[Cite as State v. Sanders, 2014-Ohio-1573.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :         OPINION

                 Plaintiff-Appellee,            :
                                                         CASE NO. 2013-P-0087
        - vs -                                  :

PAUL D. SANDERS,                                :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2004 CR
0121.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Paul D. Sanders, pro se, PID: A473235, Trumbull Correctional Institution, P.O. Box
901, Leavittsburg, OH 44430 (Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}      This appeal is from a nunc pro tunc entry of the Portage County Court of

Common Pleas. In the entry, the trial court notified appellant, Paul D. Sanders, that he

would be subject to mandatory post-release control for a five-year period following the

completion of his current prison term. Before this court, appellant attempts to challenge

the validity of other aspects of his criminal sentence, including the finality of the original

sentencing judgment. For the following reasons, we conclude that, in light of the proper
notification of post-release control, all aspects of appellant’s sentence are legally valid

and enforceable against him.

       {¶2}   At the close of a jury trial in September 2004, appellant was found guilty of

aggravated robbery and failure to comply with a police officer’s signal or order. The two

offenses were based upon an incident in which appellant robbed a grocery store while

yielding a BB gun, and then tried to elude the police by engaging in a high-speed chase

through a residential neighborhood. Before a sentence could be imposed for these two

crimes, appellant agreed to a plea bargain regarding a third charge which pertained to a

separate incident at a grocery store. Under the terms of the bargain, he agreed to plead

guilty to the amended charge of robbery.

       {¶3}   A sentencing hearing was held on all three offenses. At the close of that

proceeding, the trial court imposed an aggregate prison term of fifteen years. However,

the court failed to orally inform appellant that he would be subject to a mandatory term

of post-release control after his prison term was over. Furthermore, although the final

sentencing judgment contained a reference to post-release control, it incorrectly stated

that the imposition of post-release control in appellant’s case would be discretionary, not

mandatory.

       {¶4}   Appellant pursued a direct appeal from the final judgment, contesting the

legality of the aggregate sentence. In State v, Sanders, 11th Dist. Portage No. 2004-P-

0094, 2005-Ohio-4778, we upheld the fifteen-year sentence in all respects, holding that

the imposition of consecutive and greater-than-the-minimum prison terms did not result

in a violation of appellant’s constitutional rights. No issue was raised regarding the trial

court’s notification of post-release control.




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       {¶5}   Approximately five years after our decision in the direct appeal, appellant

filed a number of submissions with the trial court, including a petition for postconviction

relief. As part of his arguments, he asserted that his entire sentence must be declared

void due to the trial court’s failure to give oral notification during the sentencing hearing

that he would be subject to mandatory post-release control. After the state had moved

to dismiss the postconviction petition, the trial court rendered a new judgment in which it

did not address the substance of appellant’s “post-release control” argument. Instead,

the court dismissed appellant’s petition on the grounds that it was not filed timely under

R.C. 2953.23.

       {¶6}   Appellant again pursued an appeal to this court. In State v. Sanders, 11th

Dist. Portage No. 2011-P-0088, 2012-Ohio-5025, we reversed the trial court’s judgment

as it pertained to the “post-release control” issue and remanded the case for additional

proceedings. First, our opinion held that, since the failure to provide proper notification

renders the “post-release control” aspect of a sentence contrary to law and, thus, void,

the issue could be raised at any time and was not subject to the usual time limits for a

postconviction petition. Id. at ¶8, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238. Second, this court concluded that, in imposing appellant’s sentence in October

2004, the trial court did not satisfy the statutory requirements for adequate notification of

post-release control either during the sentencing hearing or in the sentencing judgment.

Id. at ¶9-10. Third, we rejected appellant’s assertion that the “notification” error entitled

him to a de novo sentencing hearing; i.e., because the trial court’s error only renders the

“post-release control” part of the sentence null and void, he was only entitled to a new

sentencing hearing on that particular point. Id. at ¶14-15.




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       {¶7}   Upon remand, the trial court scheduled the new sentencing proceeding for

September 23, 2013. Approximately one week before the new hearing, appellant filed

two new submissions: (1) a motion for leave to withdraw his guilty plea; and (2) a motion

for the issuance of a final appealable order. In the latter motion, he argued that a valid

final judgment had never been issued in his criminal case because, in the October 2004

sentencing judgment, the trial court’s reference to his guilty plea on the amended count

was not accompanied by an express finding of guilt in light of the plea.

