[Cite as State v. Shaffer, 2020-Ohio-4386.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Earle E. Wise, Jr., J. : : Case Nos. 2019-CA-00149 -vs- : 2019-CA-00189 : 2019-CA-00190 : 2019-CA-00191 JORDAN T. SHAFFER : 2019-CA-00192 : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeals from the Court of Common Pleas, Case Nos. 2010-CR-0668, 2013-CR-1748B, 2014-CR-1206, 2016-CR-1624, 2017-CR-0877
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 9, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO JORDAN T. SHAFFER, PRO SE PROSECUTING ATTORNEY #764-974 STARK COUNTY, OHIO Lake Erie Correctional Institution 501 Thompson Road By: KRISTINE W. BEARD P.O. Box 8000 110 Central Plaza South Conneaut, OH 44030 Suite 510 Canton, OH 44702-1413 Stark County, Case Nos. 2019-CA-00149, 2019-CA-00189, 2019-CA-00190, 2019-CA-00191, 2019-CA-00192 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Jordan T. Shaffer, appeals the August 27 and 28,
2019, and September 17, 2019 judgment entries of the Court of Common Pleas of Stark
County, Ohio, denying his motion to vacate postrelease control. Plaintiff-Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 6, 2010, the Honorable John G. Haas sentenced appellant to
two years in prison and imposed three years of mandatory postrelease control after
appellant pled guilty to robbery in violation of R.C. 2911.02 (Case No. 2010CR0668).
Appellant did not filed an appeal.
{¶ 3} On April 15, 2014, the Honorable John G. Haas sentenced appellant to
three years of community control and imposed three years of optional postrelease
control after appellant pled guilty to possession of cocaine in violation of R.C. 2925.11
and possession of drug paraphernalia in violation of R.C. 2925.14 (Case No.
2013CR1748B). Appellant did not filed an appeal.
{¶ 4} On September 8, 2014, the Honorable J. Curtis Werren sentenced
appellant to six months in prison and imposed three years of optional postrelease
control after appellant pled guilty to possession of heroin in violation of R.C. 2925.11
(Case No. 2014CR1206). Appellant did not filed an appeal.
{¶ 5} On November 7, 2016, the Honorable John G. Haas sentenced appellant
to an aggregate six months in prison and imposed three years of optional postrelease
control after appellant pled guilty to possession of heroin and aggravated possession of Stark County, Case Nos. 2019-CA-00149, 2019-CA-00189, 2019-CA-00190, 2019-CA-00191, 2019-CA-00192 3
drugs in violation of R.C. 2925.11 (Case No. 2016CR1624). Appellant did not filed an
appeal.
{¶ 6} On June 29, 2017, the Honorable Kristin G. Farmer sentenced appellant
to six months in prison and imposed three years of optional postrelease control after
appellant pled guilty to aggravated possession of drugs in violation of R.C. 2925.11
(Case No. 2017CR0877). Appellant did not filed an appeal.
{¶ 7} Appellant filed identical motions to vacate postrelease control in the
respective cases on August 19 and 27, 2019. By judgment entries filed on August 27
and 28, 2019, and September 17, 2019, each trial court denied its respective motion.
{¶ 8} Appellant filed an appeal in each case and was given five separate
appellate case numbers. Appellant filed his brief with three assignments of error on
January 23, 2020. Appellant filed a second appellate brief with one assignment of error
on March 16, 2020. On April 2, 2020, appellee moved to strike the second brief. The
motion was taken under advisement. Appellee filed its appellate brief on May 26, 2020,
addressing all four assignments of error. The one assignment of error listed in the
second brief is merely an overall general assignment incorporating the arguments of the
three assignments of error listed in the first brief. Given appellee's opportunity to
address all of the assignments of error, appellee's motion to strike appellant's second
appellate brief filed on March 16, 2020, is denied. Assignments of error are as follows:
I
{¶ 9} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
DENIED SHAFFER'S MOTION TO VACATE POST-RELEASE CONTROL DUE TO
THE FACT THAT IT DID NOT INCLUDE A STATUTORILY MANDATED TERM OF Stark County, Case Nos. 2019-CA-00149, 2019-CA-00189, 2019-CA-00190, 2019-CA-00191, 2019-CA-00192 4
POST-RELEASE CONTROL INTO THE SENTENCING ENTRY WHICH RENDERS
THE POST-RELEASE CONTROL OF SHAFFER'S SENTENCE VOID."
II
{¶ 10} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID
NOT REFERENCE THE CORRECT DIVISION OR A DIVISION WHATSOEVER OF
SENTENCING STATUTE R.C. 2929.19 AS APPLICABLE TO SHAFFER INTO ITS
SENTENCING ENTRY."
