[Cite as State v. Moore, 2013-Ohio-4454.]
                             STATE OF OHIO, BELMONT COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO,                                )
                                              )   CASE NO. 13 BE 7
        PLAINTIFF-APPELLANT                   )
                                              )
        - VS -                                )         OPINION
                                              )
JOHNATHON MOORE,                              )
                                              )
        DEFENDANT-APPELLEE.                   )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from Common Pleas
                                                  Court, Case No. 95 CR 252.

JUDGMENT:                                         Reversed. Judicial Release Vacated.

APPEARANCES:
For Plaintiff-Appellant:                          Attorney Chris Berhalter
                                                  Prosecuting Attorney
                                                  Attorney Daniel P. Fry
                                                  Asst. Prosecuting Attorney
                                                  147-A W. Main Street
                                                  St. Clairsville, OH 43950

For Defendant-Appellee:                           Attorney Joseph Vavra
                                                  132 West Main Street
                                                  P.O. Box 430
                                                  St. Clairsville, OH 43950




JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich


                                                  Dated: September 30, 2013
[Cite as State v. Moore, 2013-Ohio-4454.]
DeGenaro, P.J.
        {¶1}    Appellant, the State of Ohio, appeals an April 23, 2013 judgment of the
Belmont County Court of Common Pleas granting Appellee Johnathon Lee Moore's
motion for early release/shock probation. The State argues that the trial court's decision
to release Moore was contrary to law because the former shock probation statute does
not apply to Moore; and alternatively if it does apply, Moore was ineligible for shock
probation for several reasons. In response, Moore contends first that the trial court's
decision is not a final appealable order; and second, it was within the trial court's
discretion to order his release, especially considering that the trial court cited concerns
about the validity of Moore's 1996 guilty plea as an alternative basis for granting his
motion.
        {¶2}    The former shock probation statute, R.C. 2941.061, applies to Moore's
motion, not the current judicial release statute. Further, the trial court's judgment granting
shock probation and ordering Moore's early release from prison is a final, appealable
order, from which the state's right to appeal is discretionary, not absolute.
        {¶3}    The State's arguments are meritorious. First, the trial court should not have
considered Moore's motion for shock probation since he had already filed a prior motion,
which the court overruled. Second, because Moore committed the offenses with a
firearm, he is not eligible for probation, which is a prerequisite for shock probation
eligibility under former R.C. 2947.061. Finally, the trial court erred by finding Moore's plea
was "constitutionally flawed" and a basis for granting his release; consideration of that
issue was barred by res judicata. Accordingly, the judgment of the trial court is reversed,
and the order granting Moore judicial release is vacated.
                                  Facts and Procedural History
        {¶4}    This matter arises from a criminal case in Belmont County in the mid-
1990's. Moore's actions, having "outraged the community and given rise to a fear of
further lawlessness," were set forth in this court's opinion in Moore's direct appeal:

                On October 5, 1995, [Moore], a seventeen year old juvenile at the
        time, took his father's car without permission. [Moore's] father reported the
        vehicle stolen to the Martins Ferry Police Department, and the vehicle was
                                                                                        -2-


       later spotted by Officers Caprita and Bumba of the Bridgeport Police
       Department. A high speed chase ensued, which culminated with [Moore]
       exiting the vehicle and firing a shotgun at the police cruiser. Officer Bumba
       was hit in the hand causing serious injury. As the officers proceeded to a
       local hospital, appellant continued to discharge the shotgun, injuring Cassie
       Imer, appellant's former girlfriend, and James Carmen, a friend of
       appellant. Shortly thereafter, the police located appellant inside Imer's
       residence holding the barrel of the shotgun to his own head. Eventually
       [Moore] was persuaded by his parents to refrain from taking his own life
       and to surrender the weapon to police.

