State v. Gooden , 2012 Ohio 2042 ( 2012 )

[Cite as State v. Gooden, 2012-Ohio-2042.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26028
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOE MELVIN GOODEN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 09 04 1082
DECISION AND JOURNAL ENTRY
Dated: May 9, 2012
MOORE, Judge.
{¶1} Appellant, Joe M. Gooden, appeals the judgment of the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} In 2007, Gooden pleaded guilty to five charges, including intimidation of a crime
victim or witness, a felony of the third degree. As part of his sentence, the trial court imposed
three years of postrelease control. Gooden did not appeal from this sentencing order. In 2009,
Gooden pleaded guilty to charges of domestic violence and disrupting public services. The trial
court sentenced Gooden to three years of incarceration on the domestic violence charge and one
year of incarceration on the disrupting public services charge, to be served concurrently. The
court further ordered that Gooden serve an additional one-year sentence as a postrelease control
sanction, consecutive to his domestic violence and disrupting public services sentences. Gooden
did not appeal the 2009 sentencing order.
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{¶3} In 2010, Gooden filed a motion to correct his 2009 sentence because he argued
that his 2007 sentence was void due to a purportedly improper imposition of the three-year
period of postrelease control. From this premise, Gooden argued that his 2009 conviction
imposing a sanction for violating postrelease control was also void. We dismissed the appeal
due to Gooden’s failure to timely file a merit brief.
{¶4} Gooden then petitioned this court for a writ of procedendo to compel the trial
court judge to issue “a final, appealable order in his criminal case,” contending that neither the
2007 nor the 2009 sentencing entry was a final, appealable order. We dismissed this petition,
and the Supreme Court affirmed the dismissal.
{¶5} Gooden subsequently filed a motion in the trial court to correct his 2009 sentence.
The trial court denied this motion on June 16, 2011. Gooden filed a timely notice of appeal from
the trial court’s order and presents one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT DENIED GOODEN’S MOTION TO
CORRECT HIS UNLAWFUL SENTENCE.
{¶6} In his sole assignment of error, Gooden argues that his 2007 conviction
improperly imposed postrelease control, causing that portion of his 2007 sentence to be void.
Therefore, Gooden argues that the trial court could not sentence him to a postrelease control
violation sanction of one year in 2009, and that portion of his 2009 sentence imposing the one-
year sanction must be vacated.
{¶7} Pursuant to R.C. 2929.141, “Upon the conviction of or plea of guilty to a felony
by a person on post-release control at the time of the commission of the felony, the court may
terminate the term of post-release control,” and the court may then either “impose a prison term
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for the post-release control violation” or “impose a sanction under sections 2929.14 to 2929.18
of the Revised Code[.]” Here, the trial court, having determined that Gooden was on postrelease
control at the time of his 2009 conviction, imposed upon him a one-year prison term for the
postrelease control violation pursuant to R.C. 2929.141.
{¶8} In reviewing this Court’s dismissal of Gooden’s petition for a writ of procedendo,
the Ohio Supreme Court held that “[a]lthough Gooden’s original sentence in 2007 may have
been defective in the imposition of postrelease control, his 2009 sentence included the correct
terms of postrelease control.” State ex rel. Gooden v. Teodosio, 128 Ohio St.3d 538 (2011).
Further, the Court determined that “[i]nsofar as Gooden claims that [the trial court] improperly
enhanced his 2009 sentence based on Gooden’s violation of his 2007 postrelease control, he had
an adequate remedy by way of appeal from the 2009 sentence to raise that issue.” Id.{¶9} However, as noted above, Gooden did not directly appeal from his 2009 sentence.
It is long-standing precedent in Ohio that res judicata bars the consideration of issues that could
have been raised on direct appeal. (Citations omitted.) State v. Saxon, 109 Ohio St.3d 176, 2006-
Ohio-1245, ¶ 16-17. However, principles of res judicata do not apply to review of void
sentences. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph two of the syllabus.
Gooden cites Fischer for the proposition that his 2007 sentencing entry was void to the extent
that it improperly imposed postrelease control. See Fischer at ¶ 26 (“when a judge fails to
impose statutorily mandated postrelease control as part of a defendant's sentence, that part of the
sentence is void and must be set aside”). Gooden argues that, to the extent that the court’s 2007
sentencing entry imposed postrelease control, it is void because the trial court failed to set forth
that his third degree felony conviction included physical violence or a threat of physical violence
and because the entry did not set forth possible consequences resulting from a violation of
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postrelease control. Gooden then cites the Fifth District’s holding in State v. Henderson, 5th
Dist. No. 10-COA-012, 2011-Ohio-1791, to support his contention that res judicata does not
preclude review of a postrelease control sanction where the underlying term of postrelease
control was improperly imposed.
{¶10} In Henderson, the defendant was convicted of a felony in 2007 while he was
subject to postrelease control resulting from his previous convictions from 2002. Id. at ¶ 3, 18-
21. The trial court ordered the defendant to serve an additional 659 days in prison as a sanction
for the postrelease control violation. Id. at ¶ 22. The defendant appealed from his 2007
sentencing entry, and the Fifth District affirmed his conviction. Id. at ¶ 4. In 2009, the defendant
filed a motion to correct his sentence, arguing that the underlying postrelease control
notifications were void, and thus the trial court could not sentence him to a postrelease control
violation sanction in 2007. Id. at ¶ 5. The trial court denied his motion, but the Fifth District
reversed, noting deficiencies in each of the underlying postrelease control notifications, and
determining that the defendant’s previous sentencing entries were void insofar as these entries
incorrectly imposed postrelease control. Id. at ¶ 22. Therefore, the Fifth District determined
that the trial court erred in failing to correct his 2007 sentence, because the court lacked authority
to therein impose a postrelease control sanction. Id. at ¶ 23.
{¶11} However, in State v. Walker, 5th Dist. No. 11-COA-046, 2012-Ohio-1513, the
Fifth District recently noted a significant limitation to its holding in Henderson. In Walker, the
postrelease control sentence at issue was imposed after the effective date of R.C. 2967.28. Id. at
¶ 21. Therefore, the court noted that the case fell “within the purview of R.C. 2967.28(B), which
states a trial court’s failure to properly impose postrelease control for sentences imposed on or
after July 11, 2006 does not negate, limit or otherwise affect the mandatory period of postrelease
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control for a felony of the third degree in the commission of which the offender caused or
threatened physical harm to a person.” Id. See also R.C. 2967.28(B). Thus, the Fifth District
itself has specifically limited its holding in Henderson to those cases where the underlying period
of postrelease control was imposed prior to July 11, 2006. Walker at ¶ 21. Here, Gooden was
sentenced to three years of post-release control in 2007, and thus, any reliance on Henderson is
misplaced.
{¶12} Therefore, pursuant to R.C. 2967.28(B), the errors alleged by Gooden as to the
imposition of the mandatory three years of postrelease control do not affect the validity of the
postrelease control so imposed. As there is no other basis on which Gooden challenges his 2009
conviction as void, his challenges to the postrelease control sanction could have been raised on
direct appeal, and our review is barred by res judicata. Accordingly, Gooden’s assignment of
error is overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
JOE M. GOODEN, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.