State v. Montgomery

2019 Ohio 853

• Court: Ohio Court of Appeals
• Decided: March 12, 2019
• Docket: 2018-CA-00115
• Status: Published

Opinion

[Cite as State v. Montgomery, 2019-Ohio-853.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J Plaintiff – Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2018-CA-00115 ROMAR M. MONTGOMERY

Defendant – Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Case No. 2006-CR- 00512

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 12, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES ROMAR MONTGOMERY, Pro Se Licking County Prosecutor Inmate #A556398 Southern Ohio Correctional Facility PAULA M. SAWYERS P.O. Box 45699 Assistant Prosecuting Attorney Lucasville, Ohio 45699 20 S. Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 2018-CA-00115 2

Hoffman, P.J. {¶1} Appellant Romar M. Montgomery appeals the judgment entered by the

Licking County Common Pleas Court overruling his “Motion to Correct Void Judgment of

Conviction Concerning Post Release Control.” Appellee is the state of Ohio.

STATEMENT OF THE CASE1

{¶2} On September 22, 2006, Appellant was indicted by the Licking County

Grand Jury on one count of trafficking in crack cocaine (a felony of the third degree), one

count of complicity to commit trafficking in crack cocaine (a felony of the second degree),

one count of trafficking in crack cocaine (a felony of the first degree), and one count of

trafficking in cocaine (a felony of the second degree). Appellant appeared before the trial

court on October 3, 2006, with counsel, and entered a plea of not guilty to all four charges.

{¶3} Following jury trial, Appellant was convicted on all counts, including special

findings on each count. The court sentenced Appellant to an aggregate prison term of 25

years in prison.

{¶4} Appellant filed a direct appeal to this Court, raising three Assignments of

Error. On November 2, 2008, we affirmed Appellant's conviction and sentence. State v.

Montgomery, 5th Dist. Licking 2007 CA 95, 2008–Ohio–6077.

{¶5} On January 30, 2013, Appellant filed with a pro se motion for resentencing

and a supplemental pleading for resentencing, alleging his sentence was void due to the

trial court's imposition of an additional one-year sentence enhancement to his conviction

as a major drug offender on Count III. On April 17, 2013, the trial court denied the motion.

Appellant filed an appeal of that decision to this Court. On November 27, 2013, we

1 A rendition of the facts is unnecessary to our disposition of the issues raised on appeal. Licking County, Case No. 2018-CA-00115 3

overruled appellant's three assigned errors under the doctrine of res judicata and affirmed

the trial court's decision to deny resentencing. State v. Montgomery, 5th Dist. Licking No.

13–CA–39, 2013–Ohio–5287.

{¶6} On September 26, 2016, Appellant filed another motion for resentencing,

claiming in the original sentencing entry of July 12, 2007, the trial court had not imposed

a post-release control sanction from a prior conviction in another case. Appellant's motion

for resentencing was denied by the trial court on November 14, 2016, and affirmed by this

Court. State v. Montgomery, 5th Dist. Licking No. 16 CA 0104, 2017-Ohio-7457.

{¶7} Appellant filed a Motion to Correct Void Judgment of Conviction Concerning

Post Release Control on August 31, 2018. The trial court overruled the motion on

November 16, 2018. It is from the November 16, 2018 judgment Appellant prosecutes

this appeal, assigning as error:

THE TRIAL COURT ERRORED AS A MATTER OF LAW IN

IMPOSING A FIVE YEAR PERIOD OF POST-RELEASE CONTROL FOR

A THIRD AND SECOND DEGREE FELONY, AND FOR FAILING TO

STATE WHETHER POST-RELEASE CONTROL IS DISCRETIONARY OR

MANDATORY.

{¶8} Appellant first argues his sentence is void because the entry does not state

whether post-release control is mandatory or discretionary.

{¶9} The July 12, 2007 judgment of conviction states, “The Court informed the

defendant that upon release from prison he would be on post-release control for five Licking County, Case No. 2018-CA-00115 4

years, and that is not reducible by the Adult Parole Authority.” We find this language

sufficiently states Appellant would be subject to a mandatory term of post-release control

of five years.

{¶10} Appellant further argues while he was subject to a five year mandatory term

of post-release control for his first degree felony conviction, he was also convicted of a

third degree felony and two second degree felonies, for which the terms of post-release

control would be three years discretionary and three years mandatory respectively, and

his sentencing entry is void because the trial court failed to impose post-release control

for these convictions.

{¶11} R.C. 2967.28(F)(4)(c) provides:

If an offender is subject to more than one period of post-release

control, the period of post-release control for all of the sentences shall be

the period of post-release control that expires last, as determined by the

parole board or court. Periods of post-release control shall be served

concurrently and shall not be imposed consecutively to each other.

{¶12} In the instant case, Appellant was subject to more than one period of post-

release control. The trial court properly imposed only the period of post-release control

which would expire last, in this case, the five year mandatory term of post-release control

for the first degree felony. Licking County, Case No. 2018-CA-00115 5

{¶13} The assignment of error is overruled. The judgment of the Licking County

Common Pleas Court is affirmed.

By: Hoffman, P.J. Wise, John, J. and Baldwin, J. concur