State v. Moore, 7th Dist. No. 96-BA-21, 1997 WL 567967, *1 (Sept. 5, 1997) (Moore I)
       {¶5}   Moore was bound over for criminal prosecution as an adult and convicted of
four counts of felonious assault, aggravated second-degree felonies (R.C. 2903.11(A)(2)),
each with an accompanying firearm specification (R.C. 2941.141), following a guilty plea.
Moore was sentenced to an aggregate prison term of 35 to 63 years. Moore appealed his
conviction arguing that the juvenile court erred in ordering that he be bound over for trial
as an adult and in permitting an incomplete psychological examination to be conducted.
He did not challenge his plea or sentence. This court affirmed in Moore I, supra.
       {¶6}   Moore later filed a pro-se post-conviction petition with the trial court which,
pertinent to this appeal, asserted trial counsel was ineffective as he allegedly advised
Moore that in exchange for pleading guilty he would be sentenced to concurrent terms.
Moore argued that had he known consecutive sentences would be imposed he would not
have pled guilty. The trial court denied the petition on the merits, finding " 'the defendant
was represented by competent counsel and said counsel represented the defendant
effectively.' " State v. Moore, 7th Dist. No. 99-BA-5, 2000 WL 341117 (Mar. 31, 2000)
(Moore II) (quoting trial court.) On appeal, this court dismissed for lack of jurisdiction,
concluding the post-conviction petition was untimely and neither of the exceptions in R.C.
2953.23(A) applied. Id. at *2-3.
                                                                                        -3-


       {¶7}   Moore filed early release motions in 2002 and 2004, both of which he was
permitted to withdraw before they came for decision. Moore filed a third motion on April
14, 2006, which the State opposed. A hearing was scheduled, but then the judgment
entry setting the hearing was "set aside and held for naught" and the early release motion
was overruled in a June 5, 2006 judgment entry.
       {¶8}   On December 30, 2008, Moore was granted a parole hearing for February
2009, but parole was denied.
       {¶9}   On December 7, 2009, the trial court sua sponte set Moore's early release
for hearing, which was held on December 14, 2009 with Moore present. Testimony was
taken, but ultimately the court stayed decision on the matter. A transcript of this hearing
is not included in the trial court record.
       {¶10} On February 2, 2012, Moore filed another motion for judicial release, citing
R.C. 2929.20. By judgment entry, the trial court ruled:

       The Court finds that the crimes committed occurred prior to the effective date
       of §2929.20, thereby making that section inapplicable.


       The Court further finds that the entry of 6/5/2006 was entered in error.
       Defendant granted an opportunity to withdraw the motion giving rise to the
       entry of 6/5/2006 by docket entry dated no later than 4/1/2012.


       The Court further finds more than 60 days have elapsed since the filing of
       the motion citing ORC 2929.20. Defendant is granted leave to withdraw said
       motion and refile pursuant to ORC 2947.061.

       {¶11} Moore then filed two motions asking the trial court to withdraw his 2012 and
2006 early release motions, which the trial court granted; finding it had entered the 2006
entry overruling Moore's April 14, 2006 early release motion "in error."
       {¶12} On April 4, 2012, Moore filed a motion for shock probation/judicial release,
this time citing R.C. 2947.061(B). Moore asserted he should be released because he
                                                                                                           -4-


had been sufficiently punished for his conduct; had been an exemplary prison inmate; his
behavior and character demonstrated he would respond affirmatively to probationary
terms; and that recidivism would be unlikely.
        {¶13} On May 2, 2012, the State filed a brief in opposition, asserting R.C.
2947.061 did not apply to Moore; and alternatively, assuming it did, Moore was ineligible
due to the nature of his crimes. The State did not provide any evidence to rebut Moore's
                                                                                       1
contention that Moore had an exemplary record while incarcerated.
        {¶14} No hearing was held on the motion.
        {¶15} Nearly one year later, on April 23, 2013, the trial court issued a judgment
granting Moore's motion and ordering his release from prison. This timely appeal
followed the same day, along with a motion for stay, which was opposed by Moore. This
court issued a judgment temporarily sustaining the stay motion, pending further hearing
on the matter. The State filed an amended notice of appeal and request for leave to file
an appeal, along with a supplement to their stay motion on April 30, 2013. After a
hearing, this court granted leave to appeal, granted the stay, and placed the matter on
the expedited calendar.
                                               Applicable Statute
        {¶16} On appeal, the State lists one "question of law for appeal," which is
essentially an assignment of error:
        {¶17} "Whether the Trial Court's decision to release this incarcerated Defendant
under Shock Probation or Judicial Release was contrary to law."
        {¶18} We must first resolve two threshold legal issues before addressing the
merits: 1) whether the old shock probation statute or the current judicial release statute
applies; and 2) whether the trial court's judgment releasing Moore constitutes a final
appealable order. We will begin our analysis with determining the applicable statute,
which in turn will apply to the resolution of both the jurisdictional and merit issues.

