[Cite as State v. McGuire, 2018-Ohio-4676.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. John W. Wise, P. J.
        Plaintiff-Appellant                      Hon. William B. Hoffman, J.
                                                 Hon. Earle E. Wise, Jr., J.
-vs-
                                                 Case No. 18 CA 10
SHAWN L. MCGUIRE

        Defendant-Appellee                       OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 2000 CR 00313


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       November 19, 2018



APPEARANCES:

For Plaintiff-Appellant                       For Defendant-Appellee

R. KYLE WITT                                  ALLEN VENDER
PROSECUTING ATTORNEY                          ASSISTANT PUBLIC DEFENDER
DARCY T. COOK                                 250 East Broad Street
ASSISTANT PROSECUTOR                          Suite 1400
239 West Main Street, Suite 101               Columbus, Ohio 43215
Lancaster, Ohio 43130
Fairfield County, Case No. 18 CA 10                                                      2

Wise, John, P. J.

      {¶1}   Appellant State of Ohio appeals the decision of the Court of Common Pleas,

Fairfield County, which vacated post-release control sanctions against Appellee Shawn

L. McGuire. The relevant procedural facts leading to this appeal are as follows.

      {¶2}   On December 21, 2000, the Fairfield County Grand Jury indicted Appellee

McGuire on one count of murder (R.C. 2903.02), one count of involuntary manslaughter

(R.C. 2903.04), one count of reckless homicide (R.C. 2903.041), one count of tampering

with evidence (R.C. 2921.12), and one count of aggravated murder (R.C. 2903.01). Each

of the aforesaid counts, with the exception of tampering with evidence, included a three-

year gun specification.

      {¶3}   On June 19, 2001, pursuant to a plea agreement, appellee pled guilty (as

to Count 1) to an amended count of involuntary manslaughter, R.C. 2903.04(A), a felony

of the first degree, with a three-year gun specification, and one count of tampering with

evidence, R.C. 2921.12, a felony of the third degree, as charged in Count 4.

      {¶4}   The trial court thereupon sentenced appellee to nine years in prison on

Count 1, three years in prison for the firearm specification, and four years in prison on

Count 4. The court ordered the terms to run consecutively. However, the court’s

sentencing entry did not impose or mention post-release control (“PRC”).

      {¶5}   In January 2005, appellee attempted to pursue a delayed appeal to this

Court. However, we denied his motion for a delayed appeal via a judgment entry issued

on February 11, 2005. See Docket Entry 65.

      {¶6}   On August 9, 2005, appellee filed a pro se post-conviction petition to “vacate

or set aside judgment of sentence,” therein citing Blakely v. Washington, 542 U.S. 296,
Fairfield County, Case No. 18 CA 10                                                           3

    124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United States v. Booker, 543 U.S. 220, 125

    S.Ct. 738, 160 L.Ed.2d 621 (2005). However, via a judgment entry issued August 29,

    2005, the trial court denied appellant's petition.

          {¶7}   Appellee (then proceeding as the appellant) thereupon filed a pro se appeal

    of the aforesaid ruling to this Court. On March 22, 2006, we affirmed the trial court’s

    decision. See State v. McGuire, 5th Dist. Fairfield No. 05-CA-89, 2006-Ohio-1466.

          {¶8}   On June 5, 2006, appellee, again proceeding pro se, filed a combined

    “petition to reconsider” and “petition to vacate,” citing State v. Foster, 109 Ohio St.3d 1,

    2006–Ohio–856, 845 N.E.2d 470.1

          {¶9}   The trial court denied same via a judgment entry on June 15, 2006.

          {¶10} On July 9, 2008, the trial court’s assignment commissioner issued a notice

    setting the case for a re-sentencing hearing on August 28, 2008. Appellee, with the

    assistance of counsel, filed a memorandum in opposition to resentencing August 27,

    2008, noting inter alia that the 2001 sentence did not include a PRC provision, and

    arguing that res judicata should apply against the State.

          {¶11} The resentencing hearing was then re-scheduled for October 27, 2008. In

    the meantime, appellee’s counsel had withdrawn, but appellee appeared at the hearing

    with court-appointed counsel.

