[Cite as State v. Alexander, 2014-Ohio-2351.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :   JUDGES:
                                                :
                                                :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                       :   Hon. John W. Wise, J.
                                                :   Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :   Case No. 2013 CA 00151
                                                :
MONDELL ALEXANDER                               :
                                                :
                                                :
       Defendant-Appellant                      :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Stark County Court of
                                                    Common Pleas, Case No. 2010 CR
                                                    1217



JUDGMENT:                                           AFFIRMED IN PART; REVERSED AND
                                                    REMANDED IN PART




DATE OF JUDGMENT ENTRY:                             May 27, 2014




APPEARANCES:

For Plaintiff-Appellee:                             For Defendant-Appellant:

JOHN D. FERRERO                                     MONDELL ALEXANDER, PRO SE
STARK COUNTY PROSECUTOR                             Inmate No. 594-547
                                                    M.C.I.
KATHLEEN O. TATARSKY                                P.O. Box 57
110 Central Plaza South, Suite 510                  Marion, OH 43301
Canton, Ohio 44702-1413
Stark County, Case No. 2013 CA 00151                                                  2

Delaney, J.

       {¶1} Defendant-Appellant Mondell Alexander appeals the July 16, 2013

judgment entry of the Stark County Court of Common Pleas.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} In 1990, Defendant-Appellant Mondell Alexander was convicted of rape, a

first-degree felony. Alexander did not appeal his conviction or sentence. On August 31,

2004, the Alexander stipulated to the trial court’s finding that he be classified as a

sexual predator pursuant to R.C. 2950.09.

       {¶3} On September 17, 2010, the Stark County Grand Jury indicted Alexander

on one count of failure to register a change of address, in violation of R.C.

2950.05(A)(E)(1), and on one count of periodic verification of current address, in

violation of R.C. 2950.06(F). Alexander pleaded not guilty to the charges at his

arraignment.

       {¶4} On October 18, 2010, Alexander appeared before the trial court and

changed his plea to guilty. The Crim.R. 11(C) plea form notified Alexander he was

subject to mandatory post-release control for a period of five years. The trial court

accepted his plea and by judgment entry filed on October 22, 2010, the trial court

sentenced Alexander to a prison term of four years on each count, to be served

concurrently. At the sentencing hearing, the trial court failed to verbally inform

Alexander of the mandatory period of post-release control. The judgment entry,

however, stated that Alexander was ordered to serve a mandatory period of five years

of post-release control on each count, also to be served concurrently. Alexander did not

file a direct appeal of his sentence.
Stark County, Case No. 2013 CA 00151                                                       3


       {¶5} The trial court allowed Alexander a two-week reprieve before he was to

report to prison. During the two-week period, Alexander committed two aggravated

robberies with a firearm. Alexander was indicted by the Stark County Grand Jury on two

counts of aggravated robbery, first-degree felonies in violation of R.C. 2911.01(A)(1).

Alexander pleaded guilty to the charges and the trial court sentenced Alexander to ten

years in prison and notified Alexander he was subject to mandatory post-release control

for five years. Alexander did not file a direct appeal of his sentence. On May 1, 2012, he

filed a Motion for Sentencing and Leave to Withdraw Guilty Plea(s) with the trial court,

arguing the trial court failed to give proper notification of post-release control during his

plea hearing. The trial court denied the motions and Alexander appealed to this Court in

State v. Alexander, 5th Dist. Stark No. 2012CA00115, 2012-Ohio-4843. In Alexander,

we affirmed the judgment of the trial court to deny the motion for sentencing and leave

to withdraw guilty pleas because we found the trial court complied with Crim.R.

11(C)(2)(a) in informing Alexander of his post-release control during his plea hearing.

       {¶6} On July 11, 2013, Alexander filed a Motion for Sentencing and Leave to

Withdraw Guilty Plea arguing the trial court failed to notify him of mandatory post-

release control at his plea hearing. On July 16, 2013, the trial court denied the motion

because it found Alexander signed a Crim.R. 11(C) plea form, which informed

Alexander of the five-year term of mandatory post-release control.