1
  Although the State discusses Moore's 2010 prison infractions in its brief, this information is not contained in
the trial court record and cannot be considered on appeal. See, e.g., State v. Gill, 7th Dist. No. 09 MA 71,
2010-Ohio-5525, ¶20.
                                                                                       -5-


       {¶19} Regarding the applicable law, because Moore committed the crimes in 1995
the current judicial release statute, R.C. 2929.20, which became effective via Senate Bill
2 on July 1, 1996, does not appear to apply to him. See State v. Curik, 8th Dist. No.
80254, 2002-Ohio-963, *2 (citing cases). Curik and similar cases rely on State v. Rush,
83 Ohio St.3d 53, 697 N.E.2d 634 (1998), at syllabus, which concluded that sentencing
provisions of Senate Bill 2 apply only to crimes committed on or after its effective date of
July 1, 1996 and, are not to be applied retroactively.
       {¶20} Instead, the former shock probation statute, R.C. 2947.061, applies. In
State Young, 8th Dist. No. 79113, 2001 WL 1671431 (Nov. 29, 2001), for example, the
Eighth District held that "because [the defendant] was sentenced for crimes committed
prior to July 1, 1996, the provisions of R.C. 2929.20 are not applicable to him.
Accordingly, he was not eligible for judicial release pursuant to R.C. 2929.20. Individuals
who committed crimes prior to July 1, 1996, may, however, seek shock probation in
accordance with former R.C. 2947.061." Id. at *3.
       {¶21} Further, in State v. Coffman, 91 Ohio St.3d 125, 742 N.E.2d 644 (2001), the
Ohio Supreme Court held that despite the fact that the General Assembly repealed R.C.
2947.061, and although the provisions of the judicial release statute apply only to
offenses committed after July 1, 1996, that shock probation pursuant to "R.C. 2947.061 is
available to those who, like appellant, committed their crimes prior to this date." Id. at
126.
       {¶22} The State argues that because Moore was sentenced before July 1, 1996,
neither the judicial release statute nor the old shock probation statute applies to him,
citing State v. Romine, 5th Dist. No. CT2001-0047, 2001 WL 1326921 (Oct. 23, 2001). In
Romine, the pro-se appellant filed an early release motion in the trial court and on appeal
asserted, inter alia, that the trial court erred by denying him a pre-sentence report, which
he insisted was necessary for the court to consider his motion. The Fifth District held:

       We find appellant is not eligible for judicial release pursuant to R.C.
       2947.061. This statute was repealed by the Ohio Legislature in Senate Bill
                                                                                        -6-


        2, effective July 1, 1996, and the relief contained in R.C. 2947.061 is no
        longer available. As the State points out, the statute provided a defendant
        shall not file more than one motion pursuant to the statute, and the record
        demonstrates appellant filed such a motion in 1992. R.C. 2929.20, effective
        July 1, 1996, as a portion of Senate Bill 2, applies only to persons
        sentenced to prison after July 1, 1996, see State v. Rush (1998), 83 Ohio
        St.3d 53. Because we find no relief was available to appellant for judicial
        release, we find no error in the court not directing a pre-sentence report be
        prepared.

Id. at *1.
        {¶23} See also State v. Kelly, 5th Dist. No. CT2002-0027, 2003-Ohio-337, ¶11-13
(following Romine, holding that the neither shock probation law nor the judicial release
statute applies to defendants sentenced after July 1, 1996), conflict certified and
discretionary appeal allowed by Ohio Supreme Court but subsequently dismissed without
opinion, 99 Ohio St.3d 1549.
        {¶24} Romine and Kelly are outlying cases we decline to follow for several
reasons. Primarily, they conflict with the Ohio Supreme Court's decision in Coffman;
secondly, both S.B. 2 and Rush provide that the amended sentencing provisions apply to
offenders who committed crimes after July 1, 1996. And arguably the statement in
Romine concerning the inapplicability of the shock probation statute was dicta, since the
Fifth District also found that early release under that statute was not possible because the
defendant had already filed an earlier motion for shock probation. Romine at *1.
        {¶25} Accordingly, pursuant to the language contained in S.B. 2, and the
decisions in Rush, Coffman, and Curic, former R.C. 2947.061 applies to Moore's early
release motion.
                                                                                         -7-


