State v. McCuller

2025 Ohio 837

• Court: Ohio Court of Appeals
• Decided: March 13, 2025
• Docket: 114153
• Status: Published

Opinion

[Cite as State v. McCuller, 2025-Ohio-837.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant/ Cross-Appellee, : No. 114153 v. :

CHARLES MCCULLER, :

Defendant-Appellee/ Cross-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPEAL DISMISSED, CROSS-APPEAL JUDGMENT AFFIRMED RELEASED AND JOURNALIZED: March 13, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-679991-A

Appearances:

Cullen Sweeney, Cuyahoga County Public Defender, and Michael V. Wilhelm, Assistant Public Defender, for appellee and cross-appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Brittany Stipich and Anthony T. Miranda, Assistant Prosecuting Attorneys, for appellant and cross- appellee. EILEEN T. GALLAGHER, J.:

The State of Ohio (“State”) brings this appeal challenging the judgment

of the trial court terminating appellant Charles D. McCuller’s (“McCuller”) parole

supervision. McCuller cross-appealed, arguing that the trial court erred in denying

his motion to dismiss the indictment.

After a thorough review of the applicable law and facts, we dismiss the

State’s appeal and affirm the judgment of the trial court.

I. Factual and Procedural History

In 1979, McCuller was charged in juvenile court in three cases; he was

bound over and the cases were transferred to the common pleas court. McCuller

pled guilty to rape charges in Cuyahoga C.P. No. CR-79-052011-ZA and Cuyahoga

C.P. No. CR-79-48919-ZA. He was sentenced to two sentences of seven to 25 years

in prison, to be served consecutively. McCuller had also been convicted of attempted

rape and felonious assault in Cuyahoga C.P. No. 79-048254-ZA. His sentence on

this case was run concurrently to the sentences in the two other cases for a total

prison sentence of 14 to 50 years.

McCuller was paroled in 1988 but later violated his parole five times.

In 2002, while incarcerated on his fifth parole violation, he was classified as a

sexually oriented offender and sexual predator under the sex-offender registration

system then in effect (Megan’s Law), that required him to register every 90 days for life. In 2004, he was provided with the registration requirements and first

registered with the sheriff’s office.

In December 2022, McCuller was notified that his next registration date

was March 14, 2023. As of March 17, 2023, he had not verified his address, and a

warning letter was sent to him, notifying him that he had to register by March 24,

2023. He did not do so.

McCuller was indicted on one count of failure to verify address, a third-

degree felony, in violation of R.C. 2950.06, and one count of failure to provide notice

of change of address, a third-degree felony, in violation of R.C. 2950.05(E)(1).

McCuller moved to dismiss the indictment, asserting that the

registration statute in question, former R.C. 2950.04, only applied to offenders who

were convicted and sentenced to prison for a sexually oriented offense and who were

released from prison on that offense on or after July 1, 1997. He further argued that

he had been improperly classified as a sexual predator in 2002 and asserted that he

had been released from prison in 1988 and was therefore not incarcerated when

Megan’s Law became effective in 1997. He maintained that a trial court was only

permitted to conduct a sexual-predator classification hearing prior to the offender’s

release from prison or up until a year after release.

The State opposed McCuller’s motion to dismiss, arguing that McCuller

was, in fact, incarcerated on the original offense because he had been paroled prior

to serving his full sentence and returned to prison five times for parole violations —

not for other crimes. Therefore, he was incarcerated for the sexually oriented offense after 1997 and was properly classified as a sexual predator under

R.C. 2950.04.

The trial court denied the motion, finding that McCuller did have a duty

to register as a sexual predator. The court further stated, “Defendant was first

paroled from his indefinite sentence on [March 28, 1988], prior to the statute’s [July

1, 1997] language. However, parole did not release him from his prison term.

Defendant was not released from the [seven to] 25 year prison term on the rape

charge until after [July 1, 1997].”

McCuller then pled no contest to both counts. At the plea hearing,

McCuller acknowledged that he was currently on parole and that the current charges

could violate his parole. His counsel informed the court that McCuller had been

placed on parole “pre-Senate Bill 2” and was to remain on parole until August 2030.

Defense counsel asked the court to consider terminating McCuller’s parole since she

believed that it was possible that if his parole were violated, he would have to serve

his remaining six years in prison.

