[Cite as State v. Klein, 2022-Ohio-4600.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220170 TRIAL NO. B-0502958A Plaintiff-Appellee, :
vs. : O P I N I O N.
THOMAS KLEIN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: December 21, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Thomas Klein, pro se. OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Defendant-appellant Thomas Klein appeals the Hamilton County
Common Pleas Court’s judgment denying the relief sought in his “Renewal of Motion
to Vacate Void Sentence under [R.C.] 2929.191 And Presentence Objections” and his
other “pending motions,” which included Klein’s motion for a hearing to present
evidence to rebut the presumption under R.C. 2903.42(A)(1) that he is required to
enroll in Ohio’s violent-offender database (“the VOD”). Because Klein is entitled to a
hearing on his motion to rebut the VOD-enrollment presumption, we reverse the
court’s judgment in part and remand this cause to the common pleas court with
instructions to afford Klein a hearing as contemplated under R.C. 2903.42(A)(4).
Procedural History
{¶2} In 2006, Klein was convicted of aggravated burglary, having weapons
while under a disability, and four counts of kidnapping and was sentenced to
consecutive prison terms totaling 32 years. He unsuccessfully challenged his
convictions on direct appeal, State v. Klein, 1st Dist. Hamilton No. C-060519 (June
20, 2007), and in postconviction motions filed with the common pleas court in 2013
and 2018.
{¶3} In 2019, Klein filed a postconviction motion seeking in part to modify
his sentences, arguing that the evidence was legally insufficient to support three of his
four kidnapping convictions, and that his aggravated-burglary and kidnapping
offenses were subject to merger under R.C. 2941.25. He also sought to rebut the VOD-
enrollment presumption. The common pleas court dismissed the motion to the extent
it sought modification of the sentences and overruled the request to rebut the VOD-
enrollment presumption because that matter was not “ripe for consideration.” On
appeal, this court reversed the lower court’s judgment overruling Klein’s motion to
rebut the VOD-enrollment presumption, holding that under “the VOD statutes, Klein’s
right to rebut the VOD-enrollment presumption arose on March 20, 2019, when the
2 OHIO FIRST DISTRICT COURT OF APPEALS
statutes became effective,” and remanded for further proceedings. We affirmed the
trial court’s judgment in all other respects. State v. Klein, 2020-Ohio-6948, 65 N.E.3d
800, ¶ 24 and 26 (1st Dist.).
{¶4} On remand, Klein filed a “Notice of Intent to Present Evidence and
Request for Hearing under [R.C.] 2903.42(A)(1)” as well as a “brief” in support,
arguing that he was not the principal offender of the charged offenses because he was
“actually innocent” of these crimes, and therefore, he should not be required to enroll
in the VOD. In addition, he filed a supplement to his brief, setting forth the following
errors that occurred at his trial: his due-process rights were violated when the trial
court prevented him from fully cross-examining his accuser and prohibited him from
presenting relevant mens-rea and “critical-witness” evidence; his retrial was in
violation of constitutional double-jeopardy protections when the trial court erred by
declaring a mistrial in his first jury trial; the evidence was insufficient to support three
of his kidnapping convictions; his fourth kidnapping conviction was against the
manifest weight of the evidence; and his kidnapping and aggravated-burglary offenses
should have merged.
{¶5} Next, Klein filed a “Renewal of Motion To Vacate Void Sentence Under
[R.C.] 2929.191 And Presentence Objections,” asserting that his original sentences
were “null and void” because the trial court had improperly imposed postrelease
control. Therefore, Klein argued that he was entitled to a new sentencing hearing
under R.C. 2929.191, where he can raise the same challenges to his convictions and
sentences that were outlined above and included in his supplemental brief to his
motion requesting a hearing under the VOD statutes.
{¶6} The common pleas court summarily denied these motions, and Klein
now appeals.
3 OHIO FIRST DISTRICT COURT OF APPEALS
Assignments of Error
{¶7} In his first assignment of error, Klein argues that the common pleas
court “erred by refusing to provide Klein his legal due under [R.C.] 2929.191(A) when
moved to do so.” Under this assignment, Klein contends that he is entitled to a de
novo sentencing hearing under R.C. 2929.191(A) because the trial court improperly
imposed postrelease control. We overrule this assignment of error because the trial
court properly imposed postrelease control as a part of Klein’s sentence when it
notified him at the original sentencing hearing and in the sentencing entry that his
sentence would include a mandatory five-year term of postrelease control upon his
release from prison and informed him of the consequences of violating postrelease
control. The trial court was not required, as Klein argues, to notify him of the
postrelease-control period applicable to each offense. In multiple-offense cases, the
sentencing court only has a duty to notify the defendant of and impose the longest
term of postrelease control applicable under R.C. 2967.28(B). State v. Winters, 8th
Dist. Cuyahoga No. 109560, 2020-Ohio-4754, ¶ 8; State v. Davic, 10th Dist. Franklin
No. 18AP-569, 2019-Ohio-1320, ¶ 13; State v. Kozic, 7th Dist. Mahoning No. 17 MA
0100, 2018-Ohio-816, ¶ 14; State v. Reed, 2012-Ohio-5983, 983 N.E.2d 394 (6th
Dist.), ¶ 12.