                                           Jurisdiction
       {¶26} Turning now to the jurisdictional issue raised by Moore, we must determine
whether the order from which the State appeals is final and appealable. The Ohio
Supreme Court has held that an order denying shock probation under former R.C.
2947.061 is not final and appealable. Coffman, supra, 91 Ohio St.3d 125. The Third
District has extended Coffman to situations where shock probation is granted. State v.
Reed, 3d Dist. No. 14-05-08, 2005-Ohio-5759.
       {¶27} However, other Districts have concluded that while the state has no
absolute right to appeal the granting of shock probation, "an appellate court may, in its
discretion, grant a motion for leave to appeal an order granting shock probation." State v.
Young, supra, 8th Dist. No. 79113, *2. In Young, the Eighth District explained:

              In light of State v. Coffman (2001), 91 Ohio St.3d 125, we must first
       consider whether the trial court's order granting appellee's motion for super
       shock probation is a final appealable order. In Coffman, the Supreme Court
       of Ohio held that "a trial court's order denying shock probation pursuant to
       former R.C. 2947.061 is never a final appealable order." Id. at the syllabus.
       Significantly, the Ohio Supreme Court also found that former R.C.
       2947.061 made no provision for appellate review and noted that it was "not
       surprising" that "the General Assembly chose to place this decision within
       the plenary discretion of the sentencing court" because "probation has
       always been viewed as a matter that lies within the judgment of the trial
       judge." Id. at 128. Although the holding in Coffman is limited to the denial of
       a motion for shock probation, we consider whether it also applies to an
       order granting a motion for shock probation, as in this case. We conclude
       that it does not apply.
              In State v. Fisher (1988), 35 Ohio St.3d 22, which was decided
       before Coffman, the Ohio Supreme Court held that the State may appeal
       an order granting shock probation. The Supreme Court noted that the right
                                                                                         -8-


       is not absolute, however, and the decision to grant or deny leave to appeal
       in such cases "rests solely within the discretion of the court of appeals." Id.
       at 23. Because the Supreme Court of Ohio had an opportunity in Coffman
       to overrule Fisher but did not do so, it is apparent that the Supreme Court
       has carved out a distinction between orders granting shock probation and
       those denying it. Thus, although a trial court order denying shock probation
       is never a final appealable order, an appellate court may, in its discretion,
       grant a motion for leave to appeal an order granting shock probation.
               Accordingly, after review of the State's motion for leave to appeal
       the trial court's order granting appellee's motion for shock probation, we
       grant the State's motion and proceed to the merits of its appeal.

Young at *2.
       {¶28} We find the analysis of the Eighth District persuasive. Pursuant to Fisher an
order granting shock probation from which the state's right to appeal is discretionary, not
absolute, may be heard by a court of appeals within its discretion. In this case, we
exercise our discretion to hear the State's appeal. Accordingly, Moore's jurisdictional
argument is meritless.
                                          Early Release
       {¶29} Turning to the merits of this appeal, the State contends Moore is ineligible
for shock probation for several reasons. The pertinent section of the former shock
probation statute provided as follows:

               Subject to sections 2951.02 to 2951.09 of the Revised Code and
       notwithstanding the expiration of the term of court during which the
       defendant was sentenced, the trial court, upon the motion of the defendant,
       may suspend the further execution of the defendant's sentence and place
       the defendant on probation upon the terms that the court determines, if the
       defendant was sentenced for an aggravated felony of the first, second, or
       third degree, is not serving a term of actual incarceration, is confined in a
                                                                                             -9-


       state correctional institution, and files the motion at any time after serving
       six months in the custody of the department of rehabilitation and correction.
              A defendant shall not file more than one motion pursuant to this
       division for each sentence imposed upon him, and the court shall deny,
       without hearing, any motion not authorized by this division or prohibited by
       this division. The court shall hear any motion authorized by this division
       within sixty days after it is filed and shall enter its ruling on the motion within
       ten days after the hearing. In ruling on the motion, the court shall consider
       any statement made pursuant to section 2930.17 of the Revised Code by
       the victim of the offense for which sentence was imposed.