The court asked the State if it would like to be heard with regard to

McCuller’s motion to terminate parole; the State responded that it would “defer to

the [c]ourt.” McCuller was sentenced to community control for a period of two years

on each count, and the court stated that it was “terminat[ing] [his] parole in Case

Numbers CR 79-052011 and 79-049139.” However, in its sentencing entry, the

court stated, “Parole terminated in CR-052011, CR-049139, CR-048254.” The trial court subsequently entered a nunc pro tunc judgment entry, revising the case

numbers for the parole termination to be “CR-052011, CR-048919, CR-048254.”

The State then filed the instant appeal, and McCuller cross-appealed.

II. Law and Analysis

A. State’s Appeal

The State argues that the trial court erred in terminating McCuller’s

parole because the trial court lacked legal authority to terminate parole supervision

in the prior cases.

During the briefing in this matter, McCuller moved to dismiss the

appeal, arguing that this court lacked jurisdiction. The State’s appeal was

purportedly brought under R.C. 2953.08(B)(2), which provides the State with the

right to appeal a sentence that is contrary to law. McCuller argued in his motion to

dismiss that the State is actually appealing the court’s modification of a sentence

from a separate case, not the sentence from the instant underlying case, and

therefore the State was required to seek leave to appeal. The State asserted that its

appeal related to a decision contained in the sentencing entry and prevents the

reimposition of a prison sentence by the Adult Parole authority; therefore the State

argued that it had appealed a “sentence” under R.C. 2953.08(B)(2).

McCuller’s motion to dismiss was denied administratively, and the

appeal proceeded. In his brief, McCuller reiterates his position that this appeal should be

dismissed for lack of jurisdiction. He maintains that the State had been required to

seek leave to appeal the judgment in this matter; since it did not, and simply filed its

notice of appeal, McCuller contends that the appeal should be dismissed. The State

continues to insist that it appealed McCuller’s sentence and therefore did not need

to seek leave to file its appeal.

R.C. 2953.08 provides, in pertinent part:

(B) In addition to any other right to appeal and except as provided in division (D) of this section, a prosecuting attorney . . . may appeal as a matter of right a sentence imposed upon a defendant who is convicted of or pleads guilty to a felony or, in the circumstances described in division (B)(3) of this section the modification of a sentence imposed upon such a defendant, on any of the following grounds:

(1) The sentence did not include a prison term despite a presumption favoring a prison term for the offense for which it was imposed, as set forth in section 2929.13 or Chapter 2925 of the Revised Code.

(2) The sentence is contrary to law.

(3) The sentence is a modification under section 2929.20 of the Revised Code of a sentence that was imposed for a felony of the first or second degree.

There does not appear to be any argument that the modification of

McCuller’s sentences to terminate parole would fall under subsection (B)(3), since

this section applies to sentence reduction through judicial release. Thus, the only

provision that could apply in this matter is (B)(2), pertaining to the appeal of a

sentence that is contrary to law. Indeed, the State noted in its notice of appeal that

it was bringing the appeal pursuant to R.C. 2953.08(B)(2). The question before us is whether the trial court’s termination of

McCuller’s parole in the prior cases should be considered part of McCuller’s sentence

in the current matter. “Sentence” is defined in the Ohio Revised Code as “the

sanction or combination of sanctions imposed by the sentencing court on an

offender who is convicted of or pleads guilty to an offense.” R.C. 2929.01(EE). We

cannot find that the modification of McCuller’s parole in the prior cases constituted

a “sanction or combination of sanctions” in the instant matter. Rather, it is clear

that, in terminating McCuller’s parole in the prior cases, the trial court was

modifying those sentences. Simply because the modification was ordered within

the current sentencing entry does not render it part of the sentence in the present

case. The State does not argue that any part of the actual sentence imposed was

contrary to law.

Accordingly, the State has not appealed McCuller’s sentence in the

instant matter but the modification of his prior sentences. R.C. 2953.08(B)(2) “does

not refer to the modification of a sentence; rather, it authorizes the prosecuting

attorney to appeal, as a matter of right, a sentence imposed on a defendant on the

grounds that ‘[t]he sentence is contrary to law.’” State v. Cunningham, 113 Ohio

St.3d 108, 112. The Cunningham Court held that the statute does not apply to a

modification of a sentence that is claimed to be contrary to law. Id., citing State v.

Raitz, 2003-Ohio-5687, ¶ 13 (6th Dist.).

“It is imperative that final judgments be disturbed only pursuant to

the limited avenues afforded under the law.” State v. Jones, 2018-Ohio-954, ¶ 18 (8th Dist.). Thus, the State was required to seek leave in order to appeal the court’s

decision. App.R. 5(C) provides that “a motion for leave to appeal shall be filed with

the court of appeals within thirty days from the entry of the order sought to be

appealed . . . .” “[T]he filing of a motion for leave to appeal by the state in a criminal

case is jurisdictional, and the failure to take that action within thirty days is fatal.”

