[Cite as State v. Mayle, 2019-Ohio-2685.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. John W. Wise, P. J.
        Plaintiff-Appellee                         Hon. Craig R. Baldwin, J.
                                                   Hon. Earle E. Wise, Jr., J.
-vs-
                                                   Case No. 18 CA 000032
SHAWN D. MAYLE

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 15 CR 0104


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         June 28, 2019



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellee

JOEL M. BLUE                                   ELIZABETH N. GABA
PROSECUTING ATTORNEY                           123 East Broad Street
JASON R. FARLEY                                Columbus, Ohio 43205
ASSISTANT PROSECUTOR
627 Wheeling Avenue
Cambridge, Ohio 43725
Guernsey County, Case No. 18 CA 000032                                                2

Wise, John, P. J.

      {¶1}    Defendant-Appellant Shawn D. Mayle appeals the October 9, 2018,

decision of Guernsey County Court of Common Pleas denying his motion for judicial

release.

      {¶2}    Plaintiff-Appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

      {¶3}    On April 25, 2016, Appellant Shawn D. Mayle entered into a negotiated plea

agreement with regard to two criminal cases: 15CR78 and 15CR104. Pursuant to the

plea agreement, the two cases were joined for sentencing.

      {¶4}    In 15 CR 78, Appellant pled guilty to and was convicted of one count of

Possession of Cocaine, an F-3, for which he was sentenced to 12 months mandatory

time, and one count of Weapons Under Disability, for which he was sentenced to 36

months non-mandatory time.

      {¶5}    In 15 CR 104, Appellant pled guilty to and was convicted of one count of

Possession of Marijuana, an F-5, and was sentenced to 9 months non-mandatory time.

All time was ordered to run consecutively.

      {¶6}    On April 30, 2018, Appellant filed a pro-se motion for judicial release on

both cases.

      {¶7}    On May 7, 2018, the state of Ohio opposed the motion.

      {¶8}    On May 10, 2018, the trial court held a non-oral administrative review of

Appellant’s motion.

      {¶9}    On May 16, 2018, the trial court denied the motion.
Guernsey County, Case No. 18 CA 000032                                                 3


       {¶10} On September 14, 2018, Appellant, through counsel, filed a second motion

for judicial release on both cases.

       {¶11} On September 18, 2018, the state of Ohio opposed the motion.

       {¶12} On September 27, 2018, the trial court held a non-oral administrative review

of Appellant’s motion.

       {¶13} On October 9, 2018, the trial court denied the motion.

       {¶14} Appellant now appeals, raising the following assignments of error on

appeal:

                                  ASSIGNMENTS OF ERROR

       {¶15} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

AND ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION FOR

JUDICIAL RELEASE. SPECIFIC PERFORMANCE OF THE PLEA AGREEMENT AND

CONTRACT BETWEEN THE JUDGE AND THE APPELLANT SHOULD BE

COMPELLED. THE TRIAL COURT ACTED IN VIOLATION OF CONTRACT LAW AND

APPELLANT'S DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 AND16,

ARTICLE 1 OF THE OHIO CONSTITUTION.

       {¶16} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

AND ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION FOR

JUDICIAL RELEASE. THE JUDGE HAD INTERJECTED HIMSELF INTO THE PLEA

BARGAIN PROCESS, AND APPELLANT AS A RESULT DETRIMENTALLY RELIED ON

THE COURT'S PROMISES.”
Guernsey County, Case No. 18 CA 000032                                                     4


                                               I., II.

       {¶17} In his two assignments of error, Appellant argues that the trial court erred in

denying his motion for judicial release. We disagree.

       {¶18} R.C. §2929.20(B) states that “[o]n the motion of an eligible offender or upon

its own motion, the sentencing court may reduce the eligible offender's aggregated

nonmandatory prison term or terms through a judicial release under this section.”

       {¶19} It is well-established that the denial of a motion for judicial release is not a

final appealable order. See, e.g., State v. Bennett, 5th Dist. Muskingum No. CT2005–

0009, 2006–Ohio–2812, ¶ 15, citing State v. Masko, 7th Dist. Trumbull No. 2004–T0070,

2004–Ohio–5297, ¶ 2. See, also, State v. Rowbotham, 7th Dist. Mahoning No. 12 MA

152, 2013–Ohio–2286, ¶ 1. As the Tenth District Court of Appeals has aptly recognized,

on questions of judicial release, R.C. §2929.20 “confers substantial discretion to the trial

court, but makes no provision for appellate review.” State v. Lawson, 10th Dist. Franklin

No. 02AP–148, 2002–Ohio–3329, ¶ 23.

       {¶20} However, courts have recognized an exception under circumstances where

an Appellant argues that the State breached the terms of the plea agreement during the

judicial release proceedings. Jimenez at ¶ 6, citing State ex rel. Rowe v. McCown, 108

Ohio St.3d 183, 2006-Ohio-548, ¶ 5; see also State v. Unik, 9th Dist. Lorain No.

11CA009996, 2012-Ohio-307, ¶ 6.

       {¶21} Appellant herein is arguing that both the State and the trial court breached

the contract entered into by the parties during sentencing.

       {¶22} Regardless, we find that the doctrine of res judicata bars Appellant from

raising these arguments in the instant appeal as these identical arguments were already
Guernsey County, Case No. 18 CA 000032                                                       5


raised before the trial court in Appellant’s first motion for judicial release, which Appellant

did not appeal. State v. Jennings, Richland App.No. 01CA62, 2001-Ohio-1742.

       {¶23} Accordingly, we find Appellant’s First and Second Assignments of Error not

well-taken and hereby overrule same.

       {¶24} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Guernsey County, Ohio, is hereby affirmed.


By: Wise, John, P. J.

Baldwin, J., and

Wise, Earle, J., concur.




JWW/d 0620
