[Cite as State v. Heard, 2018-Ohio-314.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   C.A. CASE NO. 27454
                                                 :
 v.                                              :   T.C. NO. 07-CR-1256
                                                 :
 DEQUAN N. HEARD                                 :   (Criminal Appeal from
                                                 :    Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                           Rendered on the 26th day of January, 2018.

                                            ...........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

DEQUAN N. HEARD, #70598-061, McDowell Federal Correctional Institute, P. O. Box
1009, Welch, WV 24801
      Defendant-Appellant

                                           .............
                                                                                         -2-



FROELICH, J.

       {¶ 1} Dequan N. Heard appeals from a judgment of the Montgomery County Court

of Common Pleas, which overruled his motion (1) to find that the Parole Board lacks

jurisdiction over him, and (2) to vacate his guilty plea based on a breach of the plea

agreement. For the following reasons, the trial court’s judgment will be affirmed.

                                  I. Procedural History

       {¶ 2} In April 2007, Heard was indicted on five counts: trafficking in crack cocaine,

a felony of the fifth degree (Count One); possession of crack cocaine, a felony of the first

degree (Count Two); possession of criminal tools, a felony of the fifth degree (Count

Three); and two counts of having weapons while under disability, felonies of the third

degree (Counts Four and Five). Counts One and Two included firearm specifications.

Heard moved to suppress the evidence against him, and a hearing was held on the

motion. There is no indication in the record that the trial court ruled on the motion to

suppress.

       {¶ 3} On April 4, 2008, Heard pled guilty to Counts One and Two of the indictment.

In exchange for the pleas, the State dismissed Counts Three, Four, and Five and the

firearm specifications. Heard signed two separate plea forms, one addressing Count

One and another addressing Count Two.

       {¶ 4} A sentencing hearing was held on April 7, 2008, during which the trial court

sentenced Heard to six months in prison on Count One and to three years in prison on

Count Two, to be served concurrently with each other and to a sentence previously

imposed in another case. The court suspended Heard’s driver’s license for one year.

With respect to post-release control, the judgment entry stated: “The Court notifies the
                                                                                        -3-


defendant that, as part of this sentence, the defendant will be supervised by the Parole

Board for a period of FIVE years Post-Release Control after the defendant’s release from

imprisonment, if the Parole Board determines that a period of Post Release Control is

necessary for the defendant.” (Emphasis in original.)

       {¶ 5} The judgment entry and the plea forms were filed on April 9, 2008.

       {¶ 6} On April 24, 2008, the trial court filed an “amended termination entry,” which

added an order that Heard pay extradition costs. Heard did not appeal from either the

April 9 or April 24, 2008 judgment entry.

       {¶ 7} On July 12, 2010, Heard was brought before the trial court for resentencing,

pursuant to R.C. 2929.191. The following day, the trial court filed a new termination entry

(nunc pro tunc April 9, 2008). The portion of judgment entry addressing post-release

control read:

                Pursuant to ORC 2929.191, the defendant was brought before the

       court on July 12, 2010, at which time the Court notifies the defendant that,

       as part of this sentence, on Count 1: Trafficking in Cocaine (less than 1

       gram) (CRACK FORM) 2925.03(A)(1) F5 the defendant may, if the Parole

       Board determines that a period of Post Release Control is necessary for the

       defendant, be supervised by the Parole Board for a period of three (3) years

       Post-Release Control after the defendant’s release from imprisonment.

       Additionally, the Court notifies the defendant that, as part of this sentence,

       on Count 2: Possession of Cocaine (25 grams but less than 100 grams

       – crack form) 2925.11(A) F1 the defendant will be supervised by the

       Parole Board for a period of five (5) years Post-Release Control after the
                                                                                        -4-


        defendant’s release from imprisonment.

                ON JULY 12, 2010, A COPY OF THIS ENTRY WAS PROVIDED TO

        THE DEFENDANT.

(Emphasis in original.) Heard did not appeal from the July 13, 2010 judgment entry.

        {¶ 8} According to the Ohio Department of Rehabilitation and Correction’s website,

on August 23, 2010, Heard completed his prison sentence and began his five years of

post-release control. (Heard had 223 days of jail time credit.)

        {¶ 9} On April 29, 2013, Heard filed a motion to find the judgment void in part and

to withdraw his guilty plea. He claimed that the judgment entry failed to comply with

Crim.R. 32(C), to notify him of the consequences of the failure to pay court costs, and to

properly impose post-release control. He sought to withdraw his pleas on the ground

that the court had failed to explain allied offenses of similar import and post-release

control. The trial court overruled the motion on May 22, 2013. Heard did not appeal the

trial court’s ruling.

        {¶ 10} In January 2014, Heard filed a motion to expedite an underlying parole

violation. The motion suggested that Heard was serving a federal sentence, and it was

unclear what relief Heard was seeking. The trial court denied the motion, and Heard did

not appeal.