          {¶12} The trial court issued a judgment entry on October 30, 2008, stating as

    follows in pertinent part:




1  In Foster, the Ohio Supreme Court held inter alia that portions of R.C. 2929.14 and
2929.19 were unconstitutional because they required judicial fact-finding before
imposition of a sentence greater than the maximum term authorized by a jury verdict or
admission of the defendant. See Foster at paragraph one of the syllabus.
Fairfield County, Case No. 18 CA 10                                                      4

             The Court further notified the Defendant that post-release control is

      mandatory in this case up to a maximum of 5 years, as well as the

      consequences for violating conditions of post-release control imposed by

      the Parole Board. The Court further notified the Defendant of all the items

      contained in Ohio Revised code 2929.19(B)(3)(c), (d), (e), and (f). The Court

      further notified the Defendant that if a period of supervision by the Parole

      Board is imposed following the Defendant's release from prison and if the

      Defendant violates that supervision, or conditions of post-release control,

      that the Parole Board may impose a prison term as part of the sentence of

      up to one-half of the stated prison term originally imposed upon the

      Defendant. The Defendant is ordered to serve as part of his sentence any

      term of post-release control imposed by the Parole Board and any prison

      term for violation of that post-release control.

      {¶13} Resentencing Entry at 2, emphasis added.

      {¶14} On December 6, 2012, appellee filed a pro se “motion for clarification and/or

for reconsideration,” asking the court to review his fines and costs. The trial court

overruled said motion on January 9, 2013.

      {¶15} On July 20, 2016, while appellee was still in prison, a hearing was held by

ODRC to determine appellee's post-release control. The Adult Parole Authority (“APA”)

directed that appellee’s mandatory PRC would begin on December 7, 2016, that it would

be 1825 days (five years) in duration, and that he was not eligible for a reduction. Notice

of post-release control was also sent to the statutory victim on October 13, 2016.
Fairfield County, Case No. 18 CA 10                                                        5


          {¶16} Appellee was released on December 7, 2016, although he was apparently

    arrested on other charges in May 2017. He was thereafter incarcerated as a county jail

    parolee beginning on December 29, 2017.

          {¶17} On January 29, 2018, appellee filed a motion in the trial court to vacate his

    PRC, claiming that he was not properly put on notice because the aforementioned

    sentencing entry of October 30, 2008 used the wording "mandatory *** up to a maximum

    of 5 years ***."

          {¶18} On February 23, 2018, the State filed a memorandum contra.

          {¶19} On the same day, the trial court issued a judgment entry granting appellee's

    motion to vacate his PRC, finding it had not been properly imposed and “was thus void.”

    Judgment Entry, February 23, 2018, at 1.2

          {¶20} On March 23, 2018, the State of Ohio filed a notice of appeal and a request

    for leave to appeal.3 We granted leave on April 12, 2018. The State herein raises the

    following three Assignments of Error:

          {¶21} “I. THE TRIAL COURT ERRED WHEN IT VACATED APPELLEE'S

    POSTRELEASE CONTROL BECAUSE THE ENTRY PROVIDED PROPER NOTICE BY

    REFERENCING THE STATUTE.

          {¶22} “II. THE TRIAL COURT ERRED WHEN IT VACATED THE POSTRELEASE

    CONTROL PORTION OF APPELLEE'S SENTENCE BECAUSE THIS ENTRY




2   Appellant State of Ohio has failed to include or attach with its brief a copy of the
judgment entry under appeal. See Loc.App.R. 9(A). We have nonetheless reviewed the
original document in the record.
3 See State v. Crawford, 5th Dist. Richland No. 07 CA 8, 2007–Ohio–3516.
Fairfield County, Case No. 18 CA 10                                                        6


INCLUDED ENOUGH INFORMATION TO PUT THE APPELLEE ON NOTICE SO THAT

THE MOTION WAS BARRED BY RES JUDICATA.

      {¶23} “III.   THE    TRIAL    COURT       ERRED        WHEN    IT   VACATED       THE

POSTRELEASE CONTROL PORTION OF APPELLEE'S SENTENCE BECAUSE HE

RECEIVED SUFFICIENT NOTICE, AND THE FACT THAT APPELLEE WAITED UNTIL

AFTER HE WAS RELEASED FROM PRISON TO CHALLENGE HIS NEARLY 10-YEAR

OLD RESENTENCING ENTRY INDICATES BAD FAITH AND HE SHOULD NOT

RECEIVE A BENEFIT BY DELAYING HIS CHALLENGE UNTIL AFTER HE WAS

RELEASED FROM PRISON.”

