[Cite as State v. Walker, 2017-Ohio-8111.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Earle E. Wise, J.
-vs-
                                                   Case No. 17 COA 016
GARY D. WALKER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 08 CRI 108


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         October 5, 2017



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CHRISTOPHER R. TUNNELL                         GARY D. WALKER, PRO SE
PROSECUTING ATTORNEY                           RICHLAND CORR. INSTITUTION
110 Cottage Street                             1001 Olivesburg Road
Ashland, Ohio 44805                            Mansfield, Ohio 44901
Ashland County, Case No. 17 COA 016                                                    2

Wise, John, J.

      {¶1}    Appellant Gary D. Walker appeals the the May 22, 2017, decision of the

Ashland County Court of Common Pleas denying his Motion to Vacate Judicial Sanction.

      {¶2}    Appellee is the State of Ohio.

      {¶3}    This case comes to us on the accelerated calendar. App.R. 11.1 governs

accelerated-calendar cases and states in pertinent part:

                 (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.

      {¶4}    One of the most important purposes of the accelerated calendar is to enable

an appellate court to render a brief and conclusory decision more quickly than in a case

on the regular calendar where the briefs, facts, and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th

Dist.1983).

      {¶5}    This appeal shall be considered with the foregoing rules in mind.
Ashland County, Case No. 17 COA 016                                                     3


                          STATEMENT OF THE FACTS AND CASE

      {¶6}   On September 9, 2008, appellant entered pleas of guilty to three counts of

complicity to forgery.    Each count was a violation of R.C. §2923.02(A)(2) and

§2913.31(A)(3) and was a felony of the fifth degree.

      {¶7}   On October 6, 2008, the trial court sentenced appellant to three terms of ten

months in prison, to be served concurrently.

      {¶8}   In its Judgment Entry, the trial court further ordered the following:

             It is further ORDERED that [appellant’s] post-release control shall be

      TERMINATED based upon his violations of post-release control. The Court

      FINDS that the Defendant’s time remaining on post-release control is fifty-

      six (56) days, which is less than one year. It is therefore ORDERED that

      the Defendant shall serve an additional prison sentence of one (1) year for

      the violation of his post-release control, pursuant to Ohio Revised Code

      Section 2929.141. It is further ORDERED, pursuant to law that the post-

      release control time shall be served CONSECUTIVELY to the sentence

      imposed above with regards to Counts One, Two, and Three.

      {¶9}   The trial court also advised appellant of the possibility of up to three (3)

years of post-release control upon completion of the prison term.

      {¶10} On September 19, 2011, appellant filed a “Motion to Correct Void

Sentence.” In that motion, appellant noted that he was convicted in the Cuyahoga County

Court of Common Pleas, case number CR-06-480404-A, for a number of offenses, served

a prison term, and was placed on post-release control for one year. Appellant stated that

the Ashland County trial court sentenced him to an additional prison term of one year for
Ashland County, Case No. 17 COA 016                                                       4


his violation of the post-release control imposed by the Cuyahoga County Court of

Common Pleas, in accord with R.C. §2929.141.1 Appellant argued, though, that the

Cuyahoga County sentence was void because the Cuyahoga County Court of Common

Pleas did not properly advise him of the term of post-release control. Specifically,

Appellant stated the Cuyahoga County sentencing entry “omits the notification under R.C.

2929.19(B)(3)(e) * * * to inform appellant that he could face up to six months in prison

(one-half of his originally stated one-year prison term) for violating his post-release

control.”

         {¶11} On October 6, 2011, the Ashland County Court of Common Pleas overruled

appellant’s Motion to Correct Void Sentence.

         {¶12} We note that the original sentencing entry in the instant case is devoid of

any reference to which case the post-release control, and resulting imposition of

sentence, originated from. However, in the judgment entry overruling appellant’s motion,


1   R.C. 2929.141 states:

       (A) Upon the conviction of or plea of guilty to a felony by a person on post-release
control at the time of the commission of the felony, the court may terminate the term of
post-release control, and the court may do either of the following regardless of whether
the sentencing court or another court of this state imposed the original prison term for
which the person is on post-release control:
       (1) In addition to any prison term for the new felony, impose a prison term for the
post-release control violation. The maximum prison term for the violation shall be the
greater of twelve months or the period of post-release control for the earlier felony minus
any time the person has spent under post-release control for the earlier felony. In all
cases, any prison term imposed for the violation shall be reduced by any prison term that
is administratively imposed by the parole board as a post-release control sanction. A
prison term imposed for the violation shall be served consecutively to any prison term
imposed for the new felony. The imposition of a prison term for the post-release control
violation shall terminate the period of post-release control for the earlier felony.
       (2) Impose a sanction under sections 2929.15 to 2929.18 of the Revised Code for
the violation that shall be served concurrently or consecutively, as specified by the court,
with any community control sanctions for the new felony.
Ashland County, Case No. 17 COA 016                                                          5

the trial court acknowledged “[t]he sentence giving rise to a post release control (sic) was

imposed by Judge John Russo of the Cuyahoga County Common Pleas Court in its Case

No. CR-06-480404-A.”

