[Cite as State v. Green, 2018-Ohio-1493.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 18-CA-3 SHANE GREEN : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Knox County Court of Common Pleas, Case No. 08CR01-0004
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 17, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES T. MCCONVILLE SHANE L. GREEN #578-590 KNOX COUNTY PROSECUTOR MARION CORRECTIONAL INSTITUTION BY: VINCE J. VILLIO Box 57 117 East High Street Marion, OH 43301-0057 Mount Vernon, OH 43050 [Cite as State v. Green, 2018-Ohio-1493.]
Gwin, P.J.
{¶1} Appellant appeals the January 22, 2018 judgment entry of the Knox County
Court of Common Pleas denying his motion for reconsideration of sentence to correct
and resentence. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} Appellant Shane Green was indicted on January 8, 2008, by the Knox
County Grand Jury on one count of rape of a child under the age of ten, in violation of
R.C. 2907.02(A)(1)(b), a felony of the first degree, and one count of gross sexual
imposition, in violation of R.C. 2097.05(A)(4), a felony of the third degree. Appellant was
accused of raping his eight-year-old biological daughter.
{¶3} After a jury trial, appellant was convicted of both counts and sentenced to a
definite term of life imprisonment on Count One and a term of five years on Count Two,
with the terms to run consecutively. On June 18, 2008, appellant appealed his conviction
to this Court. State v. Green, 5th Dist. Knox No. 08-CA-20, 2009-Ohio-2065. In this direct
appeal, appellant argued as follows: (1) the indictment was defective; (2) ineffective
assistance of trial counsel; and (3) the mens rea in the jury instructions was incorrect. On
May 1, 2009, this Court affirmed the judgment of the Knox County Court of Common
Pleas. Id.
{¶4} On March 11, 2015, appellant filed a motion to vacate and dismiss void
judgment. Appellant argued that the trial court lacked jurisdiction over him because he
was not sworn in under oath during the grand jury proceedings, the indictment was
defective, and the arrest warrant issued for him was not valid. The trial court denied
appellant’s motion. Appellant appealed to this Court and argued: “(1) the trial court Knox County, Case No. 18-CA-3 3
abused its discretion by not ordering an evidential hearing on a challenge of jurisdiction
of personam and subject-matter and (2) the trial court abused its discretion in denying
defendant’s challenge of jurisdiction in response of ruling defendant’s challenge of
jurisdiction as a post-conviction petition.” In State v. Green, 5th Dist. Knox No. 15-CA-
13, 2015-Ohio-4441, we overruled appellant’s assignments of error and affirmed the
judgment entry of the trial court.
{¶5} Appellant filed a motion for reconsideration of sentence to correct and
resentence on December 6, 2017. Appellant argued he was not properly notified of post-
release control for Count 1 and the trial court erred in sentencing him to a definite term of
life imprisonment and instead should have imposed an indefinite prison term. Appellee
filed a memorandum in opposition to appellant’s motion on December 11, 2017.
Appellant filed a response to the State’s opposition on December 26, 2017. On January
22, 2018, the trial court denied appellant’s motion.
{¶6} Appellant appeals the January 22, 2018 judgment entry of the Knox County
Court of Common Pleas and assigns the following as error:
{¶7} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT CONVEYING
DEFENDANT BACK TO COURT FOR SENTENCING MANDATED BY LAW.
DEFENDANT’S SENTENCING ENTRY STATES “DEFINITE TERM OF LIFE” AND
DOES NOT STATE ANY TERMS OF POST-RELEASE CONTROL. THE APPELLANT’S
SENTENCE DOES NOT SATISFY STATUTORY REQUIREMENTS.”
{¶8} Appellant makes two separate arguments in his appellate brief. First, he
contends the trial court failed to state a term of post-release control as mandated by law
and he was not properly notified of his post-release control. Second, he argues that the Knox County, Case No. 18-CA-3 4
trial court erred when it did not impose an indefinite prison term under R.C. 2971.03(A)(3)
and instead imposed a definite term of life imprisonment.
{¶9} Appellant first claims the trial court failed to state a term of post-release
control as mandated by law and that he was not properly notified of his post-release
control. In State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, the Ohio Supreme Court
identified what information the sentencing entry must contain to validly impose post-
release control in which the trial court made the proper advisements at the sentencing
hearing. The Ohio Supreme Court found the sentencing entry must contain the following
information: (1) whether post-release control is discretionary or mandatory; (2) the
duration of the post-release control period, and (3) a statement to the effect that the Adult
Parole Authority (APA) will administer the post-release control pursuant to R.C. 2967.28
and that any violation by the offender of the conditions of post-release control will subject
the offender to the consequences set forth in that statute. Id. The Ohio Supreme Court
further stated that when an appellant does not introduce a transcript of the sentencing
hearing into the record, the Court must “assume the regularity of the sentencing hearing.”
