[Cite as State v. Wells, 2016-Ohio-892.]



                           STATE OF OHIO, JEFFERSON COUNTY
                                   IN THE COURT OF APPEALS
                                           SEVENTH DISTRICT

STATE OF OHIO                                       )
                                                    )
        PLAINTIFF-APPELLEE                          )
                                                    )             CASE NO. 15 JE 7
VS.                                                 )
                                                    )                    OPINION
JOHN WELLS                                          )
                                                    )
        DEFENDANT-APPELLANT                         )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Court of Common
                                                    Pleas of Mahoning County, Ohio
                                                    Case No. 97 CR 163

JUDGMENT:                                           Affirmed in part; Reversed and
                                                    Remanded     in    part   for  Limited
                                                    Resentencing for Post-Release Control
APPEARANCES:
For Plaintiff-Appellee                              Attorney Jane Hanlin
                                                    Jefferson County Prosecutor
                                                    16001 State Route 7
                                                    Steubenville, Ohio 43952

For Defendant-Appellant                             John Wells, Pro Se
                                                    #344-727
                                                    P.O. Box 57
                                                    Marion, Ohio 43302


JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb


                                                    Dated: March 4, 2016
[Cite as State v. Wells, 2016-Ohio-892.]
DeGENARO, J.

        {¶1}     Defendant-Appellant, John Wells, appeals the judgment of the
Jefferson County Court of Common Pleas resentencing him pursuant to this Court's
prior remand limited to the advisement and imposition of post-release control. All of
the assigned errors raised by Wells in this appeal are dismissed as they are barred
from consideration by the doctrine of res judicata except for the assigned error
relative to the imposition of post-release control, which is meritorious. Accordingly,
the case is remanded for the trial court to provide Wells with the proper post-release
control notifications.
        {¶2}     Wells has filed multiple appeals to this Court, with the opinion in the
most recent appeal outlining the pertinent facts regarding his trial and direct appeal:

                 On October 10, 1997, Appellant was indicted on five counts of
        rape of a child under the age of thirteen, in violation of R.C.
        2907.02(A)(1)(b). Two of the counts also contained an allegation that
        Appellant used force or threat of force to accomplish the rape. The
        victims were his three daughters.

                 A jury trial commenced on December 16, 1997 and the following
        day the jury returned verdicts of guilty on all counts. On December 24,
        1997, Appellant was sentenced to two life sentences and three ten-year
        terms of imprisonment, all to be served consecutively. In addition, the
        trial court classified Appellant as a sexually violent predator. He filed a
        direct appeal, and the conviction and sentence were affirmed. State v.
        Wells, 7th Dist. No. 98–JE–3, 2000 WL 309401 (Mar. 22, 2000).

State v. Wells, 7th Dist. No. 14 JE 5, 2014-Ohio-5504, ¶2-3
        {¶3}     On January 22, 2014, Wells filed a document he titled "Motion to Hold a
Hearing and to Correct the Illegal and Void Postrelease Control." The trial court
overruled the motion and he appealed. We held that the trial court "failed to give
Wells the proper notices regarding postrelease control, and that portion of the
sentence dealing with postrelease control is hereby vacated and the case remanded
                                                                            -2-


for a new hearing solely on the issue of postrelease control." Id. ¶15.
       {¶4}   On February 23, 2015 a resentencing hearing was held advising Wells
of post-release control pursuant to our remand. Wells appealed this judgment, but
subsequently filed a motion contending the entry was not a final, appealable order.
We agreed and remanded the case to allow the trial court to enter a sentencing order
that complied with Crim.R. 32 and imposed a term of incarceration that included the
post-release control notice. At the July 23, 2015 resentencing hearing Wells made
several arguments regarding his conviction and sentence that the trial court refused
to consider; the trial court imposed post-release control and issued a judgment entry
on July 28, 2015, to comply with Crim.R. 32.
       {¶5}   Wells asserts five assignments of error:

              The Judgment Entry of Resentencing Journalized by the Trial
       Court March 06, 2015, is not a "Judgment" as Defined by Crim.R.
       32(C), as it fails to Set Forth any of Several Substantive Matters
       Required by Said Rule, Fails to Incorporate the Entire Judgment in a
       Single Document, and Requires Reference to a Separate Document,
       the Original Sentencing Entry, In Order to Attempt to Determine What
       the Entire Judgment is.

              The Trial Court Erred to the Prejudice of the Appellant's Due
       Process Rights by Repeatedly Refusing to Permit the Appellant to
       Present and Argue His Several Objections to the Reimposition of
       Postrelease Control Where Such Objections Went to the Legal Power,
       Authority, and to the Jurisdiction of the Trial Court to Reimpose PRC,
       and to Challenge the Legal Foundations of the Postrelease Control as
       Themselves Being Void and Illegal Under Both State and Federal Law.

              The Trial Court Erred to the Prejudice of the Appellant's Due
       Process Rights by Reimposing PRC and by Failing to Vacate the Illegal
                                                                             -3-


      and Void Sentences and Convictions where the Jury Verdicts Fail to
      Set Forth a Valid, Legal, and Constitutional, Finding of Guilt for any
      offense; and Where the Jury Verdicts Fail to Provide the Trial Court with
      the Legal Power, Authority, or Jurisdiction to Render a Legal and Valid
      Judgment of Conviction, to Impose a Sentnece (sic), and to Impose
      PRC as Part of the Sentence.

