Id. at ¶ 6. See State v.

Jenkins, 4th Dist. Scioto No. 10CA2289, 2011-Ohio-6924, at ¶ 9. We noted

at ¶ 8:

          “* * * Lofton was convicted of murder, “which is an
          unclassified felony to which the post-release control statute
          does not apply.” State v. Silguero, 10th Dist. No. 11 AP–274,
          2011–Ohio–6293, ¶ 8, citing State v. Clark, 119 Ohio St.3d
          239, 2008–Ohio3748, 893 N.E.2d 462, ¶ 36; State v. Gripper,
          10th Dist. No. 10AP–1186, 2011–Ohio3656, ¶ 10. “Instead of
          post-release control, when an offender convicted of an
          unclassified felony is released from prison he or she is subject
          to parole.” State v. Evans, 8th Dist. No. 95692, 2011–Ohio–
          2153, ¶ 7, citing Clark at ¶ 36; R.C. 2967.13(A)(1). Therefore,
          the trial court erred when it imposed post-release control. See
          Silguero at ¶ 8. This error does not, however, entitle Lofton to a
          de novo sentencing hearing.”

          {¶18} The Lofton court also applied the reasoning of the Tenth

Appellate District’s decision in Silguero at ¶ 9.

          “In the case sub judice, the trial court included post-release
          control language in appellant's sentence even though appellant
Adams App. No. 18CA1071                                                       11

      was convicted of murder, an unclassified felony. Pursuant to
      [State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio6238, 942
      N.E.2d 332], and also Evans and [State v. Lawrence, 2nd Dist.
      No. 24513, 2011–Ohio–5813], it is clear that this does not
      render appellant's entire sentence void, nor does it require a de
      novo sentencing hearing. Silguero at ¶ 16.”

      {¶19} In Lofton, we also recognized the Fischer court’s holding that

when post-release control is not properly imposed only the post-release

control part of the sentence is void, not the entire sentence.” Lofton, at ¶ 10,

quoting Evans, at ¶ 10. In Lofton, we found the proper remedy is “to remand

the matter for the trial court to correct the sentencing entry to eliminate the

post-release control language.” Id. quoting Evans at ¶ 9. See also Moore,

supra, at ¶ 27.

      {¶20} Accordingly, we find that the trial court erred by imposing post-

release control as part of Appellant’s sentence. Therefore, we affirm, in

part, the trial court’s August 9, 2018 judgment entry. However, we also

remand this matter and instruct the trial court to correct the December 19,

2008 Judgment Entry on sentencing in accordance with this opinion.

                                        JUDGMENT AFFIRMED, IN
                                        PART, AND CAUSE REMANDED.
Adams App. No. 18CA1071                                                        12

                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED, IN PART, AND
CAUSE REMANDED. Costs shall be divided between Appellant and
Appellee.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Adams County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, P.J. & Hess, J.: Concur in Judgment and Opinion.

                                 For the Court,

                          BY: __________________________________
                              Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