                                                 I.

      {¶24} In its First Assignment of Error, Appellant State of Ohio contends the trial

court erred in vacating Appellee McGuire’s post-release control sanction, where the 2008

sentencing entry had referenced the pertinent statute. We disagree.

      {¶25} A trial court is required to give notice of post-release control both at the

sentencing hearing and by incorporating it into the sentencing entry. State v. Provens,

5th Dist. Stark No. 2011CA00089, 2011-Ohio-5197, ¶ 13, citing State v. Jordan, 104

Ohio St.3d 21, 2004–Ohio–6085, 817 N.E.2d 864, paragraph one of the syllabus. In

State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, the Ohio Supreme Court held in

pertinent part that “[a] sentence that does not include the statutorily mandated term of

post-release control is void *** and may be reviewed at any time, on direct appeal or by

collateral attack.” Id., at paragraph one of the syllabus.

      {¶26} R.C. 2967.28(B) states in pertinent part as follows: “Each sentence to a

prison term for a felony of the first degree, for a felony of the second degree, for a felony
Fairfield County, Case No. 18 CA 10                                                       7


sex offense, or for a felony of the third degree that is an offense of violence and is not a

felony sex offense shall include a requirement that the offender be subject to a period of

post-release control imposed by the parole board after the offender's release from

imprisonment. *** Unless reduced by the parole board pursuant to division (D) of this

section when authorized under that division, a period of post-release control required by

this division for an offender shall be of one of the following periods: (1) For a felony of

the first degree or for a felony sex offense, five years ***.”

      {¶27} This Court has consistently held that a trial court’s use of the language “up

to” five years of PRC does not properly impose a mandatory term under R.C.

2967.28(B)(1). See State v. Bolden, 5th Dist. Fairfield No. 17-CA-51, 2018-Ohio-2684, ¶

10, citing State v. Massey, 5th Dist. Delaware No. 15 CAA 05 0043, 2015-Ohio-5193, ¶

17 (additional citations omitted).

      {¶28} Nonetheless, the State contends that under the Ohio Supreme Court’s

decision in State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, the

notification in the case sub judice, along with the reference to portions of R.C.

2929.19(B), was sufficient. In Grimes, the Court stated: “We hold that to validly impose

postrelease control when the court orally provides all the required advisements at the

sentencing hearing, the sentencing entry must contain the following information: (1)

whether postrelease control is discretionary or mandatory, (2) the duration of the

postrelease-control period, and (3) a statement to the effect that the Adult Parole

Authority (“APA”) will administer the postrelease control pursuant to R.C. 2967.28 and

that any violation by the offender of the conditions of postrelease control will subject the

offender to the consequences set forth in that statute.” Id. at ¶ 1.
Fairfield County, Case No. 18 CA 10                                                        8

      {¶29} Notably, the original focus in Grimes was the fact that the sentencing entry

in that instance did not properly incorporate a notification that a violation of postrelease

control could result in an APA-imposed prison term of up to one-half of the defendant's

original sentence. See Grimes at ¶ 12. In that vein, the Ohio Supreme Court concluded

“that to validly impose postrelease control, a minimally compliant entry must provide the

APA the information it needs to execute the postrelease-control portion of the sentence.”

Id. at ¶ 13.

      {¶30} However, in Grimes, the sentencing entry at issue included the statement

that the trial court had “further notified the Defendant that ‘Post Release Control’ is

mandatory in this case for three (03) years * * *.” See Grimes at ¶ 2 (bold type and

underlining omitted). In addition, it was undisputed in that case that the trial court had

“properly advised Grimes at the sentencing hearing of his postrelease-control obligations

and the consequences of violating a condition of postrelease control.” Id. Thus, the type

of “up to” language at issue in the case sub judice was not a factor in Grimes.

      {¶31} We also note the Ohio Supreme Court stated the following caveat regarding

Grimes: “Our holding is limited to those cases in which the trial court makes the proper

advisements to the offender at the sentencing hearing. We reach no conclusion as to the

requirements for sentencing entries in cases in which notice at the sentencing hearing

was deficient.” Grimes at ¶ 20 (emphasis added). The appellate record in the case sub

judice does not provide us with a transcript of the October 27, 2008 resentencing of

appellee. “It is an appellant's duty to ensure that the record contains all that is necessary

for the reviewing court to determine the appeal.” Glemaud v. MetroHealth Systems, 8th

Dist. Cuyahoga No. 106148, 2018-Ohio-4024, f.n. 1. Therefore, even if Grimes were
Fairfield County, Case No. 18 CA 10                                                      9


directly on point, because we cannot ascertain exactly what the trial court recited at

appellee’s resentencing hearing in 2008, we cannot be confident that the Grimes holding

is applicable to the case sub judice, as urged by the State.

