State v. Walker , 2018 Ohio 3964 ( 2018 )

[Cite as State v. Walker, 2018-Ohio-3964.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-T-0024
- vs - :
TASHAWN L. WALKER (aka “BOO”), :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2013 CR
00812.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
TaShawn L. Walker, pro se, PID# A672-455, Marion Correctional Institution, P.O. Box
57, Marion, OH 43301 (Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, TaShawn Walker, appeals from the judgment of the
Trumbull County Court of Common Pleas, denying his “Motion for: Sentencing.” The
issues to be determined by this court are whether proper notification of post-release
control requirements is provided when the trial court states its terms and consequences
and references this in its judgment entry of sentence and whether a guilty plea should
be withdrawn when the defendant contends he misunderstood the potential sentence
despite the fact that it was an agreed sentence. For the following reasons, we affirm the
decision of the court below.
{¶2} On November 13, 2013, Walker was indicted by the Trumbull County
Grand Jury for Aggravated Murder, an unclassified felony, in violation of R.C.
2903.01(A), with an accompanying Firearm Specification in violation of R.C. 2941.145;
Carrying Concealed Weapons, a felony of the fourth degree, in violation of R.C.
2923.12(A)(2) and (F)(1); and Improperly Handling Firearms in a Motor Vehicle, a felony
of the fourth degree, in violation of R.C. 2923.16(B) and (I).
{¶3} On July 20, 2015, a Finding on Guilty Plea to the Amended Indictment
was filed. Walker entered a plea of guilty to an amended count of Involuntary
Manslaughter, a felony of the first degree, in violation of R.C. 2903.04(A) and (C) with a
Firearm Specification, as well as Carrying Concealed Weapons and Improperly
Handling Firearms in a Motor Vehicle as charged in the Indictment.1 At the plea
hearing, the court reviewed Walker’s rights, the maximum sentences, and the agreed-to
sentence outlined in the plea agreement.
{¶4} A sentencing hearing was held following the entry of the plea and an Entry
on Sentence was filed on July 28, 2015. At the hearing, the court noted that Walker had
signed a Notice of Prison Imposition and explained: “In a case like this, you will be
placed on post-release control for 5 years on Count 1, that is mandatory. And up to 3
years on Counts 2 and 3. That’s optional.” Walker was also informed of the
consequences of violating post-release control and expressed that he understood these
advisements. Walker was ordered to serve a term of 11 years in prison for Involuntary
1. Although a transcript of the plea/sentencing hearing was not filed by Walker, it was attached to the
State’s opposition to his initial Motion to Withdraw Guilty Plea.
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Manslaughter, three years for the Firearm Specification, and 18 months for each of the
remaining two counts. All terms were ordered to be served consecutively for a total
prison term of 17 years.
{¶5} On March 2, 2016, Walker filed a Motion to Withdraw Guilty Plea, in which
he argued, inter alia, that trial counsel was ineffective by incorrectly advising him
regarding self-defense. On March 14, 2016, the trial court denied his Motion. This
court affirmed that decision in State v. Walker, 11th Dist. Trumbull No. 2016-T-0034,
2016-Ohio-8521.
{¶6} On February 9, 2018, Walker filed a “Motion for: ‘Sentencing.’” He alleged
various errors in his sentencing, primarily relating to the alleged lack of advisements
regarding the imposition and consequences of post-release control. The Motion
included an “alternative relief request,” asking to withdraw his guilty plea. The lower
court denied the Motion in a February 23, 2018 Judgment Entry.
{¶7} Walker timely appeals and raises the following assignments of error:
{¶8} “[1.] Where a trial court makes a mistake in its journal entry regarding
postrelease control, and further fails to incorporate ‘mandatory’ notifications and findings
of fact in its journal entry, the entry is contrary to law; it must be vacated; and the
appellant is entitled to a new sentencing hearing accordingly. * * *
{¶9} “[2.] A guilty plea is unconstitutional (as a matter of law and fact) when
such plea is predicated on: 1. A breach of an underlying contractual plea agreement * *
* 2. non-compliance with the mandatory provisions of: Crim.R. 11(C)(2)(a) * * * 3. non-
compliance with the mandatory provisions of: Crim.R. 11(C)(2)(c) * * * and 4. the plea
was otherwise not knowingly, intelligently and voluntarily made * * *.”