       {¶7} It is from this decision Alexander now appeals.
Stark County, Case No. 2013 CA 00151                                                   4


                             ASSIGNMENTS OF ERROR

      {¶8} Alexander raises three Assignments of Error:

      {¶9} “I. WHETHER A COMPLETE FAILURE TO NOTIFY APPELLANT (AND

THE PLEA COLLOQUY) WHAT A ‘MANDATORY’ (5) FIVE YEAR PERIOD OF

POSTRELEASE CONTROL (INCLUDING THE CONSEQUENCES OF A VIOLATION

OF A POSTRELEASE CONTROL SANCTION) IMPLICATES BOTH: CRIM.R.

11(C)(2)(A); AND THE ‘ORAL PRONOUNCEMENT’ REQUIREMENT OF: O.R.C. §

2929.19(B)(3)(E)     THEREBY         RENDERING          THE      RESULTING         PLEA

UNCONSTITUTIONAL.

      {¶10} “II. WHETHER THE TRIAL COURT’S FAILURE TO ACCORD AN

‘ALLIED OFFENSE DETERMINATION’ PURSUANT TO: O.R.C. § 2941.25, PRIOR TO

SENTENCING IMPLICATES DUE PROCESS AND WHETHER THAT ‘PLAIN ERROR’

WAS     CURED      BY    ORDERING       THE     SENTENCES       TO    BE    RAN     [SIC]

‘CONCURRENTLY’ WITH ONE ANOTHER. SEE: STATE V. COLLINS, 2013 OHIO

3726 (OHIO APP. 8 DIST.), AT: HN6.

      {¶11} “III. WHETHER THE RETROACTIVE APPLICATION OF MEGAN’S LAW,

IN LIEU OF: O.R.C. § 2950. AS IT EXISTED AT THE TIME OF DEFENDANT’S

CONVICTIONS, IMPLICATES THE STATE AND FEDERAL PROHIBITION AGAINST

EX POST FACTO LAWS.”

                                      ANALYSIS

                                           I.

      {¶12} Alexander argues in his first Assignment of Error that the trial court erred

in denying his motion for sentencing and leave to withdraw guilty plea. We agree in part.
Stark County, Case No. 2013 CA 00151                                                  5


                            Motion to Withdraw Guilty Plea

      {¶13} Alexander argues he should be entitled to withdraw his guilty plea

because the trial court failed to verbally inform him at his October 18, 2010 sentencing

hearing of his mandatory five-years post-release control. A trial court’s decision

regarding a motion to withdraw a guilty plea is governed by Crim.R. 32.1. The rule

states, “[a] motion to withdraw a plea of guilty or no contest may be made only before

sentence is imposed; but to correct manifest injustice the court after sentence may set

aside the judgment of conviction and permit the defendant to withdraw his or her plea.”

Alexander has the burden to establish the existence of manifest injustice. Further, an

“undue delay between the occurrence of the alleged cause for withdrawal of a guilty

plea and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the

credibility of the movant and militating against the granting of the motion.” State v.

Hoover, 3rd Dist. Seneca No. 13-13-47, 2014-Ohio-1881, ¶16 quoting State v. Smith,

49 Ohio St.2d 261, 361 N.E.2d 1324 (1977).

      {¶14} “Withdrawal of a guilty plea after sentencing is permitted only in the most

extraordinary cases.” State v. Perkins, 2nd Dist. Montgomery No. 25808, 2014-Ohio-

1863, ¶ 30 quoting State v. Sage, 2nd Dist. Montgomery No. 25453, 2013–Ohio–3048,

at ¶ 16, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). “The

postsentence ‘manifest injustice’ standard is aimed at cases where a defendant pleads

guilty without knowing what his sentence will be, finds out that his sentence is worse

than he had hoped and expected, and then seeks to vacate his plea.” Perkins, at ¶30

quoting State v. Fugate, 2nd Dist. Montgomery No. 21574, 2007-Ohio-26, ¶ 13.