      {¶32} Accordingly, we find no error by the trial court in vacating appellee’s PRC

as presently asserted by the State. The First Assignment of Error is therefore overruled.

                                               II.

      {¶33} In its Second Assignment of Error, the State of Ohio contends the trial court

erred when it vacated the post-release control portion of appellee's sentence, arguing

the 2008 entry included enough information to put the appellee on notice of PRC, so that

his 2018 motion to vacate PRC was barred by res judicata. We disagree.

      {¶34} As indicated supra, we have stated that a trial court’s notification to a

defendant that post-release control is mandatory “up to a maximum of five (5) years”

constitutes a failure to properly notify such defendant that his post-release control was

mandatory for five years under R.C. 2967.28(B)(1). See State v. Patterson, 5th Dist.

Stark No. 2014CA00220, 2015-Ohio-1714, ¶ 16; State v. Green, 5th Dist. Stark No.

2010CA00198, 2011-Ohio-1636, ¶ 16.

      {¶35} The State nonetheless directs us to the Ohio Supreme Court’s decision in

Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, urging that the issue therein

“was very similar to the issue” in the case sub judice. Brief of Appellant State of Ohio at

9.

      {¶36} In Watkins, the petitioners, twelve persons then in prison for violating the

terms of their PRC, claimed they were entitled to a writ of habeas corpus because “they

[had] failed to receive adequate notice of postrelease control and their sentencing entries
Fairfield County, Case No. 18 CA 10                                                     10


failed to incorporate adequate notice of postrelease control into their sentences.”

Watkins at ¶ 27. The Court, finding that habeas corpus relief would not be afforded,

ultimately stated: “The petitioners' sentencing entries, although they mistakenly included

wording that suggested that imposition of postrelease control was discretionary,

contained sufficient language to authorize the Adult Parole Authority to exercise

postrelease control over the petitioners.” Watkins at ¶ 53.

      {¶37} However, “Watkins and its progeny were writ cases that were decided on

the ground that the petitioners had an adequate remedy at law.” State v. Smith, 1st Dist.

Hamilton No. C-120163, 2012-Ohio-5965, ¶ 17. The subsequent development of case

law on PRC notification issues by the Ohio Supreme Court has “put to rest any question

concerning the applicability of Watkins and its progeny to non-writ cases.” See Smith at

¶ 20. We therefore presently find no basis to deviate from our precedent in Patterson

and Green, supra.

      {¶38} Certainly, we have previously rejected the proposition that the window of

opportunity provided by the Simpkins/Fischer/Billiter line of holdings “* * * was intended

to continue ad infinitum via repetitive post-conviction challenges to [a defendant’s]

sentence.” State v. Black, 5th Dist. Richland No. 16 CA 4, 2016–Ohio–5612, ¶ 15.

Indeed, as indicated in our recitation of the procedural history of this case, appellee did

unsuccessfully challenge his original 2001 sentence in 2005 under United States

Supreme Court’s decisions of Blakely and Booker. He also raised a challenge in 2006,

citing the Ohio Supreme Court’s Foster decision. Finally, he challenged his fines and

costs via a motion to “reconsider” in 2012. However, the “up to” language at issue in this

matter resulted from what appears to be a sua sponte resentencing in 2008 for purposes
Fairfield County, Case No. 18 CA 10                                                        11


of correcting the lack of any PRC notification in the 2001 sentence. Appellee not did not

initiate the 2008 resentencing, and indeed fought it via a memorandum contra. As such,

we are unpersuaded that res judicata must apply against his 2018 motion to vacate PRC.

      {¶39} Appellant's Second Assignment of Error is therefore overruled.

                                                III.

      {¶40} In its Third Assignment of Error, the State of Ohio contends the trial court

erred when it vacated the post-release control portion of appellee's sentence,

maintaining that he has improperly benefitted from delaying his challenge until after he

was released from prison. We disagree.