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{¶10} In his first assignment of error, Walker raises several arguments regarding
the validity of his sentencing.
{¶11} As an initial matter, we note that “[t]he doctrine of res judicata bars the
further litigation in a criminal case of issues that were or could have been raised
previously in a direct appeal,” including alleged sentencing errors. State v. McGowan,
11th Dist. Ashtabula No. 2016-A-0052, 2017-Ohio-7124, ¶ 7. Walker contends,
however, that his sentence was void and, thus, is properly subject to challenge.
{¶12} Void sentences are “not precluded from appellate review by principles of
res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.”
(Citation omitted.) State v. Britta, 11th Dist. Lake No. 2011-L-041, 2011-Ohio-6096, ¶
14. However, a voidable sentence “can be set aside only if successfully challenged on
direct appeal.” State v. Hall, 2017-Ohio-4376, 93 N.E.3d 35, ¶ 12 (11th Dist.), citing
State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 28.
{¶13} Initially, Walker raises a claim relating to the “sequence” of his consecutive
sentences. Any errors in relation to consecutive sentences render the sentences
voidable rather than void. State v. Mitchell, 11th Dist. Trumbull No. 2017-T-0053, 2017-
Ohio-9103, ¶ 12. Thus, this claim is barred although it is worth emphasizing that the
sentence ordered was to the exact term of imprisonment agreed to by the parties.
{¶14} The remainder of Walker’s arguments relate to his contention that the trial
court failed to properly inform him of the length of his post-release control terms and the
consequences for violating post-release control, and to incorporate this information into
the sentencing entry.
{¶15} This court has held that, since the amendment of R.C. 2929.191, errors in
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imposing post-release control are subject to statutory correction procedures and, given
that remedy, “any improper post-release control portions of these sentences are not
void.” Hall, 2017-Ohio-4376, 93 N.E.3d 35, at ¶ 11. This court has further concluded,
however, that since “‘postrelease control does not arise by operation of law and its
imposition will be rendered void unless the trial court’ properly imposed post-release
control,” this court should consider errors relating to the sentence of post-release
control, even when they are not raised on direct appeal. (Emphasis added.) Id. at ¶
18-19; see also State v. Lintz, 11th Dist. Lake No. 2015-L-089, 2017-Ohio-5631, ¶ 11
(referencing the “partial voidness doctrine” in relation to post-release control). In
considering the merits, it is evident that the trial court did not err in its imposition or
order of post-release control.
{¶16} “[A] trial court must provide statutorily compliant notification to a defendant
regarding postrelease control at the time of sentencing, including notifying the
defendant of the details of the postrelease control and the consequences of violating
postrelease control,” and it must incorporate the notice into the sentencing entry. State
v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18-19. “[T]he
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.” State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d
700, ¶ 1.
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{¶17} Walker contends the lower court’s sentencing entry did not notify him of
the consequences of a post-release control violation, including those set forth in R.C.
2929.141(A). We emphasize that the record shows Walker was properly advised at the
sentencing hearing that if he violated the terms of his post-release control, he could be
imprisoned for up to nine months for each violation, with the total not exceeding one-half
of the original sentence.
{¶18} As to the contention that notification of the consequences was not
correctly included in the sentencing entry, this issue has been recently addressed by the
Ohio Supreme Court in Grimes, supra. Grimes held that the trial court “need not repeat
[notifications made at the sentencing hearing] verbatim in the entry,” but must “provide
the APA the information it needs to execute the postrelease-control portion of the
sentence.” Id. at ¶ 13. The requirement to advise a defendant of the consequences of
violating post-release control in the sentencing entry was found to be satisfied when the
sentencing entry described that the court had notified the offender of “‘the
consequences for violating conditions of post release control imposed by Parole Board
under Revised Code § 2967.28’” and also stated that “‘[t]he Defendant is ordered to
serve as part of this sentence any term for violation of that post release control.’” Id. at
¶ 2. “By referring to R.C. 2967.28, the trial court’s entry empowered [the defendant] and
other readers to consult the statute and determine what consequences the APA could
impose for any violation of the conditions of postrelease control.” Id. at ¶ 19. The
sentencing entry in the present matter used this language almost verbatim, stating that
the court notified Walker of “the consequences for violating conditions of post release
control imposed by the Parole Board under Revised Code section 2967.28” and “[t]he
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Defendant is ordered to serve as part of this sentence any term of post release control
imposed by the Parole Board, and any prison term for violation of that post release
control,” thereby satisfying the Grimes standard. Lintz, 2017-Ohio-5631, at ¶ 22 (finding
that exact language to be sufficient).