{¶8} In his second assignment of error, Klein contends that the court erred
by failing to hold a hearing as contemplated under R.C. 2903.42 on his motion to rebut
the VOD-enrollment presumption and by “refusing to address the plain error
presented it upon Klein’s establishing of his actual innocence.” The state concedes,
and we agree, that it was error for the common pleas court to deny Klein’s motion to
rebut the VOD-enrollment presumption without first holding a hearing. In our prior
decision addressing Klein’s 2019 postconviction motions, we specifically noted that
the VOD statutes provided “a right to a hearing on the motion to rebut.” Klein, 2020-
Ohio-6948, 165 N.E.3d 800, at ¶ 20, citing R.C. 2903.42(A)(1). But in that hearing,
4 OHIO FIRST DISTRICT COURT OF APPEALS
the common pleas court is not tasked with reconsidering Klein’s factual guilt or
entertaining a collateral attack on Klein’s convictions. Instead, the court, when
considering a motion to rebut the VOD-enrollment presumption, is to only determine
whether the defendant was the principal offender of the charged offenses and, if not,
whether the defendant should still be required to enroll in the VOD. See State v. Hall,
2021-Ohio-1894, 173 N.E.3d 166 (2d Dist.) (the only method to rebut the presumption
of having to register as a violent offender is to prove defendant is not the principal
offender); R.C.
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[Cite as State v. Klein, 2022-Ohio-4600.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220170 TRIAL NO. B-0502958A Plaintiff-Appellee, :
vs. : O P I N I O N.
THOMAS KLEIN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: December 21, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Thomas Klein, pro se. OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Defendant-appellant Thomas Klein appeals the Hamilton County
Common Pleas Court’s judgment denying the relief sought in his “Renewal of Motion
to Vacate Void Sentence under [R.C.] 2929.191 And Presentence Objections” and his
other “pending motions,” which included Klein’s motion for a hearing to present
evidence to rebut the presumption under R.C. 2903.42(A)(1) that he is required to
enroll in Ohio’s violent-offender database (“the VOD”). Because Klein is entitled to a
hearing on his motion to rebut the VOD-enrollment presumption, we reverse the
court’s judgment in part and remand this cause to the common pleas court with
instructions to afford Klein a hearing as contemplated under R.C. 2903.42(A)(4).
Procedural History
{¶2} In 2006, Klein was convicted of aggravated burglary, having weapons
while under a disability, and four counts of kidnapping and was sentenced to
consecutive prison terms totaling 32 years. He unsuccessfully challenged his
convictions on direct appeal, State v. Klein, 1st Dist. Hamilton No. C-060519 (June
20, 2007), and in postconviction motions filed with the common pleas court in 2013
and 2018.
{¶3} In 2019, Klein filed a postconviction motion seeking in part to modify
his sentences, arguing that the evidence was legally insufficient to support three of his
four kidnapping convictions, and that his aggravated-burglary and kidnapping
offenses were subject to merger under R.C. 2941.25. He also sought to rebut the VOD-
enrollment presumption. The common pleas court dismissed the motion to the extent
it sought modification of the sentences and overruled the request to rebut the VOD-
enrollment presumption because that matter was not “ripe for consideration.” On
appeal, this court reversed the lower court’s judgment overruling Klein’s motion to
rebut the VOD-enrollment presumption, holding that under “the VOD statutes, Klein’s
right to rebut the VOD-enrollment presumption arose on March 20, 2019, when the
2 OHIO FIRST DISTRICT COURT OF APPEALS
statutes became effective,” and remanded for further proceedings. We affirmed the
trial court’s judgment in all other respects. State v. Klein, 2020-Ohio-6948, 65 N.E.3d
800, ¶ 24 and 26 (1st Dist.).
{¶4} On remand, Klein filed a “Notice of Intent to Present Evidence and
Request for Hearing under [R.C.] 2903.42(A)(1)” as well as a “brief” in support,
arguing that he was not the principal offender of the charged offenses because he was
“actually innocent” of these crimes, and therefore, he should not be required to enroll
in the VOD. In addition, he filed a supplement to his brief, setting forth the following
errors that occurred at his trial: his due-process rights were violated when the trial
court prevented him from fully cross-examining his accuser and prohibited him from
presenting relevant mens-rea and “critical-witness” evidence; his retrial was in
violation of constitutional double-jeopardy protections when the trial court erred by
declaring a mistrial in his first jury trial; the evidence was insufficient to support three
of his kidnapping convictions; his fourth kidnapping conviction was against the
manifest weight of the evidence; and his kidnapping and aggravated-burglary offenses
should have merged.