       {¶13} Appellant did not provide the record, including a written transcript of the

sentencing hearing in Cuyahoga County Court of Common Pleas case number CR-06-

480404-A. He attached a photocopy of a certified copy of a sentencing entry in that case

which stated in regard to post-release control: “Defendant advised of PRC for 3 years.”

In that case, appellant pled guilty to one count of failure to comply with police officer order

(F3), one count of trafficking (F4), and one count of attempted felonious assault (F3).

       {¶14} Appellant appealed the trial court’s decision overruling his Motion to Correct

Void Sentence to this Court, wherein he raised the following two Assignments of Error:

       {¶15} “I. THE TRIAL COURT ERRED WHEN IT DENIED MR. WALKER’S

MOTION TO CORRECT VOID SENTENCE AND THUS THE ACCUSED HAS BEEN

DEPRIVED OF HIS RIGHT TO DUE PROCESS IN VIOLATION OF THE 5TH, 6TH, AND

14TH AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES.

       {¶16} “II. THE TRIAL COURT ERRED BY IMPOSING COURT COSTS IN ITS

OCTOBER 6, 2011 JUDGMENT ENTRY, WHEN THE COURT DID NOT DO SO WITH

MR. WALKER PHYSICALLY PRESENT AND FAILED TO INFORM MR. WALKER THAT

FAILURE TO PAY COURT COSTS MAY RESULT IN THE COURT ORDERING HIM TO

PERFORM COMMUNITY SERVICE. STATE V. JOSEPH, 125 OHIO ST.3D 76, 926

N.E.2D 278, 2010-OHIO-954; STATE V. DANSBY, 2009-OHIO-2975.”
Ashland County, Case No. 17 COA 016                                                     6


      {¶17} By Opinion filed March 30, 2012, this Court overruled Appellant’s assigned

errors and affirmed the decision of the trial court. See State v. Walker, Ashland No. 11-

COA-046, 2012-Ohio-1513.

      {¶18} On February 15, 2017, Appellant filed a Motion to Vacate Judicial Sanction.

In said motion, Appellant argued that the trial court should vacate the judicial sanctions

imposed pursuant to R.C. §2929.141(A)(1) because the September 29, 2006, Journal

Entry from the Cuyahoga County Common Pleas Court case did not advise Appellant of

the consequences contained within said statute, which, in turn, prohibited the Ashland

County trial court from imposing those judicial sanctions.

      {¶19} On March 14, 2017, the State filed a Response, wherein it conceded

Appellant’s Motion to Vacate Judicial Sanction.

      {¶20} By Judgment Entry filed May 22, 2017, the trial court denied Appellant’s

motion, finding same was barred by the doctrine of res judicata.

      {¶21} Appellant now appeals, assigning the following errors for review:

                                 ASSIGNMENTS OF ERROR

      {¶22} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S

MOTION TO VACATE JUDICIAL SANCTION.

      {¶23} “II. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS

UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION

BY ADVOCATING ON BEHALF OF THE STATE OF OHIO AND SUA SPONTE RAISING

A RES JUDICATA DEFENSE AFTER THE APPELLEE WAIVED THE DEFENSE.

      {¶24} “III. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS

UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
Ashland County, Case No. 17 COA 016                                                         7

BY SUA SPONTE RAISING A RES JUDICATA DEFENSE IN THE MAY 22, 2017

JUDGMENT ENTRY WITHOUT AFFORDING APPELLANT NOTICE AND AN

OPPORTUNITY TO BE HEARD AND TO PREPARE A RESPONSE TO THE NEWLY

RAISED DEFENSE.”

                                          I., II. III.

       {¶25} In his Three Assignments of Error, Appellant challenges his sentence

imposed in 2008. More specifically, Appellant challenges the imposition of post-release

control.

       {¶26} Appellant cites this Court to State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238, 942 N.E.2d 332, paragraph one of the syllabus, which states:

       {¶27} “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.

       {¶28} Upon review, we find that the arguments raised by Appellant in the instant

appeal are the same as those raised in Appellant’s previous appeal to this Court.

Appellant did not file a motion for reconsideration with this Court or appeal our decision

to the Ohio Supreme Court. We therefore find that Appellant’s repeated challenge is

barred by the doctrine of res judicata. We do not believe that Fischer, supra, intended to

allow defendants to overcome the res judicata doctrine by opening a window of

opportunity for repetitive post-conviction challenges ad infinitum. See State v. Black, 5th

Dist. Richland No. 16 CA 4, 2016-Ohio-5612.
Ashland County, Case No. 17 COA 016                                            8


      {¶29} Appellant's Assignments of Error are overruled.

      {¶30} For the foregoing reasons, the judgment of the Court of Common Pleas,

Ashland County, Ohio, is affirmed.


By: Wise, John, J.

Hoffman, P. J., and

Wise, Earle, J., concurs.

.




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