      {¶41} As an initial matter, we reiterate that appellee was resentenced in 2008.

      {¶42} R.C. 2929.19(B)(2)(c) states as follows, in pertinent part: “*** If a court

imposes a sentence including a prison term of a type described in division (B)(2)(c) of

this section on or after July 11, 2006, the failure of a court to notify the offender pursuant

to division (B)(2)(c) of this section that the offender will be supervised under section

2967.28 of the Revised Code after the offender leaves prison or to include in the

judgment of conviction entered on the journal a statement to that effect does not negate,

limit, or otherwise affect the mandatory period of supervision that is required for the

offender under division (B) of section 2967.28 of the Revised Code. ***.” (Emphasis

added.)

      {¶43} In addition, R.C. 2929.191(C) states, in pertinent part: “On and after July

11, 2006, a court that wishes to prepare and issue a correction to a judgment of

conviction of a type described in division (A)(1) or (B)(1) of this section shall not issue
Fairfield County, Case No. 18 CA 10                                                       12


the correction until after the court has conducted a hearing in accordance with this

division. ***.”

      {¶44} Thus, “[s]ince there is a statutory remedy for sentences imposed after July

11, 2006, any improper postrelease control portions of these sentences are not void.”

State v. Zechar, 7th Dist. Mahoning No. 17 MA 0111, 2018-Ohio-3731, ¶ 9 (additional

citations omitted). But we must also recognize that Am.Sub.H.B. No. 137 amended R.C.

2967.28(B) to provide that, for any sentence imposed on or after July 11, 2006, a trial

court’s failure to inform an offender of mandatory post-release control does not negate

or otherwise affect the imposition of it. State v. Bond, 1st Dist. Hamilton No. C-060611,

2007-Ohio-4194, ¶ 7. Ultimately, however, when a judge has failed to impose statutorily

mandated post-release control after July 11, 2006, the sentence is subject to the

correction procedure outlined in R.C. 2929.191 when an offender has not yet been

released from prison. See State v. Peace, 11th Dist. Portage No. 2017-P-0037, 2018-

Ohio-3742, ¶ 34, citing State v. Hall, 11th Dist. Ashtabula No. 2016-A-0069, 2017-Ohio-

4376, 93 N.E.3d 35, ¶ 11 (emphasis added).

      {¶45} The gist of the State’s argument in the case sub judice is that appellee, in

foregoing a PRC-based challenge to his 2008 resentencing for nearly ten years (and

after his release from prison for the sentence in the present case), was “motivated by

self-serving bad faith to avoid postrelease control.” Brief of Appellant State of Ohio at 11.

      {¶46} “Bad faith” has been defined as a “dishonest purpose, moral obliquity,

conscious wrongdoing, breach of a known duty through some ulterior motive or ill will

partaking of the nature of fraud.” Zieber v. Heffelfinger, 5th Dist. Richland No. 08CA0042,

2009–Ohio–1227, ¶ 49, quoting Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991), 76
Fairfield County, Case No. 18 CA 10                                                     13


Ohio App.3d 448, 454, 602 N.E.2d 363, 367 (additional citations and internal quotations

omitted).

      {¶47} Notwithstanding that appellee spent more than a year on PRC after his

December 2016 prison release before filing his motion to vacate, the State’s position

would force us to speculate dehors the record as to the basis of appellee’s delay, which

might conceivably include a lack of resources and of sophistication in this area of

sentencing law. In any event, “[a]ppellate review is limited to considering errors revealed

in the record.” Village of Somerset v. Shaner, 5th Dist. Perry No. CA-349, 1986 WL 5513.

Ultimately, even if the State could herein factually demonstrate some sort of bad faith

gamesmanship by appellee, the State provides inadequate legal support for the theory

that this would justify further enforcement of a statutorily incorrect PRC sanction, which,

although not necessarily void, can no longer be remedied by the trial court in accordance

with R.C. 2929.191 due to appellee’s release from prison on the underlying offenses.

See Peace, supra.
Fairfield County, Case No. 18 CA 10                                            14


       {¶48} The State’s Third Assignment of Error is therefore overruled.

       {¶49} For the reasons stated in the foregoing, the decision of the Court of

Common Pleas, Fairfield County, is hereby affirmed.


By: Wise, John, P. J.

Hoffman, J., and

Wise, Earle, J., concur.




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