{¶5} Next, Klein filed a “Renewal of Motion To Vacate Void Sentence Under
[R.C.] 2929.191 And Presentence Objections,” asserting that his original sentences
were “null and void” because the trial court had improperly imposed postrelease
control. Therefore, Klein argued that he was entitled to a new sentencing hearing
under R.C. 2929.191, where he can raise the same challenges to his convictions and
sentences that were outlined above and included in his supplemental brief to his
motion requesting a hearing under the VOD statutes.
{¶6} The common pleas court summarily denied these motions, and Klein
now appeals.
3 OHIO FIRST DISTRICT COURT OF APPEALS
Assignments of Error
{¶7} In his first assignment of error, Klein argues that the common pleas
court “erred by refusing to provide Klein his legal due under [R.C.] 2929.191(A) when
moved to do so.” Under this assignment, Klein contends that he is entitled to a de
novo sentencing hearing under R.C. 2929.191(A) because the trial court improperly
imposed postrelease control. We overrule this assignment of error because the trial
court properly imposed postrelease control as a part of Klein’s sentence when it
notified him at the original sentencing hearing and in the sentencing entry that his
sentence would include a mandatory five-year term of postrelease control upon his
release from prison and informed him of the consequences of violating postrelease
control. The trial court was not required, as Klein argues, to notify him of the
postrelease-control period applicable to each offense. In multiple-offense cases, the
sentencing court only has a duty to notify the defendant of and impose the longest
term of postrelease control applicable under R.C. 2967.28(B). State v. Winters, 8th
Dist. Cuyahoga No. 109560, 2020-Ohio-4754, ¶ 8; State v. Davic, 10th Dist. Franklin
No. 18AP-569, 2019-Ohio-1320, ¶ 13; State v. Kozic, 7th Dist. Mahoning No. 17 MA
0100, 2018-Ohio-816, ¶ 14; State v. Reed, 2012-Ohio-5983, 983 N.E.2d 394 (6th
Dist.), ¶ 12.
{¶8} In his second assignment of error, Klein contends that the court erred
by failing to hold a hearing as contemplated under R.C. 2903.42 on his motion to rebut
the VOD-enrollment presumption and by “refusing to address the plain error
presented it upon Klein’s establishing of his actual innocence.” The state concedes,
and we agree, that it was error for the common pleas court to deny Klein’s motion to
rebut the VOD-enrollment presumption without first holding a hearing. In our prior
decision addressing Klein’s 2019 postconviction motions, we specifically noted that
the VOD statutes provided “a right to a hearing on the motion to rebut.” Klein, 2020-
Ohio-6948, 165 N.E.3d 800, at ¶ 20, citing R.C. 2903.42(A)(1). But in that hearing,
4 OHIO FIRST DISTRICT COURT OF APPEALS
the common pleas court is not tasked with reconsidering Klein’s factual guilt or
entertaining a collateral attack on Klein’s convictions. Instead, the court, when
considering a motion to rebut the VOD-enrollment presumption, is to only determine
whether the defendant was the principal offender of the charged offenses and, if not,
whether the defendant should still be required to enroll in the VOD. See State v. Hall,
2021-Ohio-1894, 173 N.E.3d 166 (2d Dist.) (the only method to rebut the presumption
of having to register as a violent offender is to prove defendant is not the principal
offender); R.C. 2903.42(A)(4). Therefore, the court did not err by failing to address
Klein’s claims of plain error and actual innocence.
{¶9} Accordingly, we sustain the second assignment of error in part and
overrule it in part, and remand this cause to the common pleas court with instructions
to hold a hearing as contemplated under R.C. 2903.42(A)(1) and (4).
{¶10} In Klein’s third, fourth, fifth, sixth and seventh assignments of error, he
sets forth the same challenges to his convictions and sentences made in his
supplemental brief to his motion for a hearing to rebut the VOD-enrollment
presumption and his motion containing his “presentence objections,” and thus, these
assignments can reasonably be read together to contend that the common pleas court
erred by overruling these postconviction challenges to his convictions and sentences.
We consider these assignments together and overrule them because these claims are
barred by the law-of-the-case doctrine and/or res judicata. See generally Nolan v.
Nolan, 11 Ohio St.3d 1, 462 N.E.2d 1410 (1984); State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967), paragraph nine of the syllabus. Here, this court has recently
determined that Klein’s constitutional challenges to his sentences and/or convictions
that he had raised again on remand were untimely postconviction claims that the
common pleas court did not have jurisdiction to consider. Klein, 2020-Ohio-6948,
165 N.E.3d 800. And Klein’s nonconstitutional challenges to his convictions and
sentences raised on remand had been either raised and rejected in his direct appeal or
5 OHIO FIRST DISTRICT COURT OF APPEALS
could have been raised and were not. Klein, 1st Dist. Hamilton No. C-060519 (June
20, 2007).
Conclusion
{¶11} Based on the foregoing, we reverse the common pleas court’s judgment
in part and remand this cause for further proceedings consistent with this opinion and
the law. In all other respects, the court’s judgment is affirmed.
Judgment affirmed in part, reversed in part, and cause remanded.
BERGERON, J., concurs. MYERS, P.J., concurs in judgment only. Please note:
The court has recorded its own entry on the date of the release of this opinion.