Id.
{¶10} In this case, the trial court did state the term of post-release control in the
sentencing entry as five (5) years. Pursuant to R.C. 2929.19(B)(2)(c) and R.C.
2967.28(B)(1), the proper term of post-release control for appellant in this case is five (5)
years. In reviewing the post-release control notification language in the 2008 judgment
entry, we find the language to be sufficient under the authority of Grimes. Id. The
transcript of the 2008 sentencing has not been filed or made part of the record in this case
on appeal. Therefore, we must “assume the regularity of the sentencing hearing.” Id.; Knox County, Case No. 18-CA-3 5
State v. Brown, 5th Dist. Richland No. 17CA55, 2017-Ohio-8997; State v. Persinger, 5th
Dist. Morrow No. 2017CA0007, 2018-Ohio-1076. Accordingly, we find the trial court did
not err in overruling appellant’s motion to correct sentence, as appellant was properly
notified of his post-release control sanction.
{¶11} As to appellant’s second argument, appellant’s claim that the trial court
erred when it did not impose an indefinite prison term and instead imposed a definite term
of life imprisonment could have been raised in his direct appeal. State v. Wolfe, 5th Dist.
Delaware No. 16 CAA 02008, 2016-Ohio-4616. “Under the doctrine of res judicata, a
final judgment of conviction bars the defendant from raising and litigating in any
proceeding except an appeal from that judgment, any defense or claimed lack of due
process that the defendant raised or could have raised at the trial which resulted in that
judgment of conviction or on appeal from that judgment.” State v. Perry, 10 Ohio St.2d
175, 226 N.E.2d 104 (1967). As this Court has previously held, “a defendant who fails on
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Green, 2018-Ohio-1493.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 18-CA-3 SHANE GREEN : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Knox County Court of Common Pleas, Case No. 08CR01-0004
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 17, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES T. MCCONVILLE SHANE L. GREEN #578-590 KNOX COUNTY PROSECUTOR MARION CORRECTIONAL INSTITUTION BY: VINCE J. VILLIO Box 57 117 East High Street Marion, OH 43301-0057 Mount Vernon, OH 43050 [Cite as State v. Green, 2018-Ohio-1493.]
Gwin, P.J.
{¶1} Appellant appeals the January 22, 2018 judgment entry of the Knox County
Court of Common Pleas denying his motion for reconsideration of sentence to correct
and resentence. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} Appellant Shane Green was indicted on January 8, 2008, by the Knox
County Grand Jury on one count of rape of a child under the age of ten, in violation of
R.C. 2907.02(A)(1)(b), a felony of the first degree, and one count of gross sexual
imposition, in violation of R.C. 2097.05(A)(4), a felony of the third degree. Appellant was
accused of raping his eight-year-old biological daughter.
{¶3} After a jury trial, appellant was convicted of both counts and sentenced to a
definite term of life imprisonment on Count One and a term of five years on Count Two,
with the terms to run consecutively. On June 18, 2008, appellant appealed his conviction
to this Court. State v. Green, 5th Dist. Knox No. 08-CA-20, 2009-Ohio-2065. In this direct
appeal, appellant argued as follows: (1) the indictment was defective; (2) ineffective
assistance of trial counsel; and (3) the mens rea in the jury instructions was incorrect. On
May 1, 2009, this Court affirmed the judgment of the Knox County Court of Common
Pleas. Id.
{¶4} On March 11, 2015, appellant filed a motion to vacate and dismiss void
judgment. Appellant argued that the trial court lacked jurisdiction over him because he
was not sworn in under oath during the grand jury proceedings, the indictment was
defective, and the arrest warrant issued for him was not valid. The trial court denied
appellant’s motion. Appellant appealed to this Court and argued: “(1) the trial court Knox County, Case No. 18-CA-3 3
abused its discretion by not ordering an evidential hearing on a challenge of jurisdiction
of personam and subject-matter and (2) the trial court abused its discretion in denying
defendant’s challenge of jurisdiction in response of ruling defendant’s challenge of
jurisdiction as a post-conviction petition.” In State v. Green, 5th Dist. Knox No. 15-CA-
13, 2015-Ohio-4441, we overruled appellant’s assignments of error and affirmed the
judgment entry of the trial court.
{¶5} Appellant filed a motion for reconsideration of sentence to correct and
resentence on December 6, 2017. Appellant argued he was not properly notified of post-
release control for Count 1 and the trial court erred in sentencing him to a definite term of
life imprisonment and instead should have imposed an indefinite prison term. Appellee
filed a memorandum in opposition to appellant’s motion on December 11, 2017.
Appellant filed a response to the State’s opposition on December 26, 2017. On January
22, 2018, the trial court denied appellant’s motion.