Former R.C. 2947.061(B) (subsection sometimes termed "super shock probation.")
       {¶30} First, the trial court should not have considered Moore's motion for shock
probation since he had already filed a prior motion, which the court overruled. In State v.
Wells, 8th Dist. No. 82334, 2003-Ohio-4071, ¶10, the Eighth District held that former R.C.
2947.061(B) permits a trial judge to consider only one motion for shock probation; it is
without jurisdiction to consider any subsequent motions. That the trial court here later sua
sponte vacated its 2006 judgment denying Moore's prior early release motion cannot be
used as an argument to circumvent the statutory prohibition against multiple motions.
The holding in Wells reinforces long held statutory construction principle that clear
unambiguous language used by the legislature is to be given deference by the courts,
particularly where, as here, the law is a "special statutory procedure." Id. at ¶9 citing
State v. Smith, 42 Ohio St.3d 60, 61, 537 N.E.2d 198 (1989) (special statutory
procedures must be strictly construed). Former R.C. 2947.061(B) does not provide any
exceptions to the one motion limitation.
       {¶31} Second, Moore is not eligible for shock probation under former R.C.
2947.061(B) because he committed these crimes using a firearm. The Ohio Supreme
Court held that eligibility for probation is a prerequisite to eligibility for shock probation;
where an offender committed the offense with a firearm he is ineligible for any probation,
                                                                                        - 10 -


shock or otherwise. State v. Bistarkey, 75 Ohio St.3d 7, 8-9, 661 N.E.2d 167 (1996).
       {¶32} Thus, the trial court should not have even considered Moore's motion for
shock probation/early release since he was ineligible in the first instance. Moreover, the
trial court lacked jurisdiction to consider the instant motion because it had already
overruled a prior motion in 2006.
       {¶33} Nonetheless, Moore contends it was within the trial court's discretion to
order his release, especially considering that the trial court cited concerns about the
validity of Moore's 1996 guilty plea as an alternative basis. In its judgment the trial court
sua sponte engaged in an extensive discussion of Moore's guilty plea, concluding that
because Moore was not informed of the maximum punishment for the crimes that his plea
was "constitutionally flawed." The trial court made this finding despite the fact that this
same trial judge presided over the entire history of this case: Moore's plea, sentence,
post-conviction petition and the two previous early release motions; as well as the present
motion which is the subject of this appeal.
       {¶34} Moore never challenged his guilty plea via direct appeal, an App.R. 26
application to reopen his direct appeal, or a post-sentence motion to withdraw his plea.
He asserted in his pro-se post-conviction petition that trial counsel was ineffective for
failing to notify him of the possibility of consecutive sentences. That petition was
dismissed on the merits by the trial court; on appeal this court did not reach the merits,
concluding that the petition should have been dismissed as untimely. Moore II, supra.
Thus, any argument relative to the validity of Moore's plea is barred by res judicata. See
generally State v. Burnside, 7th Dist. No. 09 MA 179, 2010-Ohio-4183, ¶3.
                                           Conclusion
       {¶35} The former shock probation statute, R.C. 2941.061, applies to Moore's
motion, not the current judicial release statute. Further, the trial court's judgment granting
shock probation and ordering Moore's early release from prison is a final, appealable
order, from which the state's right to appeal is discretionary, not absolute.
       {¶36} The State's assignment of error is meritorious. First, the trial court should
not have considered Moore's motion for shock probation since he had already filed a prior
                                                                                        - 11 -


motion, which the court overruled. Second, because Moore committed the offenses with
a firearm, he is not eligible for probation, which is a prerequisite for shock probation
eligibility under former R.C. 2947.061. Finally, the trial court erred by finding Moore's plea
was "constitutionally flawed" and a basis for granting his release; consideration of that
issue was barred by res judicata. Accordingly, the judgment of the trial court is reversed,
and the order granting Moore judicial release is vacated.
Vukovich, J., concurs.
Donofrio, J., concurs.