III
{¶ 11} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID
NOT SUFFICIENTLY INCORPORATE NOTICE OF POST-RELEASE CONTROL INTO
ITS SENTENCE ENTRY AS MANDATED UNDER 'GRIMES.' SPECIFICALLY, THE
SENTENCE ENTRY DID NOT CONTAIN THE CURRENT ADVISEMENT 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' (R.C. 2967.28)."
IV
{¶ 12} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION
TO VACATE POST-RELEASE CONTROL"
I, II, III, IV
{¶ 13} Each of these assignments of error challenge the trial courts' denials of
appellant's respective motion to vacate postrelease control and will be addressed
collectively. Stark County, Case Nos. 2019-CA-00149, 2019-CA-00189, 2019-CA-00190, 2019-CA-00191, 2019-CA-00192 5
{¶ 14} In his motion to vacate postrelease control, appellant argued because the
sentencing entries did not properly impose postrelease control, the sentences are void
and he is not subject to any postrelease control. In support of his arguments, appellant
cited State v. Fischer, 128 Ohio St.3d, 2010-Ohio-6238, 942 N.E.2d 332, State v.
Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, and State v. Baker, 9th
Dist. Summit No. 26411, 2012-Ohio-5645, which relied on State v. Billiter, 134 Ohio
St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960. Fischer, Grimes, and Billiter have all
specifically been overruled by the Supreme Court of Ohio in State v. Harper, --- Ohio
St.3d ---, 2020-Ohio-2913, --- N.E.3d ---.
{¶ 15} In Harper at ¶ 39, the Supreme Court of Ohio acknowledged "now is the
time to realign our void-sentence jurisprudence" and stated the following at ¶ 40:
For all of the reasons stated above, we overrule our precedent to
the extent that it holds that the failure to properly impose postrelease
control in the sentence renders that portion of a defendant's sentence
void. We do this not because we reject the precept that courts lack
authority to substitute a different sentence for that provided by statute, but
because noncompliance with requirements for imposing postrelease
control is best remedied the same way as other trial and sentencing
errors—through timely objections at sentencing and an appeal of the
sentence.
{¶ 16} The Harper court concluded the following at ¶ 42-43: Stark County, Case Nos. 2019-CA-00149, 2019-CA-00189, 2019-CA-00190, 2019-CA-00191, 2019-CA-00192 6
A sentence is void when a sentencing court lacks jurisdiction over
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[Cite as State v. Shaffer, 2020-Ohio-4386.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Earle E. Wise, Jr., J. : : Case Nos. 2019-CA-00149 -vs- : 2019-CA-00189 : 2019-CA-00190 : 2019-CA-00191 JORDAN T. SHAFFER : 2019-CA-00192 : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeals from the Court of Common Pleas, Case Nos. 2010-CR-0668, 2013-CR-1748B, 2014-CR-1206, 2016-CR-1624, 2017-CR-0877
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 9, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO JORDAN T. SHAFFER, PRO SE PROSECUTING ATTORNEY #764-974 STARK COUNTY, OHIO Lake Erie Correctional Institution 501 Thompson Road By: KRISTINE W. BEARD P.O. Box 8000 110 Central Plaza South Conneaut, OH 44030 Suite 510 Canton, OH 44702-1413 Stark County, Case Nos. 2019-CA-00149, 2019-CA-00189, 2019-CA-00190, 2019-CA-00191, 2019-CA-00192 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Jordan T. Shaffer, appeals the August 27 and 28,
2019, and September 17, 2019 judgment entries of the Court of Common Pleas of Stark
County, Ohio, denying his motion to vacate postrelease control. Plaintiff-Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 6, 2010, the Honorable John G. Haas sentenced appellant to
two years in prison and imposed three years of mandatory postrelease control after
appellant pled guilty to robbery in violation of R.C. 2911.02 (Case No. 2010CR0668).
Appellant did not filed an appeal.
{¶ 3} On April 15, 2014, the Honorable John G. Haas sentenced appellant to
three years of community control and imposed three years of optional postrelease
control after appellant pled guilty to possession of cocaine in violation of R.C. 2925.11
and possession of drug paraphernalia in violation of R.C. 2925.14 (Case No.
2013CR1748B). Appellant did not filed an appeal.
{¶ 4} On September 8, 2014, the Honorable J. Curtis Werren sentenced
appellant to six months in prison and imposed three years of optional postrelease
control after appellant pled guilty to possession of heroin in violation of R.C. 2925.11
(Case No. 2014CR1206). Appellant did not filed an appeal.
{¶ 5} On November 7, 2016, the Honorable John G. Haas sentenced appellant
to an aggregate six months in prison and imposed three years of optional postrelease
control after appellant pled guilty to possession of heroin and aggravated possession of Stark County, Case Nos. 2019-CA-00149, 2019-CA-00189, 2019-CA-00190, 2019-CA-00191, 2019-CA-00192 3
drugs in violation of R.C. 2925.11 (Case No. 2016CR1624). Appellant did not filed an
appeal.