       {¶8}   One day after the new hearing, the trial court issued a nunc pro tunc entry

concerning appellant’s sentence. In addition to restating that appellant would serve an

aggregate prison term of fifteen years, the entry contains written notification that he will

be subject to five years of mandatory post-release control after his release from prison.

The entry does not refer to either of the two motions appellant had recently filed.

       {¶9}   One week after issuing the nunc pro tunc sentencing entry, the trial court

rendered two additional judgments overruling appellant’s pending motions. However, in

subsequently instituting this appeal, appellant has referred solely to the nunc pro tunc

entry. In his brief, he asserts two assignments of error for review:

       {¶10} “[1.] The trial court abused its discretion and erred to the prejudice of

appellant when it failed to issue a final appealable order prior to the imposition of post-

release control.

       {¶11} “[2.] The trial court abused its discretion, erred to the prejudice of

appellant, and committed plain error when it failed to sentence appellant pursuant to

STATE V. JOHNSON.”

       {¶12} Under his first assignment, appellant argues that his entire sentence must




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be declared void because, notwithstanding the issuance of the nunc pro tunc entry, the

trial court still has not issued a valid final sentencing judgment. Restating an argument

that he raised in one of the motions filed before the new sentencing hearing, appellant

states that the October 2004 sentencing judgment did not constitute a final appealable

order because the trial court failed to make a required finding in regard to his guilty plea

on the robbery charge. Citing Crim.R. 32(C), he contends that a proper final order has

not been rendered in a criminal case unless the judgment states that the court accepted

the guilty plea and made an express finding of guilty.

       {¶13} Initially, it must again be noted that the trial court’s nunc pro tunc entry did

not address the merits of appellant’s motion for the issuance of a final appealable order.

Rather, the trial court rendered a separate judgment on the motion seven days after the

nunc pro tunc entry was issued. Thus, given that this appeal was taken solely from the

nunc pro tunc entry, the merits of the trial court’s denial of the motion are technically not

properly before this court in the context of this appeal. Nevertheless, since appellant’s

“finality” argument raises a jurisdictional challenge which could affect the validity of all

post-judgment proceedings in his case from October 2004 until now, the substance of

the argument will be addressed.

       {¶14} Crim.R. 32(C) delineates a list of requirements for a proper final judgment

in a criminal action. At the time the disputed sentencing judgment in appellant’s case

was issued in October 2004, the rule provided:

       {¶15} “A judgment of conviction shall set forth the plea, the verdict or findings,

and the sentence. If the defendant is found not guilty or for any other reason is entitled

to be discharged, the court shall render judgment accordingly. The judge shall sign the




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judgment and the clerk shall enter it on the journal. A judgment is effective only when

entered on the journal by the clerk.”

       {¶16} In this case, the October 2004 sentencing judgment contained only one

statement regarding the “guilty plea” aspect of appellant’s conviction: “The Court further

finds that the Defendant, Paul A. Sanders, has entered a Written Plea of Guilty to

Amended Count One of the Indictment, ‘Robbery,’ a felony of the second degree, in

violation of R.C. 2911.01(A)(3) * * *.” According to appellant, the mere reference to the

fact that he agreed to the guilty plea was insufficient to comply with the first sentence of

Crim.R. 32(C). He submits that, since the rule’s first sentence states that the judgment

of conviction must “set forth” both the plea and any findings, such a judgment can only

be considered final when it contains a full explanation of the nature of the guilty plea

and whether the plea was accepted by the trial court.