      {¶15} We review the trial court’s denial of a motion to withdraw a guilty plea

under an abuse of discretion standard of review. State v. Pepper, 5th Dist. Ashland No.
Stark County, Case No. 2013 CA 00151                                                      6

13 COA 019, 2014-Ohio-364, ¶31 citing State v. Caraballo, 17 Ohio St.3d 66, 477

N.E.2d 627 (1985). In order to find an abuse of discretion, we must determine the trial

court's decision was unreasonable, arbitrary, or unconscionable and not merely an error

of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140

(1983). “A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion

of the trial court, and the good faith, credibility and weight of the movant's assertions in

support of the motion are matters to be resolved by that court.” State v. Pepper, 2014-

Ohio-364, ¶ 31 quoting State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977),

paragraph two of the syllabus.

       {¶16} We cannot find that manifest injustice occurred by the trial court’s failure to

verbally notify Alexander of post-release control. First, Alexander was notified of the

mandatory five-years of post-release control through the Crim.R. 11(C) plea form.

Alexander signed the plea form. Second, Alexander waited approximately two years to

file his motion to withdraw his guilty plea. We find no abuse of discretion for the trial

court to deny Alexander’s motion to withdraw his guilty plea.

                                  Motion for Sentencing

       {¶17} Alexander also filed a motion for sentencing. As stated above, Alexander

contends and the State concedes the trial court did not verbally inform Alexander that

he was subject to mandatory post-release control as part of his sentence during his

October 18, 2010 sentencing hearing.

       {¶18} Alexander was found guilty of two first-degree felonies, which require a

period of five-years mandatory post-release control. R.C. 2967.28(B)(1). R.C.

2929.19(B)(2)(c) states that at the sentencing hearing, the trial court shall, “[n]otify the
Stark County, Case No. 2013 CA 00151                                                       7


offender that the offender will be supervised under section 2967.28 of the Revised Code

after the offender leaves prison if the offender is being sentenced for a felony of the first

degree * * *.”

       {¶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.

       {¶20} While the trial court did include mandatory post-release control information

in its written sentencing entry, it is uncontested that Alexander was not verbally

informed of these provisions at his sentencing hearing. After July 11, 2006, pursuant to

R.C. 2929.191, the trial court's omission of post-release control information during the

sentencing hearing may be remedied as follows:

       On and after July 11, 2006, a court that wishes to prepare and issue a

       correction to a judgment of conviction of a type described in division (A)(1)

       or (B)(1) of this section shall not issue the correction until after the court

       has conducted a hearing in accordance with this division. Before a court

       holds a hearing pursuant to this division, the court shall provide notice of

       the date, time, place, and purpose of the hearing to the offender who is

       the subject of the hearing, the prosecuting attorney of the county, and the

       department of rehabilitation and correction. The offender has the right to

       be physically present at the hearing, except that, upon the court's own

       motion or the motion of the offender or the prosecuting attorney, the court
Stark County, Case No. 2013 CA 00151                                                     8


       may permit the offender to appear at the hearing by video conferencing

       equipment if available and compatible. An appearance by video

       conferencing equipment pursuant to this division has the same force and

       effect as if the offender were physically present at the hearing. At the

       hearing, the offender and the prosecuting attorney may make a statement

       as to whether the court should issue a correction to the judgment of

       conviction.

R.C. 2929.191(C).

       {¶21} A trial court may correct its omission to inform a defendant about post-

release control sanctions by complying with R.C. 2929.191 and issuing a corrected

sentence. However, in cases like the one before us where no corrected entry is

necessary, only a hearing is required. State v. Freeman, 7th Dist. Mahoning No. 12 MA

112, 2014-Ohio-1013, ¶ 26 citing State v. Adams, 7th Dist. Mahoning No. 11 MA 65,

2012–Ohio–432; State v. Singleton, 124 Ohio St.3d 173, 2009–Ohio–6434, 920 N.E.2d

958.

