[Cite as State v. Williams, 2020-Ohio-77.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J.
                          Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 2019 CA 00083
DELBERT L. WILLIAMS                            :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case No.
                                                   2012CR319N

JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            January 13, 2020



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOSEPH C. SNYDER                                   DELBERT L. WILLIAMS
Assistant Prosecuting Attorney                     Pro Se
38 South Park Street                               Southern Ohio Correctional Facility
Mansfield, OH 44902                                P.O. Box 45699
                                                   Lucasville, OH 45699
Richland County, Case No. 2019 CA 00083                                                   2


Gwin, P.J.

       {¶1}   Defendant-appellant Delbert L. Williams [“Williams”] appeals from the July

29, 2019 and the August 9, 2019 Judgment Entries of the Richland County Court of

Common Pleas overruling his motions for a payment plan and for resentencing.

                                  Facts and Procedural History

       {¶2}   In May 2012, Williams was indicted on four counts. Count One and Count

Two charged Williams with Murder under R. C. 2903.02, subsections (A) and (B). Count

Three and Four charged Williams with Tampering with Evidence and Possession of

Criminal Tools. On December 13, 2012, a jury found Williams not guilty of Murder under

subsection (A) but guilty of Murder under subsection (B), as well as guilty on the remaining

charges. He was then sentenced to a combined three years on Counts Three and Four

and fifteen years to life on Count Two, to be served consecutively. In his direct appeal,

this Court denied his assignments of error. State v. Williams, 5th Dist. Richland No

13CA2, 2014-Ohio-868.

       {¶3}   On February 11, 2013, Williams filed a motion requesting a payment plan

be set up for his court costs. That motion was overruled on March 27, 2013. On

November 17, 2016, Williams filed a motion to suspend his court costs and restitution

payments until he was released from prison. On November 23, 2016, that motion was

denied. On July 3, 2019, Williams filed a Motion for Resentencing. On July 22, 2019,

Williams again filed a motion for a payment plan for his court costs and restitution. On

July 29, 2019, the motion for a payment plan was overruled. On August 9, 2019, Williams’

Motion for Resentencing was overruled.
Richland County, Case No. 2019 CA 00083                                                   3


                                       Assignment of Error

       {¶4}   Williams raises three Assignments of Error,

       {¶5}   “I. THE TRIAL COURT ERRED IN NOT IMPOSING POST RELEASE

CONTROL ON ANY FELONY APPELLANT WAS FOUND GUILTY OF AT

SENTENCING, R.C. 2967.28 (B) AND (C).

       {¶6}   “II. THE TRIAL COURT ERRED BY NOT ACKNOWLEDGING THE

MANDATORY TERM IMPOSED TO THE APPELLANT, R.C. 2929.14 (B) (4); R.C.

2929.19 (B)(2)(A) AND (B).

       {¶7}   “III. THE TRIAL COURT ERRED IN REFUSING TO RECONSIDER A

MONTHLY PAYMENT PLAN WITHOUT HOLDING A HEARING TO DETERMINE

APPELLANT INDIGENCE STATUS.”

                                        Pro Se Appellants

       {¶8}   We understand that Williams has filed this appeal pro se. Nevertheless,

“like members of the bar, pro se litigants are required to comply with rules of practice and

procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-

3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11.

We also understand that “an appellate court will ordinarily indulge a pro se litigant where

there is some semblance of compliance with the appellate rules.” State v. Richard, 8th

Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).

       {¶9}   In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001),

the Supreme Court noted, “a reviewing court cannot add matter to the record before it

that was not a part of the trial court's proceedings, and then decide the appeal on the

basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).”
Richland County, Case No. 2019 CA 00083                                                  4


It is also a longstanding rule "that the record cannot be enlarged by factual assertions in

the brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980),

citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d

227(1963). New material and factual assertions contained in any brief in this court may

not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858

N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843

N.E.2d 1202, ¶16. Therefore, we have disregarded facts and documents in Williams’ brief

that are outside of the record.

       {¶10} In the interests of justice, we shall attempt to consider Williams’

assignments of error.

                                                I.

       {¶11} After reviewing Williams’ brief including his contentions, we have interpreted

his First Assignment of Error in the following manner: “The trial court erred by not

sentencing Williams to a term of post release control upon counts 4 and 5, felonies

of the third degree and the fifth degree respectively.” [Appellant’s brief at 6].