       {¶17} Appellant’s argument directly conflicts with a recent decision of the Ohio

Supreme Court. In State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, the first issue

for review was whether it was necessary for the final sentencing judgment to state the

way in which the defendant was convicted. The original sentencing judgment in Lester

only stated that the defendant had been convicted of various offenses; it did not indicate

whether the conviction was predicated upon a guilty plea, a no-contest plea followed by

a finding of guilt by the trial court, a finding of guilt following a bench trial, or a finding of

guilt made by a jury. In concluding that a sentencing judgment must still be deemed a

final order even if it does not state the “manner” of the conviction, the Lester court held

that not all of the provisions of Crim.R. 32(C) constituted substantive requirements

which must be satisfied before the judgment can be immediately appealable; i.e., some




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of the requirements, such as stating the basis for the conviction, are only matters of

form that do not have any effect upon the finality of the judgment. Id. at ¶12-13. The

Lester court then provided a statement of what specific Crim.R. 32(C) requirements

were considered “substantive” for purposes of finality:

       {¶18} “A judgment of conviction is a final order subject to appeal under R.C.

2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s

signature, and (4) the time stamp indicating the entry upon the journal by the clerk.

(Crim.R. 32(C), explained; * * *.)” Id. at the first paragraph of the syllabus.

       {¶19} Pursuant to Lester, a sentencing judgment is a final appealable order even

if it does not indicate that the defendant’s conviction was based upon a guilty plea. If a

reference to the plea itself is unnecessary for finality, there certainly would be no need

to cite that the trial court accepted the plea or made a finding of guilt in light of the plea.

See State v. Melton, 8th Dist. Cuyahoga No. 96621, 2011-Ohio-5929, ¶14-18. At most,

the acceptance of the plea and a finding of guilt are matter of forms that usually should

be included in a properly-drafted sentencing judgment, but which do not rise to the level

of substantive requirements.

       {¶20} In regard to the lack of a finding of guilt, appellant further argues that this

resulted in a violation of his constitutional right to due process. However, this argument

also directly conflicts with precedent of the Ohio Supreme Court:

       {¶21} “Unlike a plea of no contest, which requires a trial court to make a finding

of guilt, State v. Bird (1998), 81 Ohio St.3d 582, 584, * * *, a plea of guilty requires no

finding or verdict. Kercheval v. United States (1927), 274 U.S. 220, 223, * * * (‘A plea of

guilty differs in purpose and effect from a mere admission or an extrajudicial confession;




                                              7
it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the

court has nothing to do but give judgment and sentence’). See also State v. Bowen

(1977), 52 Ohio St.2d 27, 28, * * *.” State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-

3330, ¶15.

       {¶22} In this case, the transcript of the sentencing hearing demonstrates that the

trial court accepted appellant’s guilty plea after engaging in the necessary Crim.R. 11(C)

colloquy. More importantly, the October 2004 sentencing judgment expressly stated the

“fact” that appellant was convicted of three offenses, including the one amended count

to which he pled guilty. Since no other statements as to the guilty plea were needed in

order to comply with Crim.R. 32(C), the original sentencing judgment was a final order

from which appellant could pursue a proper direct appeal of his conviction. Therefore,

because appellant is not entitled to the issuance of a new final sentencing judgment in

his criminal case, his first assignment lacks merit.

       {¶23} Under his second assignment, appellant challenges the procedure that the

trial court followed upon remand during the new sentencing hearing of September 23,

2013. Specifically, he maintains that the trial court erred in not considering whether the

offenses of aggravated robbery and failure to comply should have merged for purposes

of sentencing.

       {¶24} As noted above, in remanding this case for further proceedings in light of

the lack of proper notification of post-release control, this court emphasized that only the

“post-release control” aspect of the original sentencing judgment was void and subject

to modification. Sanders, 2012-Ohio-5025, at ¶14. Accordingly, the scope of the new

sentencing hearing was limited to the “post-release control” issue. Id. Given our exact




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holding, the trial court did not have the authority to review the “merger” argument during

the new sentencing hearing. Moreover, since appellant could have raised the “merger”

issue during his 2004 direct appeal of his conviction, he is barred under the doctrine of

res judicata from litigating the issue in the context of a re-sentencing proceeding. See

State v. Dukes, 11th Dist. Portage Nos. 2011-P-0098 and 2011-P-0099, 2012-Ohio-

3033, ¶9.

         {¶25} As appellant can no longer contest any aspect of the trial court’s decision

to impose an aggregate fifteen-year sentence, his second assignment is also without

merit.

         {¶26} The judgment of the Portage County Court of Common Pleas is hereby

affirmed.


TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only.




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