       {¶22} Because the trial court did not verbally inform Alexander of mandatory

post-release control sanctions at sentencing, his first Assignment of Error has merit in

part. Alexander is entitled to a new limited sentencing hearing during which the court will

explain the mandatory period of post-release control included in his sentence.

Appellant's first Assignment of Error is sustained in part and the matter is remanded to

the trial court for the limited purpose of holding a sentencing hearing to address

Alexander in regards to his post-release control sanctions.
Stark County, Case No. 2013 CA 00151                                                    9


                                            II.

       {¶23} Alexander argues in his second Assignment of Error that the trial court

erred when it did not conduct an allied offense analysis of his convictions for violations

of R.C. 2950.05(A)(E)(1) and R.C. 2950.06(F).

       {¶24} Alexander did not file a direct appeal of his convictions and sentences for

violations of R.C. 2950.05(A)(E)(1) and R.C. 2950.06(F). “In State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus states:

       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. Kelly, 8th Dist. Cuyahoga No. 97673, 2012-Ohio-2930, ¶ 17.

       {¶25} Alexander’s argument regarding allied offenses could have been raised on

direct appeal from the trial court's sentencing entry, and res judicata applies even

though Alexander never pursued a direct appeal. State v. Jones, 5th Dist. Richland No.

12CA22, 2012-Ohio-4957, ¶ 23 citing State v. Barfield, 6th Dist. Nos. L–06–1262, L–

06–1263, 2007–Ohio–1037, ¶ 6.

       {¶26} Alexander’s second Assignment of Error is overruled.
Stark County, Case No. 2013 CA 00151                                                    10


                                             III.

       {¶27} Alexander argues in his third Assignment of Error that the retroactive

application of Megan’s Law to designate Alexander as a sexual predator implicates

state and federal prohibitions against ex post facto law. Alexander was convicted of

rape in 1990. On August 31, 2004, Alexander waived his right to a hearing and

stipulated to a finding that he be classified as a sexual predator.

       {¶28} Alexander did not file a direct appeal of his convictions and sentences, nor

did he directly challenge his classification as a sexual predator. We find that Alexander’s

claims are barred by res judicata.

       {¶29} Even if Alexander’s claim was not barred by res judicata, his argument still

fails as a matter of law. “While there has been some confusion in recent years regarding

the constitutionality of the amended sex offender registration law under the Adam Walsh

Act, see State v. Bodyke, 126 Ohio St.3d 266, 933 N.E.2d 753, 2010–Ohio–2424, the

Ohio Supreme Court has consistently held that the pre-Adam Walsh Act versions of

R.C. Chapter 2950 applicable here ‘are remedial, not punitive, and that retroactive

application of them does not violate the Ohio or United States Constitutions.’ State v.

Lay, 2d Dist. Champaign No.2012–CA–7, 2012–Ohio–4447, ¶ 7; State v. Cook, 83 Ohio

St.3d 404, 700 N.E.2d 570 (1998), paragraph one of the syllabus. The same is true

regarding the numerous challenges invoking the Ex Post Facto Clause as found in the

United States Constitution. See Cook at paragraph two of the syllabus; see also

Smallwood v. State, 12th Dist. Butler No. CA2011–02–021, 2011–Ohio–3910, ¶ 21;

State v. Wilson, 5th Dist. Stark No. 2011 CA 00266, 2012–Ohio–2164, ¶ 9.” State v.

Elder, 12th Dist. Butler No. CA2013-01-008, 2013-Ohio-3574, ¶8.
Stark County, Case No. 2013 CA 00151                                          11


      {¶30} Alexander’s third Assignment of Error is overruled.

                                   CONCLUSION

      {¶31} The judgment of the Stark County Court of Common Pleas is affirmed in

part and reversed and remanded in part to conduct a hearing pursuant to R.C.

2929.191.

By: Delaney, J.,

Hoffman, P.J. and

Wise, J., concur.