{¶6} Appellant appeals the January 22, 2018 judgment entry of the Knox County
Court of Common Pleas and assigns the following as error:
{¶7} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT CONVEYING
DEFENDANT BACK TO COURT FOR SENTENCING MANDATED BY LAW.
DEFENDANT’S SENTENCING ENTRY STATES “DEFINITE TERM OF LIFE” AND
DOES NOT STATE ANY TERMS OF POST-RELEASE CONTROL. THE APPELLANT’S
SENTENCE DOES NOT SATISFY STATUTORY REQUIREMENTS.”
{¶8} Appellant makes two separate arguments in his appellate brief. First, he
contends the trial court failed to state a term of post-release control as mandated by law
and he was not properly notified of his post-release control. Second, he argues that the Knox County, Case No. 18-CA-3 4
trial court erred when it did not impose an indefinite prison term under R.C. 2971.03(A)(3)
and instead imposed a definite term of life imprisonment.
{¶9} Appellant first claims the trial court failed to state a term of post-release
control as mandated by law and that he was not properly notified of his post-release
control. In State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, the Ohio Supreme Court
identified what information the sentencing entry must contain to validly impose post-
release control in which the trial court made the proper advisements at the sentencing
hearing. The Ohio Supreme Court found the sentencing entry must contain the following
information: (1) whether post-release control is discretionary or mandatory; (2) the
duration of the post-release control period, and (3) a statement to the effect that the Adult
Parole Authority (APA) will administer the post-release control pursuant to R.C. 2967.28
and that any violation by the offender of the conditions of post-release control will subject
the offender to the consequences set forth in that statute. Id. The Ohio Supreme Court
further stated that when an appellant does not introduce a transcript of the sentencing
hearing into the record, the Court must “assume the regularity of the sentencing hearing.”
Id.
{¶10} In this case, the trial court did state the term of post-release control in the
sentencing entry as five (5) years. Pursuant to R.C. 2929.19(B)(2)(c) and R.C.
2967.28(B)(1), the proper term of post-release control for appellant in this case is five (5)
years. In reviewing the post-release control notification language in the 2008 judgment
entry, we find the language to be sufficient under the authority of Grimes. Id. The
transcript of the 2008 sentencing has not been filed or made part of the record in this case
on appeal. Therefore, we must “assume the regularity of the sentencing hearing.” Id.; Knox County, Case No. 18-CA-3 5
State v. Brown, 5th Dist. Richland No. 17CA55, 2017-Ohio-8997; State v. Persinger, 5th
Dist. Morrow No. 2017CA0007, 2018-Ohio-1076. Accordingly, we find the trial court did
not err in overruling appellant’s motion to correct sentence, as appellant was properly
notified of his post-release control sanction.
{¶11} As to appellant’s second argument, appellant’s claim that the trial court
erred when it did not impose an indefinite prison term and instead imposed a definite term
of life imprisonment could have been raised in his direct appeal. State v. Wolfe, 5th Dist.
Delaware No. 16 CAA 02008, 2016-Ohio-4616. “Under the doctrine of res judicata, a
final judgment of conviction bars the defendant from raising and litigating in any
proceeding except an appeal from that judgment, any defense or claimed lack of due
process that the defendant raised or could have raised at the trial which resulted in that
judgment of conviction or on appeal from that judgment.” State v. Perry, 10 Ohio St.2d
175, 226 N.E.2d 104 (1967). As this Court has previously held, “a defendant who fails on
direct appeal to challenge the sentence imposed on him for an offense is barred by res
judicata from appealing that sentence * * *.” State v. Lindsay, 5th Dist. Richland No.
16CA39, 2017-Ohio-595. Therefore, appellant’s argument is barred by res judicata.
{¶12} Further, appellant cannot show that R.C. 2971.03(A)(3) applies to his
conviction of rape under R.C. 2907.02(A)(1)(b). R.C. 2971.03(A)(3)(a) states, in pertinent
part, “* * * if the offense for which the sentence is being imposed is an offense other than
aggravated murder, murder, or rape and other than an offense for which a term of life
imprisonment may be imposed, it shall impose an indefinite prison term * * *.” Thus, the
plain language of R.C. 2971.03(A)(3)(a) specifically excludes from its mandates any
person who was convicted of rape. Appellant was convicted of rape pursuant to R.C. Knox County, Case No. 18-CA-3 6
2907.02(A)(1)(b); thus, the provisions of R.C. 2971.03(A)(3) are not applicable in this
case. The trial court did not err when it did not impose an indefinite prison term under
R.C. 2971.03(A)(3) and instead imposed a definite term of life imprisonment and did not
err when it denied his motion to correct sentence.
{¶13} Based on the foregoing, appellant’s assignment of error is overruled. The
January 22, 2018 judgment entry of the Knox County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, Earle, J., concur