[Cite as State v. Boylen, 2012-Ohio-4730.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. Julie A. Edwards, J.
-vs-
                                                   Case No. 2012CA00064
ADAM BOYLEN

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 1999CR0712


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         October 9, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO,                                ADAM BOYLEN, PRO SE
PROSECUTING ATTORNEY,                           P.O. Box 184
STARK COUNTY, OHIO                              Canal Fulton, Ohio 44612

By: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appelate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2012CA00064                                                                   2

Hoffman, P.J.


           {¶1}    Defendant-appellant Adam Boylen appeals the March 14, 2012 Judgment

Entry entered by the Stark County Court of Common Pleas. Plaintiff-appellee is the

state of Ohio.

                                           STATEMENT OF THE CASE1

           {¶2}    On June 11, 1999, the Stark County Grand Jury indicted appellant, Adam

Boylen, on twelve counts of aggravated robbery, in violation of R.C. 2911.01 (Case

No.1999CR0683). On July 6, 1999, the Stark County Grand Jury issued a second

indictment against Appellant, charging him with five additional counts of aggravated

robbery and one count of grand theft of a motor vehicle, in violation of R.C. 2913.02

(Case No.1999CR0712). Said charges arose from incidents over a three week period,

from May 13, 1999, to June 2, 1999, involving commercial establishments; i.e.,

convenience stores, gas stations, dry cleaners, sub shops.                          On August 19, 1999,

Appellant pled guilty as charged. By judgment entries filed August 20, 1999, the trial

court sentenced Appellant to thirty-two years in Case No.1999CR0683 and eighteen

years and five months in Case No.1999CR0712 for a total aggregate term of fifty years

and five months in prison.

           {¶3}    Appellant appealed his sentences. This court affirmed. See, State v.

Boylen (November 13, 2000), Stark App. No.1999CA00278.

           {¶4}    On October 13, 2001, Appellant filed a motion to withdraw his guilty pleas.

The motion was denied and Appellant filed an appeal with this Court. This Court




1
    A rendition of the facts is not necessary for our disposition of this appeal.
Stark County, Case No. 2012CA00064                                                      3


vacated the denial, and remanded the matter to the trial court for an evidentiary hearing.

See, State v. Boylen, Stark App. No.2002CA00179, 2002-Ohio-6983.

      {¶5}   An evidentiary hearing was held on July 24, 2003. By agreement of the

parties, Appellant withdrew his guilty pleas and entered into a negotiated plea

agreement. By judgment entries filed July 29, 2003, the trial court sentenced Appellant

to thirteen years in prison. The trial court further ordered a mandatory period of post-

release control "up to a maximum of five years."

      {¶6}   Appellant filed an appeal to this Court in State v. Boylen 5th Dist. No.

2003CA00304, 305, 2004-Ohio-1283. This Court affirmed the trial court's sentence per

the negotiated plea agreement.

      {¶7}   On March 2, 2012, the trial court held a hearing for the purpose of

notifying Appellant of the mandatory nature of his post-release control with respect to

Case No. 1999-CR-0712. Via Judgment Entry of March 14, 2012, the trial court entered

sentence. Appellant now appeals, assigning as error:

      {¶8}   "I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT BY REVISITING AND REFORMING A NEGOTIATED GUILTY PLEA

AGREEMENT        THROUGH         A   POST    RELEASE       CONTROL       NOTIFICATION

CORRECTION HEARING."

      {¶9}   Appellant avers post-release control was not part of his understanding of

the negotiated plea agreement, and the trial court was not authorized to revisit or reform

the agreement.

      {¶10} Upon review of the record and the statement of the case, supra, Appellant

was sentenced pursuant to the negotiated plea agreement via Judgment Entry of July
Stark County, Case No. 2012CA00064                                                        4


29, 2003. The sentencing entry ordered a mandatory period of post-release control "up

to a maximum of five years."           Any alleged error with regard to violation or

noncompliance with the negotiated plea agreement by the imposition of post-release

control could have been raised on direct appeal from the July 29, 2003 entry. Having

failed to do so, Appellant's argument is now barred by the doctrine of res judicata. As a

result, post-release control was made part of Appellant's sentence in 2003 with the "up

to five years" language.

        {¶11} Prior to his release from prison, the trial court conducted a hearing to

notify Appellant of the definite term of his mandatory post-release control, in accordance

with State v. Bloomer 122 Ohio St.3d 200, 2009-Ohio2462 and State v. Simpkins 117

Ohio St.3d 420, 2008-Ohio-1197.

        {¶12} In State v. Aleshire, Fifth Dist. No. 2011-CA-73, 2012-Ohio-16, this Court

held,

        {¶13} "Pursuant to State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, the

scope of the re-sentencing hearing was limited to the proper imposition of post-release

control. In Fischer, the Supreme Court of Ohio held that when a defendant receives a

sentence that does not properly include post-release control, 'that part of the sentence

is void and must be set aside. Neither the Constitution nor common sense commands

anything more.' Fischer at ¶ 26. (Emphasis sic.) Thus, the Supreme Court modified its

earlier decision in Bezak to clarify that 'only the offending portion of the sentence is

subject to review and correction.' Fischer at ¶ 27. Pursuant to Fischer, '[t]he new

sentencing hearing to which an offender is entitled * * * is limited to proper imposition of

post-release control.' Fischer at paragraph two of the syllabus. The Fischer court
Stark County, Case No. 2012CA00064                                                       5


reasoned, 'the post-release-control component of the sentence is fully capable of being

separated from the rest of the sentence as an independent component, and the limited

resentencing must cover only the post-release control.' Id. at ¶ 17. Thus, 'only the

postrelease-control aspect of the sentence * * * is void and * * * must be rectified,' and

'[t]he remainder of the sentence, which the defendant did not successfully challenge,

remains valid under the principles of res judicata.' Id.

       {¶14} "In the case at bar, appellant received an identical sentence to the one

imposed on his original plea with the only exception being the notification of five years

of mandatory post-release control. Under Fisher, all other parts of appellant's sentence

were valid and remained in full force and effect. Thus, appellant cannot demonstrate

prejudice from the trial court's sentencing in the present case. He is in the same position

he would have been in had the trial court held a Fisher hearing to simply advise him of

post-release controls."

       {¶15} Based upon the rationale set forth above, the trial court did not err in

sentencing Appellant.     The sole assignment of error is overruled, and Appellant's

sentence in the Stark County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Edwards, J. concur                            s/ William B. Hoffman _________________
                                              HON. WILLIAM B. HOFFMAN


                                              s/ Sheila G. Farmer __________________
                                              HON. SHEILA G. FARMER


                                              s/ Julie A. Edwards___________________
                                              HON. JULIE A. EDWARDS
Stark County, Case No. 2012CA00064                                                  6


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
ADAM BOYLEN                                :
                                           :
       Defendant-Appellant                 :         Case No. 2012CA00064


       For the reasons stated in our accompanying Opinion, Appellant's sentence in the

Stark County Court of Common Pleas is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