        {¶ 11} On January 26, 2017, Heard filed a motion seeking a finding that the “Parole

Board does not have jurisdiction over the Defendant.” Heard also sought to withdraw his

plea due to an alleged breach of the plea agreement. The motion to withdraw his plea

asserted that he had only pled to Count Two, not to Count One, and that the trial court

did not properly explain that the five years of post-release control on Count Two was
                                                                                        -5-


mandatory and that the post-release control on Count One was for “up to three” years,

not for three years. Heard asked the trial court to void his post-release control or to

vacate his conviction based on the breach of the plea agreement.

       {¶ 12} On January 31, 2017, the trial court overruled Heard’s January 26 motion.

The trial court’s decision reads:

              Defendant’s first motion is to find that the parole board does not have

       jurisdiction over the Defendant because the Defendant was not properly

       notified about post release control. The court has reviewed the pleas and

       the termination entries in this case. The court finds that Defendant was

       properly notified about post release control. The Termination Entry filed

       July 13, 2010 clearly sets forth notice with respect to both counts in regard

       to the issue of post release control.

              The Defendant’s second motion is to vacate the guilty plea based on

       a breach of the plea agreement. The court has reviewed the pleas made

       in 2008, some eight years ago. The pleas are signed by the Defendant.

       The court finds as a factual matter that there was no breach of the plea

       agreement.     Defendant plead [sic] guilty to two counts, various other

       counts were nollied/dismissed.

              Defendant filed a post-sentence motion about three years ago. The

       court entered a decision on that motion on May 22, 2013. At that time, the

       Defendant did not raise any claim that a plea agreement was breached.

       The court finds this issue is not timely raised. Further, the principle of res

       judicata applies. Defendant’s second motion is OVERRULED.
                                                                                          -6-


              The grounds for Defendant’s motions are not correct as a matter of

       fact. The motions are not timely filed and the issues have been ruled upon

       previously or not raised previously. Defendant’s motions are not well taken

       and are hereby OVERRULED.

       {¶ 13} Heard, pro se, appeals from the trial court’s January 31, 2017 judgment,

raising two assignments of error.

                              II. Breach of Plea Agreement

       {¶ 14} Heard’s first assignment of error states:

       The trial court erred as a matter of fact and law, in finding that no breach of

       the terms of the plea agreement had occurred when the Appellant was

       convicted of two counts and not just Count Two as agreed in the plea

       agreement.

       {¶ 15} Plea agreements are contractual in nature and are subject to contract law

principles. Smith v. Ohio Adult Parole Authority, 2d Dist. Champaign No. 2009 CA 22,

2010-Ohio-1131, ¶ 36; State v. Dillon, 2d Dist. Darke No. 05 CA 1674, 2006-Ohio-4931,

¶ 21. If one party breaches the plea agreement, the remedies for the breach include the

traditional contractual remedies of rescission and specific performance.            State v.

Johnson, 2d Dist. Greene No. 06 CA 43, 2007-Ohio-1743, ¶ 20, citing Santobello v. New

York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

       {¶ 16} At the outset, Heard did not file a direct appeal of his conviction, and the

record does not contain a transcript of the plea hearing. If the trial court had convicted

Heard of Counts One and Two in violation of the plea agreement, Heard should have

raised that issue on direct appeal.
                                                                                         -7-


       {¶ 17} Regardless, the record reflects that Heard signed two plea forms on April 4,

2008; Heard pled guilty to Count One on one form, and he pled guilty to Count Two on

the other. Both forms indicated that Counts Three, Four, and Five would be dismissed,

along with the firearm specifications. Nothing in the record supports Heard’s contention

that he agreed to plead only to Count Two.

       {¶ 18} Heard’s first assignment of error is overruled.

                        III. Imposition of Post-Release Control

       {¶ 19} Heard’s second assignment of error states:

       The trial court erred as a matter of fact and law, in finding that it properly

       imposed (3) three years PRC on Count One for a felony of the fifth degree

       instead of up to 3 years PRC.

       {¶ 20} “Post-release control” involves a period of supervision by the Adult Parole

Authority after an offender’s release from prison that includes one or more post-release

control sanctions imposed under R.C. 2967.28. R.C. 2967.01(N). Post-release control

is mandatory for some offenses and is imposed at the discretion of the Parole Board for

others, depending on the nature and degree of the offense. R.C. 2967.28(B) and (C).

With limited exceptions, post-release control for a fifth-degree felony is discretionary and

may be imposed for a period up to three years. R.C. 2967.28(C); State v. Ramey, 2d

Dist. Montgomery No. 24944, 2012-Ohio-3978, ¶ 9.

