State v. Douglas , 2016 Ohio 7350 ( 2016 )

[Cite as State v. Douglas, 2016-Ohio-7350.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 17-16-11
v.
JIMMY DOUGLAS, OPINION
DEFENDANT-APPELLANT.
Appeal from Shelby County Common Pleas Court
Trial Court No. 09CR000047
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: October 17, 2016
APPEARANCES:
Jimmy Douglas, Appellant
Case No. 17-16-11
ROGERS, J.
{¶1} Defendant-Appellant, Jimmy Douglas, appeals the judgment of the
Court of Common Pleas of Shelby County denying his motion to vacate and/or
suspend court costs. For the reasons that follow, we affirm the judgment of the trial
court. However, because Douglas was not properly notified of postrelease control,
we vacate that portion of his sentence and remand for further proceedings.
{¶2} On March 5, 2009, the Shelby County Grand Jury returned an eight-
count indictment against Douglas, charging him with six counts of rape in violation
of R.C. 2907.02(A)(1)(b), felonies of the first degree; and two counts of sexual
battery in violation of R.C. 2907.03(A)(5), felonies of the third degree. At
arraignment, Douglas remained silent, and, therefore, the trial court entered pleas of
not guilty on his behalf.
{¶3} On April 30, 2009, Douglas filed a petition to enter a plea of guilty to
one charge of rape in violation of R.C .2907.02(A)(1)(b), a felony of the first degree,
on the condition that the State would dismiss the remaining charges.
{¶4} A hearing was held on the same day regarding Douglas’s petition. After
conducting the requisite colloquy with Douglas, the court accepted Douglas’s
change of plea and found him guilty. The remaining counts were dismissed.
{¶5} A sentencing hearing was held on June 16, 2009. The trial court
imposed a nine-year prison sentence on the sole count of rape. Additionally,
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Douglas was ordered to pay a fine of $500 and court costs. The court advised
Douglas he would be “required to serve a period of post release control under the
supervision of the parole board.” June 16, 2009 Hrg., p. 12. The court memorialized
its decision by a written entry filed on June 17, 2009. In its entry, the court imposed
the same sentence, except it clarified Douglas’s postrelease control. The court
wrote, “Defendant [has been notified] that post release control is mandatory in this
case up to a maximum of five (5) years * * *.” (Docket No. 34, p. 2).
{¶6} On April 8, 2010, Douglas filed a motion to modify his sentence based
on his argument that his sentence was not mandatory.
{¶7} On May 17, 2010, the court denied Douglas’s motion.
{¶8} On November 30, 2015, Douglas filed a petition to modify his
obligation to pay court costs. Specifically, he requested that he be allowed to pay
$5 a month towards his court costs.
{¶9} On April 7, 2016, Douglas filed a motion to vacate and/or suspend court
costs. Douglas argued that he should not have to pay his court costs because he was
indigent.
{¶10} On April 11, 2016, the court denied Douglas’s motion to vacate and/or
suspend court costs.
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{¶11} Douglas filed this timely appeal, presenting the following assignment
of error for our review.
Assignment of Error
THE COURT ABUSED ITS DISCRETION WHEN THE
COURT DID NOT FOLLOW, [SIC] R.C.2929.18(B)(1) AND
R.C. 2929.19(B)(6) WHEN THE COURT DID NOT CONSIDER
THE PRESENT ABILITY TO PAY FINES, THIS VIOLATED
EQUAL PROTECTION CLAUSE, (14TH AMEND.).
(UNDERLINE SIC.)
{¶12} In his sole assignment of error, Douglas argues that the trial court erred
by denying his motion to suspend and/or vacate court costs. We disagree.
{¶13} Douglas’s motion to vacate and/or suspend court costs is a post-trial
motion that is not specifically provided under the law. See State v. Call, 3d Dist.
Marion No. 9-04-29, 2004-Ohio-5645, ¶ 5. Accordingly, Douglas’s motion is
barred by res judicata because he could have raised the issue on direct appeal and
failed to do so.
{¶14} The Supreme Court of Ohio has recently found that
We have held that R.C. 2947.23 requires a trial court to assess costs
against all criminal defendants, even if the defendant is indigent. State
v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, ¶ 8. A trial court may
waive the payment of costs imposed if the trial court finds that the
defendant is indigent. Id. at ¶ 14. But ‘[a] motion by an indigent
defendant for waiver of the payment of costs must be made at the time
of sentencing.’ State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905,
paragraph two of the syllabus. Otherwise, the issue is waived and
costs are res judicata. Id. at ¶ 23.
State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, ¶ 231.
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{¶15} Under the doctrine of res judicata, a defendant cannot raise an issue in
a motion for post-conviction relief if he or she could have raised, or did raise, the
issue on direct appeal. State v. Reynolds, 79 Ohio St.3d 158, 161 (1997), citing
State v. Duling, 21 Ohio St.2d 13 (1970). The doctrine of res judicata promotes the
principle of finality of judgments by requiring the presentment of every possible
ground for relief in the first action. Kirkhart v. Keiper, 101 Ohio St.3d 377, 2004-
Ohio-1496, ¶ 5, citing Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62
(1990). Since Douglas failed to raise the trial court's order for court costs in a direct
appeal before this Court, he is barred by res judicata from raising the issue in a post-
conviction motion.
{¶16} Accordingly, we overrule Douglas’s sole assignment of error.
{¶17} Although we overrule Douglas’s sole assignment of error, we find that
the trial court failed to properly advise Douglas as to postrelease control.
{¶18} “A trial court’s sentence will not be disturbed on appeal absent a
defendant's showing by clear and convincing evidence that the sentence is
unsupported by the record or otherwise contrary to law.” State v. Barrera, 3d Dist.
Putnam No. 12–12–01, 2012–Ohio–3196, ¶ 20.
{¶19} “A trial court must notify an offender of the length of the term of
postrelease control that applies to his conviction and then incorporate that
notification into its sentencing entry.” State v. Ables, 3d Dist. Mercer No. 10-11-
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03, 2011-Ohio-5873, ¶ 6, citing State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-
2462, ¶ 68. “Sentencing entries that fail to include the required notifications are
void because they are contrary to law.” Id., citing State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, paragraph one of the syllabus.
{¶20} At Douglas’s sentencing hearing, the court simply notified Douglas
that he would be subjected to a period of postrelease control. The court failed to
notify Douglas as to whether postrelease control was mandatory and how long
postrelease control would last. Further, the sentencing entry, although it states that
Douglas will be subject to a mandatory period of postrelease control, states that
Douglas will be subject to a period of “up to” a maximum of five years.
{¶21} At the time of his conviction, all offenders convicted of a first degree
felony or a felony sex offense were subjected to a mandatory period of five years of
postrelease control. See former R.C. 2967.28(B)(1). Because Douglas was
sentenced to a period “up to” five years, his sentence is clearly contrary to law and
void. See State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, ¶ 8, 12.
{¶22} Therefore, we vacate this part of Douglas’s sentence and remand for
resentencing.
{¶23} Having found no error prejudicial to the appellant, in the particulars
assigned and argued, we affirm the judgment of the trial court. However, because
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we found error with the postrelease control portion of Douglas’s sentence, we vacate
that portion, and remand for further proceedings consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
SHAW, P.J. and PRESTON, J., concur.
/jlr
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