             The Trial Court Ered (sic) to the Prejudice of the Appellant's Due
      Process Rights by Reimposing PRC and by Failing to Vacate the Illegal
      and Void Sentences and Convictions where the. Jury Verdicts to the
      "Force Specifications" are Void for Want 'of Subject Matter Jurisdiction;
      for Failing to Set Forth Sufficient Facts to Constitute a Legal WO
      Constitutional Finding of Guilt; for Constructively Amending Counts 4
      and 5, Changing the Name and Nature Thereof; for Constructively
      Violating Ohio's Version of Separation of Powers, where such Defects
      Deprive the Trial Court of the Legal Power, Authority, and/or
      Jurisdiction to Reimpose PRC for Want of a Valid Sentence and
      Judgment Necessary to Support a valid Term of PRC

             The Trial Court Erred to the Prejudice of the Appellant's Due
      Process Rights by Reimposing PRC where the Original Judgment
      Entry, that Was Not Changed, is Not Final as it Sets Forth Two Life
      Sentences that are Void and Illegal for the Trial Court Having Ignored a
      Mandatory Statutory Sentencing Provision When the "Attempted
      Sentences" were "Imposed"; and Setting Forth Two Undefined "Life"
      Terms, and Unconstitutional "Bad Time"

      {¶6}   In the 2014 appeal we remanded the case solely for the trial court to
properly advise and impose post-release control. Yet Wells is not only challenging
the post-release notification, he is attempting to challenge his conviction and
                                                                                -4-


sentence. We rejected his previous attempt to do so:

      Appellant raises other errors unrelated to his arguments on postrelease
      control, but the Ohio Supreme Court has made it very clear that no
      other issues may be raised when making a collateral attack on a
      sentence based on an error in imposing postrelease control. [State v.
      Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332 at ¶31].
      This is because any other alleged errors raised by Appellant regarding
      his sentence could have been raised in his original appeal and are now
      res judicata, State v. Wells, 7th Dist. No. 98–JE–3, 2000 WL 309401
      (Mar. 22, 2000).

Wells, 7th Dist. No. 14 JE 5, 2014-Ohio-5504, ¶14.
      {¶7}   Thus, we will not address any assigned error which is barred by res
judicata. The only issue before us for consideration is whether Wells' post-release
control notification was proper. In our 2014 opinion we held:

      The court's notice in the sentencing entry correctly states that Appellant
      shall be subject to postrelease control by the parole board, but fails to
      state that the length of postrelease control shall be five years. The
      Supreme Court has determined that the notice was insufficient without
      mentioning the length of postrelease control. State v. Bloomer, 122
      Ohio St.3d 200, 2009–Ohio–2462, 909 N.E.2d 1254, ¶ 69. Further, the
      trial court stated at the sentencing hearing that postrelease control
      would be "at least" five years, rather than exactly five years, unless
      reduced by the parole board. (12/24/97 Tr., p. 10.) Appellant cites no
      cases that find error with the words "at least" in this context. One court
      has held that the use of the phrase "at least" is error but does not rise to
      reversible error because it still serves the purpose of putting the
      defendant on notice that, at minimum, there will be five years of
                                                                                 -5-


       postrelease control. State v. Tucker, 8th Dist. No. 95289, 2011–Ohio–
       1368. Nevertheless, R.C. 2967.28(B) states that there "shall be" five
       years of postrelease control rather than "at least" five years, and as the
       state has failed entirely to respond in this matter, use of the phrase "at
       least" in the context of this appeal is error and should be corrected on
       remand.

Wells, 7th Dist. No. 14 JE 5, 2014-Ohio-5504, ¶12.
       {¶8}   On remand the trial court stated in the judgment entry: "Defendant was
advised that upon completion of his prison term the Defendant shall be subject to
further period of supervision being under Post-Release Control for a mandatory five
(5) year period of supervision and as the Parole Board may determine pursuant to
law." However during the hearing, the trial court failed to specifically notify Wells that
the post-release control period was for five years: "Now, upon completion of your
prison term the offender shall be subject to a further period of supervision being Post-
Release Control as the Parole Board may determine pursuant to law."
       {¶9}   A trial court must inform a defendant of post-release control at both the
sentencing hearing and within the sentencing entry. State v. Butler, 7th Dist. No. 10
JE 44, 2011-Ohio-6366, ¶ 6, citing State v. Singleton, 124 Ohio St.3d 173, 2009-
Ohio-6434, 920 N.E.2d 958, ¶ 22. As such, this assigned error is meritorious.
       {¶10} In sum, most of the assignments of error alleged by Wells are barred
from consideration by res judicata. However, the trial court erred with respect to the
post-release control notification. Accordingly, Wells' convictions and sentences are
affirmed. However, the trial court's judgment is reversed, and the case remanded for
                                                                        -6-


a limited resentencing hearing for the proper advisement and imposition of post-
release control.




Donofrio, P. J., concurs.

Robb, J., concurs.