       The Doctrine of “Mootness”

       {¶12} “Mootness is a jurisdictional question because the Court ‘is not empowered

to decide moot questions or abstract propositions.” United States v. Alaska S.S. Co., 253

U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808 (1920), quoting California v. San Pablo &

Tulare R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893); Accord, North

Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 92, 30 L.Ed.2d 244(1971). Because

mootness is a jurisdictional question, the question of mootness is one that must be
Richland County, Case No. 2019 CA 00083                                                     5


addressed even if the parties do not raise it. North Carolina v. Rice, 404 U.S. at 246, 92

S.Ct. 92, 30 L.Ed.2d 244.

       {¶13} Ohio courts have long exercised judicial restraint in cases that are not actual

controversies. Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371, 372(1970). No

actual controversy exists where a case has been rendered moot by an outside event. “It

is not the duty of the court to answer moot questions, and when, pending proceedings in

error in this court, an event occurs without the fault of either party, which renders it

impossible for the court to grant any relief, it will dismiss the petition in error.” Miner v.

Witt, 82 Ohio St. 237, 92 N.E. 21(1910), syllabus; Tschantz v. Ferguson, 57 Ohio St.3d

131, 133, 566 N.E.2d 655(1991).

       {¶14} In Bradley v. Ohio Dept. of Job and Family Services our brethren from the

Tenth Appellate District observed,

              “The doctrine of mootness is rooted in the ‘case’ or ‘controversy’

       language of Section 2, Article III of the United States Constitution and in the

       general notion of judicial restraint.” James A. Keller, Inc. v. Flaherty (1991),

       74 Ohio App.3d 788, 791, 600 N.E.2d 736.                “While Ohio has no

       constitutional counterpart to Section 2, Article III, the courts of Ohio have

       long recognized that a court cannot entertain jurisdiction over a moot

       question.” Id. “It has been long and well established that it is the duty of

       every judicial tribunal to decide actual controversies between parties

       legitimately affected by specific facts and to render judgments which can be

       carried into effect. It has become settled judicial responsibility for courts to

       refrain from giving opinions on abstract propositions and to avoid the
Richland County, Case No. 2019 CA 00083                                                    6


       imposition by judgment of premature declarations or advice upon potential

       controversies.” Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 257 N.E.2d

       371. In other words, an issue is moot when it has no practical significance,

       being instead merely hypothetical or academic.

10th Dist. Franklin No. 10AP-567, 2011-Ohio-1388, ¶11; Accord, Boncek v. Stewart, 9th

Dist. Summit No. 21054, 2002-Ohio-5778, ¶10; State v. Lawless, 5th Dist. Ashland Nos.

17-COA-17 & 17-COA-20, 2018-Ohio-1471.              Although the mootness doctrine has

exceptions, the case at bar does not fall into one of the exceptions. See, e.g., In re Appeal

of Suspension of Huffer from Circleville High School, 47 Ohio St.3d 12, 546 N.E.2d

1308(1989), paragraph one of the syllabus (noting the two exceptions to the mootness

doctrine are when “the issues are capable of repetition, yet evading review” or the case

“involves a matter of public or great general interest”).

       {¶15} A court may take judicial notice of mootness. “In fact, ‘an event that causes

a case to be moot may be proved by extrinsic evidence outside the record.’ Pewitt v.

Lorain Correctional Inst., 64 Ohio St.3d 470, 472, 1992-Ohio-91, 597 N.E.2d 92, 94.”

State ex rel. Nelson v. Russo, 89 Ohio St.3d 227, 228, 2000-Ohio-141, 729 N.E.2d

1181(2000). Accord, Miner v. Witt, 82 Ohio St. 237, 239, 92 N.E.2d 21(1910); State v.

Lawless, 5th Dist. Ashland Nos. 17-COA-17 & 17-COA-20, 2018-Ohio-1471, ¶18.

       Post Release Control does not apply to a murder conviction.

       {¶16} In the case at bar, we first note that post-release control does not apply to

murder convictions because murder is an unclassified felony. See, State v. Clark, 119

Ohio St.3d 239, 2008-Ohio-3748, ¶ 36 (aggravated murder is an unclassified felony and

is not subject to post-release control); State v. Silguero, 10th Dist. No. 11AP-274, 2011-
Richland County, Case No. 2019 CA 00083                                                   7


Ohio-6293, ¶ 8 (murder is an unclassified felony to which the post-release control statute

does not apply), citing Clark and State v. Gripper, 10th Dist. No. 10AP-1186, 2011-Ohio-

3656, ¶ 10. If Williams were to be released in the future, he would be paroled rather than

subject to post-release control. See, State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,

893 N.E.2d 462, ¶36.

       Definite sentences must be served before indefinite sentences or a life sentence.