State v. Roey, 2012-Ohio-2207, ¶ 9 (8th Dist.), quoting State v. Gowdy, 95 Ohio

App.3d 628, 630 (2d Dist. 1994); State v. Torres, 2012-Ohio-922, ¶ 7 (8th Dist.).

This court has previously noted that a trial court lacks authority to

terminate a defendant’s parole. See State v. Ricks, 2006-Ohio-4268, ¶ 11 (8th Dist.).

Thus, the trial court’s order terminating McCuller’s parole supervision on three

prior cases was contrary to law. Moreover, the case numbers in which parole was

terminated in the sentencing entry included an additional case that had not been

mentioned at the hearing. While there appears to be merit to the State’s appeal, we

are precluded by statute from addressing it. The State has maintained that it had an

absolute right of appeal and failed to move for leave to appeal within the procedural

requirements of App.R. 5. See State v. Hatfield, 48 Ohio St. 2d 118 (1976). In order

to correct the trial court’s error in this case, the State was required to obtain leave

from this court to file an appeal within 30 days of the final order. The record does

not reflect the filing of a request for leave. Without such a filing, this court lacks

jurisdiction to entertain the State’s appeal, and we have no choice but to dismiss.

B. Cross-Appeal In his sole assignment of error, McCuller argues that the trial court

erred in denying his motion to dismiss the indictment. McCuller asserts that the

trial court should have dismissed the indictment because he did not violate any duty

to register. McCuller contends that he was not required to register as a sex offender

since he was released on parole in 1988, which extinguished any future duty to

register. McCuller acknowledges that he violated his parole several times and was

returned to prison. However, he contends that when he was returned to prison after

his release in 1988, it was for parole violations, not the underlying sexually oriented

crimes.

Preliminarily, we note that McCuller unsuccessfully appealed his

classification as a sexual predator in State v. McCuller, 2003-Ohio-4185 (8th Dist.)

(“McCuller I”). At that time, he did not argue that his sentence had been completed

and thus he should not have been classified. Thus, this argument is barred by res

judicata. Where an argument could have been raised in a prior appeal, “res judicata

dictates that it is inappropriate to consider that same argument on a second appeal.”

State v. Davis, 2013-Ohio-4905, ¶ 9 (8th Dist.).

Nevertheless, as explained below, there is no merit to McCuller’s

appeal. In State v. Champion, 2005-Ohio-4098, the Supreme Court of Ohio held

that “[a] person whose prison term for a sexually oriented offense was completed

before July 1, 1997, is not required to register under R.C. 2950.04(A)(1)(a) or

periodically verify a current address under R.C. 2950.06(A).” Id. at the syllabus; see

also State v. Palmer, 2012-Ohio-580, ¶ 25 (finding that Megan’s Law does not apply when defendant completed his sentence for sexual battery before July 1, 1997).

Thus, if McCuller completed his prison sentence for rape prior to the enactment of

Megan’s Law, the former law’s registration requirements would not apply to him.

McCuller’s sexual-predator classification arose from his rape

conviction in CR-79-052011-ZA, where he was sentenced to a prison term of 7 to 25

years. McCuller was first released on parole in March 1988. McCuller appears to

argue that his sentence was completed at this point because he was released from

prison. In making this argument, though, McCuller ignores the fact that he was

returned to prison following his parole violations to resume serving his prison

sentences for the rape convictions. “The essence of parole is release from prison,

before the completion of sentence, on the condition that the prisoner abide by

certain rules during the balance of the sentence.” (Emphasis added.) Morrissey v.

Brewer, 408 U.S. 471, 477 (1972).

At the time of his first release on parole in 1988, McCuller had served

approximately eight years of his prison term. The maximum term he was sentenced

to, however, was twenty-five years in prison. McCuller’s prison term was not

completed by July 1, 1997, which placed him within the ambit of

R.C. 2950.04(A)(1)(a), and the reporting requirements applied to him. Thus, the

trial court did not err in denying his motion to dismiss, and McCuller’s assignment

of error is overruled.

The State’s appeal is hereby dismissed. The judgment of the trial

court relative to the cross-appeal is affirmed. It is ordered that appellee and appellant share costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, A.J., and EMANUELLA D. GROVES, J., CONCUR