       {¶ 21} If the defendant has committed an offense subject to post-release control

under R.C. 2967.28, the trial court must notify the defendant at sentencing of the post-

release control requirement and the consequences if the defendant violates post-release

control. R.C. 2929.19; State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d
                                                                                            -8-


718, ¶ 18. The Ohio Supreme Court has held that when a judge fails to impose the

required post-release control as part of a defendant’s sentence, “that part of the sentence

is void and must be set aside.” (Emphasis in original.) State v. Fischer, 128 Ohio St.3d

92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26; see also State v. Holdcroft, 137 Ohio St.3d

526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 7. The improper post-release control sanction

“may be reviewed at any time, on direct appeal or by collateral attack,” Fischer at ¶ 27,

but “res judicata still applies to other aspects of the merits of a conviction, including the

determination of guilt and the lawful elements of the ensuing sentence,” id. at ¶ 40.

       {¶ 22} With respect to Count One, a fifth-degree felony, Heard was subject to a

discretionary period of post-release control of up to three years. R.C. 2967.28(C). In

July 2010, while Heard remained incarcerated, he was brought back for resentencing to

correct the imposition of post-release control.     The trial court’s July 13, 2010 judgment

entry imposed post-release control on Count One as follows: “[T]he defendant may, if the

Parole Board determines that a period of Post Release Control is necessary for the

defendant, be supervised by the Parole Board for a period of three (3) years Post-Release

Control after the defendant’s release from imprisonment.” (Emphasis in original.) The

trial court imposed a mandatory term of five years of post-release control for Count Two,

a first-degree felony.

       {¶ 23} On appeal, Heard contends that, for Count One, the period of post-release

control to which he could be subject, at the discretion of the Parole Board, is up to three

years, not three years as indicated in the trial court’s judgment entry.

       {¶ 24} Initially, the trial court correctly found that Heard’s argument is barred by res

judicata. “Res judicata” means that a final decision has previously been made; it serves
                                                                                          -9-


to preclude a party who had his or her day in court from seeking a second hearing on the

same issue. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶

18; Jones v. Mohler, 2d Dist. Montgomery No. 27105, 2017-Ohio-2683, fn.1. In 2013,

Heard raised in the trial court that the court had not properly imposed three years of post-

release control.   The trial court denied Heard’s motion, and Heard did not appeal.

Heard could not properly raise that issue again. Although res judicata did not initially bar

Heard from challenging the imposition of post-release control, see Fischer, Heard

received a ruling on the voidness issue in 2013.

       {¶ 25} We recognize that, if we were to address Heard’s argument regarding the

imposition of three years of post-release control on Count One, it appears that the trial

court incorrectly informed Heard of his post-release control obligation on that count. In

State v. Ramey, 2d Dist. Montgomery No. 24944, 2012-Ohio-3978, the trial court provided

notification of the terms of post-release control pertaining to each offense (felonious

assault and having weapons while under disability), and we noted that “[t]he problem is

that it got one of them wrong.” Ramey at ¶ 12. We stated, “Although the trial court

correctly specified a mandatory three-year period of post-release control for Felonious

Assault, a second-degree felony, and also correctly specified that post-release control

would be at the discretion of the Ohio Adult Parole Authority for the fifth-degree felony, it

incorrectly specified that the period of post-release control for the fifth-degree felony was

three years, when it is, in fact, up to three years.” Id. This misstatement is similar to the

one apparently made to Heard.

       {¶ 26} Nevertheless, even if we were to find that the trial court erred in 2010 when

it imposed three years of post-release control on Count One, we would still find no error
                                                                                          -10-

in the Parole Board’s jurisdiction over him. As we further noted in Ramey, when multiple

terms of imprisonment are imposed, the trial court should specify the maximum term of

post-release control to which the defendant will be subjected as a result. Ramey at ¶ 10.

See also, e.g., State v. Jones, 2d Dist. Greene No. 2012 CA 8, 2012-Ohio-4446, ¶ 9;

State v. Barber, 2d Dist. Montgomery No. 27267, 2017-Ohio-7338, ¶ 25. Indeed, R.C.

2967.28(F)(4)(c) specifically provides: “If an offender is subject to more than one period

of post-release control, the period of post-release control for all of the sentences shall be

the period of post-release control that expires last, as determined by the parole board or

court. Periods of post-release control shall be served concurrently and shall not be

imposed consecutively to each other.” (Emphasis added.)

       {¶ 27} Heard’s challenge to the Parole Board’s jurisdiction over him ignores the

fact that he is subject to a mandatory term of five years of post-release control for his

possession of crack cocaine conviction, a first-degree felony (Count Two).              R.C.

2967.28(B). Thus, regardless of whether post-release control was properly imposed for

Count One, Heard remains subject to a mandatory term of five years of post-release

control due to his conviction on Count Two. Accordingly, the trial court properly denied

Heard’s “motion to find that the Parole Board does not have jurisdiction over the

Defendant.”

       {¶ 28} Heard’s second assignment of error is overruled.

                                      IV. Conclusion

       {¶ 29} The trial court’s judgment will be affirmed.

                                         .............


DONOVAN, J. and HALL, J., concur.
                            -11-




Copies mailed to:

Andrew T. French
Dequan N. Heard
Hon. Timothy N. O’Connell
