[Cite as State v. Butler, 2014-Ohio-2758.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
DERRICK L. BUTLER                            :       Case No. 14CA01
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2012CR0283H




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 20, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN C. NIEFT                                        DERRICK L. BUTLER, Pro Se
38 South Park Street                                 Inmate No. 632-613
Mansfield, OH 44902                                  Marion Correctional Institution
                                                     P.O. Box 57
                                                     Marion, OH 43301
Richland County, Case No. 14CA01                                                        2

Farmer, P.J.

       {¶1}    On October 17, 2012, appellant, Derrick Butler, pled guilty to one count of

conspiracy in violation of R.C. 2923.01, two counts of aiding and abetting aggravated

burglary in violation of R.C. 2911.11, one count of aiding and abetting aggravated

robbery in violation of R.C. 2911.01, one count of aiding and abetting kidnapping in

violation of R.C. 2905.01, one count of obstructing justice in violation of R.C. 2921.32,

and one count of tampering with evidence in violation of R.C. 2921.12. By sentencing

entry filed October 18, 2012, the trial court sentenced appellant to an aggregate term of

six years in prison. Appellant did not file an appeal.

       {¶2}    On December 9, 2013, appellant filed a motion for allied offense

determination, claiming the trial court failed to issue a determination on the issue, and

failed to inform him of any consequences of violating post-release control. By judgment

entry filed December 23, 2013, the trial court denied the motion.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶4}    "WHETHER THE FAILURE TO PROPERLY NOTIFY APPELLANT THAT

A VIOLATION OF A POSTRELEASE CONTROL SANCTION WOULD RESULT IN A

NEW PRISON TERM OF UP TO NINE MONTHS IN DURATION, O.R.C. §

2943.032(E), RENDERS THAT PORTION OF THE SENTENCE A NULLITY AND

VOID. SEE: STATE V. BAILEY, 2008 WL 4598753, 2008 OHIO 5357; AND, O.R.C. §

2929.19(B)(3)(e)."
Richland County, Case No. 14CA01                                                              3


                                                II

        {¶5}    "WHETHER A TRIAL COURT'S DISREGARD FOR THE 'STATUTORY

REQUIREMENTS' OF: O.R.C. § 2941.25(A) IMPLICATES DUE PROCESS AND

RENDERS THE RESULTING JUDGMENT VOID AB INITIO. SEE: BROWN V. OHIO,

432 U.S. 161, 165."

        {¶6}    This case comes to us on the accelerated calendar. App.R. 11.1, which

governs accelerated calendar cases, states the following:



                (E) Determination and judgment on appeal

                The appeal will be determined as provided by App.R. 11.1. It shall

        be sufficient compliance with App. R. 12(A) for the statement of the reason

        for the court’s decision as to each error to be in brief and conclusionary

        form.

                The decision may be by judgment entry in which case it will not be

        published in any form.



        {¶7}    This appeal shall be considered in accordance with the aforementioned

rule.

                                                I

        {¶8}    Appellant claims the trial court erred in failing to inform him that a violation

of a post-release control sanction would result in a new prison sentence of up to nine

months pursuant to R.C. 2943.032. We disagree.

        {¶9}    R.C. 2943.032 states the following:
Richland County, Case No. 14CA01                                                        4




               Prior to accepting a guilty plea or a plea of no contest to an

       indictment, information, or complaint that charges a felony, the court shall

       inform the defendant personally that, if the defendant pleads guilty or no

       contest to the felony so charged or any other felony, if the court imposes a

       prison term upon the defendant for the felony, and if the offender violates

       the conditions of a post-release control sanction imposed by the parole

       board upon the completion of the stated prison term, the parole board may

       impose upon the offender a residential sanction that includes a new prison

       term of up to nine months.



       {¶10} During the plea colloquy between the trial court and appellant on October

17, 2012, the trial court informed appellant of the following (T. at 12-13):



               THE COURT: Okay.          Before we go any further, there's two

       concepts that you must understand so that we can talk about punishment

       realistically.   One of them is post-release control.      The other one is

       community control.***

               Now, post-release control is a real kick. It's a real kick. You can go

       to prison and do every minute of your sentence and then be placed on

       post-release control. If you violate post-release control rules, you can go

       back to do up to one half the time you've already done.
Richland County, Case No. 14CA01                                                         5


              Using an example that's going to be very important here is this

       gentleman here that's pleading guilty to felonies and we agreed to a six

       year sentence, but he's got five years post-release control. Once he's

       completed that six year sentence, he's going to be on post-release control

       for five years. And if he violates post-release control rules, he can go

       back to the institution to do up to three more years.

              How it's ordinarily done, a person on PRC violates the rules, gets a

       penalty, and goes back to prison one, two, three, four, maybe up to nine

       months. They'll get out again, violate again, go back again.



       {¶11} Appellant said he understood the concept of post-release control. T. at

14. Prior to accepting appellant's guilty pleas, the trial court informed him that he would

be subject to mandatory five years post-release control.        T. at 16.   The trial court

informed him again during sentencing. T. at 21. The sentencing entry filed October 18,

2013 includes the notification of mandatory five years post-release control, and any

violations "could result in additional prison time up to 50% of this sentence."

       {¶12} The trial court clearly informed appellant of the consequences of violating

post-release control, and specifically stated a violator "gets a penalty, and goes back to

prison one, two, three, four, maybe up to nine months."

       {¶13} Assignment of Error I is denied.

                                             II

       {¶14} Appellant claims the trial court erred in failing to make a determination on

the issue of allied offenses. We disagree.
Richland County, Case No. 14CA01                                                        6


      {¶15} Appellant did not file an appeal of his sentence. We find the arguments

herein to be res judicata pursuant to the well-reasoned analysis by this court in State v.

Currie, 5th Dist. Stark No. 2013CA00155, 2013-Ohio-5223. See also, State v. Hickman,

5th Dist. Licking No. 11-CA-134, 2012-Ohio-3050. Res judicata is defined as "[a] valid,

final judgment rendered upon the merits bars all subsequent actions based upon any

claim arising out of the transaction or occurrence that was the subject matter of the

previous action." Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, syllabus.

"The res judicata bar applies to any defense that was raised or could have been raised

in a criminal defendant's prior direct appeal from his conviction and/or sentence. State

v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967)." Currie at ¶ 15.

      {¶16} Assignment of Error II is denied.
Richland County, Case No. 14CA01                                               7


      {¶17} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.




SGF/sg 514