{¶19} Walker also argues that the court was not permitted to use “the prohibited
language” that he could serve “up to three years” of post-release control for Counts Two
and Three, as he argues such language is impermissible and contrary to law, citing
State v. Tokar, 8th Dist. Cuyahoga No. 91941, 2009-Ohio-4369, and several similar
cases.
{¶20} Walker’s argument is inapplicable to the facts of the present matter. In
Tokar, as well as the other cases cited, it was held that the lower court erred in telling
the defendant he would receive post-release control of “up to three years,” when such
post-release control was actually a mandatory term since the offense was a second-
degree felony. Tokar at ¶ 15, fn. 2; R.C. 2967.28(B)(2). Here, the three-year terms of
post-release control for Counts Two and Three, felonies of the fourth degree, were
optional, as was accurately explained by the court multiple times during the
plea/sentencing hearing, in the signed plea agreement, and in the sentencing entry.
Pursuant to R.C. 2967.28(C), for felonies of the fourth degree (excluding sex offenses),
a term of post-release control is optional and the sentence “shall include a requirement
that the offender be subject to a period of post-release control of up to three years after
the offender’s release from imprisonment, if the parole board, in accordance with
division (D) of this section, determines that a period of post-release control is necessary
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for that offender.” (Emphasis added.) Thus, the court’s description of the potential
post-release control sentence for these two counts was accurate and valid.
{¶21} The first assignment of error is without merit.
{¶22} In his second assignment of error, Walker argues that his guilty plea was
not voluntarily entered since the lower court did not provide proper advisements on the
maximum penalty for his sentence, the consequences of post-release control, and a
notification that a five-year post-release control term was part of his sentence.
{¶23} “Res judicata is applicable to issues asserted in a post-sentence motion to
withdraw a guilty plea; i.e., if an issue could have been reviewed in a direct appeal from
the sentencing judgment, it is barred from consideration in a post-sentence motion.”
State v. Reyes, 11th Dist. Portage No. 2016-P-0010, 2016-Ohio-5673, ¶ 14; State v.
Lorenzo, 11th Dist. Lake No. 2007-L-085, 2008-Ohio-1333, ¶ 20 (res judicata “bars
claims raised in a Crim.R. 32.1 post-sentence motion to withdraw [a] guilty plea that
were raised or could have been raised in prior proceedings”).
{¶24} Here, Walker not only could have raised his arguments in a direct appeal,
he also could have raised them in his first motion to withdraw his plea and subsequent
appeal. He failed to do so.
{¶25} To the extent that Walker argues error in the imposition of post-release
control renders a sentence void and thus should also be considered in relation to a
motion to withdraw, we note that it has been held that the doctrine of res judicata is
inapplicable when a void sentence provides the ground for seeking to withdraw a plea.
See State v. Johnson, 12th Dist. Butler No. CA2016-07-128, 2017-Ohio-4116, ¶ 11-12.
However, as described above, we find no error in the court’s advisements regarding the
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consequences of a violation of post-release control or in its description of the optional
nature of the three-year term. Walker also contends that he was unaware that the five-
year term of post-release control was mandatory, apparently due to confusion
originating from the court’s statement at the plea portion of the hearing that “there is
also a mandatory five-year sentence on Count One and an optional three-year post-
release control on Counts Two and Three,” which Walker seems to allege he interpreted
to relate to the prison term on Count One. This is entirely contradicted by the signed
plea agreement which clearly describes the five-year mandatory term of post-release
control and the eleven-year prison term for Count One, as well as Walker’s statement at
the plea hearing that he understood the agreed-to sentence.
{¶26} The second assignment of error is without merit.
{¶27} For the foregoing reasons, the lower court’s judgment, denying Walker’s
“Motion for: Sentencing,” is affirmed. Costs to be taxed against appellant.
CYNTHIA WESTCOTT RICE, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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