       {¶17} Ohio Adm. Code 5120-2-03(E)(5) provides that a definite sentence will be

served first, prior to an indefinite or life sentence:

               (5) When a person is serving any definite terms of imprisonment

       consecutively to any indefinite or life terms of imprisonment or to any three-

       year terms of actual incarceration imposed pursuant to section 2929.71 of

       the Revised Code or to both, the aggregate of all such three-year terms of

       actual incarceration shall be served first, then the aggregate of the definite

       terms of imprisonment shall be served, and then the indefinite or life terms

       of imprisonment shall be served.

       {¶18} In the case at bar, the trial court sentenced Williams to a mandatory,

indefinite or life sentence of 15 years to life on the murder count. The trial court further

sentenced Williams to a definite sentence of three years on the tampering with evidence

count. The murder count and the tampering counts were to run consecutively, but

concurrent to the 12-month sentence on the possession of criminal tools count. Thus,

the three-year definite sentence concurrent with the 12-month definite sentence would be

served first. Williams was sentenced on December 19, 2012, over seven years ago.

Therefore, William has served the entire three-year definite sentence.
Richland County, Case No. 2019 CA 00083                                                    8


         {¶19} Once a defendant has served the prison term for an offense for which post-

release control applies, the trial court no longer has the authority to resentence the

defendant for the purpose of adding a term of post-release control as a sanction for that

particular offense. State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d

382, paragraph three of the syllabus. See also Hernandez v. Kelly, 108 Ohio St.3d 395,

2006-Ohio-126, 844 N.E.2d 301, ¶ 32; State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-

3250, 868 N.E.2d 961, ¶ 18, overruled on other grounds by State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332; State v. Bloomer, 122 Ohio St.3d 200, 2009-

Ohio-2462, 909 N.E.2d 1254, ¶70; State v. Muff, 5th Dist. Perry No. 10 CA 16, 2010-

Ohio-6466, ¶22. This is true even if the defendant remains incarcerated on other charges.

Holdcroft at ¶ 18.

         {¶20} Accordingly, Williams’ First Assignment of Error is denied because it is

moot.

                                                  II.

         {¶21} After reviewing Williams’ brief including his contentions, we have interpreted

his Second Assignment of Error in the following manner: “The trial court did not

acknowledge that the Appellant was sentenced to a Mandatory term.” [Appellant’s Brief

at 8].

         {¶22} Williams was informed that the murder charged carried a mandatory

sentence. See, Sentencing Entry, filed Dec. 19, 2012 at 2. Further, because Williams

did not raise the issue in his direct appeal, res judicata bars its consideration now. Under

the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who

was represented by counsel from raising and litigating in any proceeding, except an
Richland County, Case No. 2019 CA 00083                                                    9


appeal from that judgment, any defense or any claimed lack of due process that was

raised or could have been raised by the defendant at the trial, which resulted in that

judgment of conviction, or on an appeal from that judgment. State v. Szefcyk, 77 Ohio

St.3d 93, 671 N.E.2d 233(1996), syllabus, approving and following State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104(1967), paragraph nine of the syllabus.

       {¶23} Williams’s Second Assignment of Error is overruled.

                                                     III.

       {¶24} After reviewing Williams’ brief including his contentions, we have interpreted

his Third Assignment of Error in the following manner: “At no time during sentencing did

the court make clear or place on the record that the Defendant- Appellant was able to pay

any financial sanctions imposed by the courts.” [Appellant’s Brief at 10].

       {¶25} On February 11, 2013, Williams filed a motion requesting a payment plan

be set up for his court costs. That motion was overruled on March 27, 2013. On

November 17, 2016, Williams filed a motion to suspend his court costs and restitution

payments until he was released from prison. On November 23, 2016, that motion was

denied.

       {¶26} Williams did not appeal from the trial court’s March 27, 2013 Judgment

Entry or the trial court’s November 23, 2016 Judgment Entry concerning the imposition of

restitution and court costs. Because Williams could have challenged the restitution order

and the order to pay court costs by appealing the trial court’s earlier decisions overruling

his motions, but did not, he is now barred by res judicata from raising alleged errors in the

trial court’s order of restitution or court costs.

       {¶27} Accordingly, Williams’s Third Assignment of Error is overruled.
Richland County, Case No. 2019 CA 00083                                         10


      {¶28} The judgment of the Richland County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
