State v. Clemmons , 2018 Ohio 2747 ( 2018 )


Menu:
  • [Cite as State v. Clemmons, 2018-Ohio-2747.]
    IN THE COURT OF APPEALS OF OHIO
    SECOND APPELLATE DISTRICT
    MONTGOMERY COUNTY
    STATE OF OHIO                                       :
    :
    Plaintiff-Appellee                          :   Appellate Case No. 27769
    :
    v.                                                  :   Trial Court Case No. 07-CR-4544
    :
    GREGORY CLEMMONS                                    :   (Criminal Appeal from
    :    Common Pleas Court)
    Defendant-Appellant                         :
    :
    ...........
    OPINION
    Rendered on the 13th day of July, 2018.
    ...........
    MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Montgomery
    County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
    West Third Street, 5th Floor, Dayton, Ohio 45402
    Attorney for Plaintiff-Appellee
    GREGORY CLEMMONS, #577-226, P.O. Box 69, London, Ohio 43140
    Defendant-Appellant, Pro Se
    .............
    -2-
    FROELICH, J.
    {¶ 1} Gregory Clemmons appeals from a judgment of the Montgomery County
    Court of Common Pleas, which resentenced him for the sole purpose of properly imposing
    post-release control.    For the following reasons, the trial court’s judgment will be
    affirmed.
    {¶ 2} In April 2008, after a jury trial, Clemmons was convicted of rape of a child
    under the age of ten. The trial court sentenced him to 15 years to life in prison and
    designated him a Tier III sex offender. The judgment entry included a notification that
    Clemmons “will be supervised by the Parole Board for a period of FIVE years Post-
    Release Control after the defendant’s release from imprisonment.” (Emphasis sic.) We
    affirmed Clemmons’s conviction on direct appeal.            State v. Clemmons, 2d Dist.
    Montgomery No. 22747, 2009-Ohio-2066.
    {¶ 3} In 2009, Clemmons sought post-conviction relief, which was denied.
    Clemmons appealed that decision, but the appeal was dismissed for failure to prosecute
    the matter.    State v. Clemmons, 2d Dist. Montgomery No. 23629 (Jan. 25, 2010).
    Clemmons subsequently sought post-conviction DNA testing, which was denied. We
    affirmed that decision. State v. Clemmons, 2d Dist. Montgomery No. 24377, 2011-Ohio-
    4474.
    {¶ 4} In December 2013, Clemmons filed motions to vacate his sentence, which
    were not resolved by the trial court. On August 18, 2017, Clemmons filed a “motion to
    correct an illegal sentence,” claiming that the trial court failed to properly notify him that
    he was subject to post-release control. Clemmons argued that his post-release control
    obligation was included in the judgment entry, but he was not notified of that obligation at
    -3-
    sentencing.
    {¶ 5} On September 19, 2017, the trial court held a sentencing hearing to address
    post-release control. At the hearing, the court informed Clemmons that the resentencing
    was on post-release control only and that he had already been sentenced on the rape
    offense. The court allowed Clemmons to make a statement on his own behalf, and
    Clemmons expressed that the State used false testimony to obtain his conviction.
    Clemmons stated that there were “seven different versions” of the accusation against him,
    and he asserted that the jurors would not have convicted him had they known about the
    multiple versions.
    {¶ 6} The trial court responded to Clemmons that the hearing was for resentencing
    on post-release control only, that “all of the arguments and statements you have made
    today have been issues that you have raised previously,” that his conviction had been
    affirmed on appeal, and that the issues raised by him were barred by res judicata. The
    court then informed Clemmons that, following his release from prison, he would be
    required to serve a mandatory period of post-release control for five years. The court
    also told Clemmons the consequences should he violate post-release control.
    {¶ 7} On September 21, 2017, the trial court entered an amended judgment entry
    which again included Clemmons’s mandatory five-year post-release control obligation.
    {¶ 8} Clemmons appeals from the amended judgment entry.              He raises five
    assignments of error, namely that (1) the prosecutor engaged in misconduct at trial,
    (2) the indictment was insufficient to put him on fair notice of the charges against him,
    (3) the State failed to disclose prior inconsistent statements by his accuser, (4) the court
    erred in relying on “perjured testimony of Detective Dix” in denying Clemmons’s motion
    -4-
    to suppress, and (5) the trial court erred when it denied him the opportunity to present
    evidence of other possible perpetrators.
    {¶ 9} If the defendant has committed an offense subject to post-release control
    under R.C. 2967.28, the trial court must notify the defendant at sentencing of the post-
    release control requirement and the consequences if the defendant violates post-release
    control. R.C. 2929.19; State v. Qualls, 
    131 Ohio St. 3d 499
    , 2012-Ohio-1111, 
    967 N.E.2d 718
    , ¶ 18. It is well-established that when a judge fails to impose the required post-
    release control as part of a defendant’s sentence, “that part of the sentence is void and
    must be set aside.” (Emphasis in original.) State v. Fischer, 
    128 Ohio St. 3d 92
    , 2010-
    Ohio-6238, 
    942 N.E.2d 332
    , ¶ 26; see also State v. Holdcroft, 
    137 Ohio St. 3d 526
    , 2013-
    Ohio-5014, 
    1 N.E.3d 382
    , ¶ 7. The improper post-release control sanction “may be
    reviewed at any time, on direct appeal or by collateral attack.”         Fischer at ¶ 27.
    However, res judicata still applies to all other aspects of conviction, including the
    determination of guilt and the lawful elements of the sentence.” 
    Id. at ¶
    40; Boyd v. State,
    2d Dist. Montgomery No. 27553, 2018-Ohio-108, ¶ 33.
    {¶ 10} “Res judicata” means that a final decision has previously been made; it
    serves to preclude a party who had his or her day in court from seeking a second hearing
    on the same issue. State v. Saxon, 
    109 Ohio St. 3d 176
    , 2006-Ohio-1245, 
    846 N.E.2d 824
    , ¶ 18; Jones v. Mohler, 2d Dist. Montgomery No. 27105, 2017-Ohio-2683, fn.1.
    {¶ 11} Clemmons’s conviction was affirmed on direct appeal, and the trial court
    had jurisdiction at the resentencing hearing only to properly impose post-release control.
    Pursuant to Fischer, all of Clemmons’s assignments of error, which relate to pretrial or
    trial matters, are barred by res judicata.
    -5-
    {¶ 12} Clemmons claims that we should not follow Fischer, because Fischer is
    contrary to authority from the United States Supreme Court and federal appellate courts.
    As an intermediate appellate court, we are required to follow the holdings of the Ohio
    Supreme Court, which is the ultimate authority on matters of state law. And, even with
    respect to federal law, state courts generally are not bound by decisions of federal courts,
    except for decisions of the United States Supreme Court. State v. Gillispie, 2016-Ohio-
    7688, 
    65 N.E.3d 791
    , ¶ 30 (2d Dist.). Upon review of the authority cited by Clemmons,
    we remain convinced that we must follow Fischer.
    {¶ 13} Clemmons’s assignments of error are overruled.
    {¶ 14} The trial court’s judgment will be affirmed.
    .............
    DONOVAN, J. and HALL, J., concur.
    Copies mailed to:
    Mathias H. Heck
    Sarah E. Hutnik
    Gregory Clemmons
    Hon. Mary Katherine Huffman
    

Document Info

Docket Number: 27769

Citation Numbers: 2018 Ohio 2747

Judges: Froelich

Filed Date: 7/13/2018

Precedential Status: Precedential

Modified Date: 7/13/2018