{¶ 6} On June 29, 2017, the Honorable Kristin G. Farmer sentenced appellant
to six months in prison and imposed three years of optional postrelease control after
appellant pled guilty to aggravated possession of drugs in violation of R.C. 2925.11
(Case No. 2017CR0877). Appellant did not filed an appeal.
{¶ 7} Appellant filed identical motions to vacate postrelease control in the
respective cases on August 19 and 27, 2019. By judgment entries filed on August 27
and 28, 2019, and September 17, 2019, each trial court denied its respective motion.
{¶ 8} Appellant filed an appeal in each case and was given five separate
appellate case numbers. Appellant filed his brief with three assignments of error on
January 23, 2020. Appellant filed a second appellate brief with one assignment of error
on March 16, 2020. On April 2, 2020, appellee moved to strike the second brief. The
motion was taken under advisement. Appellee filed its appellate brief on May 26, 2020,
addressing all four assignments of error. The one assignment of error listed in the
second brief is merely an overall general assignment incorporating the arguments of the
three assignments of error listed in the first brief. Given appellee's opportunity to
address all of the assignments of error, appellee's motion to strike appellant's second
appellate brief filed on March 16, 2020, is denied. Assignments of error are as follows:
I
{¶ 9} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
DENIED SHAFFER'S MOTION TO VACATE POST-RELEASE CONTROL DUE TO
THE FACT THAT IT DID NOT INCLUDE A STATUTORILY MANDATED TERM OF Stark County, Case Nos. 2019-CA-00149, 2019-CA-00189, 2019-CA-00190, 2019-CA-00191, 2019-CA-00192 4
POST-RELEASE CONTROL INTO THE SENTENCING ENTRY WHICH RENDERS
THE POST-RELEASE CONTROL OF SHAFFER'S SENTENCE VOID."
II
{¶ 10} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID
NOT REFERENCE THE CORRECT DIVISION OR A DIVISION WHATSOEVER OF
SENTENCING STATUTE R.C. 2929.19 AS APPLICABLE TO SHAFFER INTO ITS
SENTENCING ENTRY."
III
{¶ 11} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID
NOT SUFFICIENTLY INCORPORATE NOTICE OF POST-RELEASE CONTROL INTO
ITS SENTENCE ENTRY AS MANDATED UNDER 'GRIMES.' SPECIFICALLY, THE
SENTENCE ENTRY DID NOT CONTAIN THE CURRENT ADVISEMENT 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' (R.C. 2967.28)."
IV
{¶ 12} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION
TO VACATE POST-RELEASE CONTROL"
I, II, III, IV
{¶ 13} Each of these assignments of error challenge the trial courts' denials of
appellant's respective motion to vacate postrelease control and will be addressed
collectively. Stark County, Case Nos. 2019-CA-00149, 2019-CA-00189, 2019-CA-00190, 2019-CA-00191, 2019-CA-00192 5
{¶ 14} In his motion to vacate postrelease control, appellant argued because the
sentencing entries did not properly impose postrelease control, the sentences are void
and he is not subject to any postrelease control. In support of his arguments, appellant
cited State v. Fischer, 128 Ohio St.3d, 2010-Ohio-6238, 942 N.E.2d 332, State v.
Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, and State v. Baker, 9th
Dist. Summit No. 26411, 2012-Ohio-5645, which relied on State v. Billiter, 134 Ohio
St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960. Fischer, Grimes, and Billiter have all
specifically been overruled by the Supreme Court of Ohio in State v. Harper, --- Ohio
St.3d ---, 2020-Ohio-2913, --- N.E.3d ---.
{¶ 15} In Harper at ¶ 39, the Supreme Court of Ohio acknowledged "now is the
time to realign our void-sentence jurisprudence" and stated the following at ¶ 40:
For all of the reasons stated above, we overrule our precedent to
the extent that it holds that the failure to properly impose postrelease
control in the sentence renders that portion of a defendant's sentence
void. We do this not because we reject the precept that courts lack
authority to substitute a different sentence for that provided by statute, but
because noncompliance with requirements for imposing postrelease
control is best remedied the same way as other trial and sentencing
errors—through timely objections at sentencing and an appeal of the
sentence.
{¶ 16} The Harper court concluded the following at ¶ 42-43: Stark County, Case Nos. 2019-CA-00149, 2019-CA-00189, 2019-CA-00190, 2019-CA-00191, 2019-CA-00192 6
A sentence is void when a sentencing court lacks jurisdiction over
the subject-matter of the case or personal jurisdiction over the accused.
When the sentencing court has jurisdiction to act, sentencing errors in the
imposition of postrelease control render the sentence voidable, not void,
and the sentence may be set aside if successfully challenged on direct
Having realigned our jurisprudence with the traditional
understanding of void and voidable sentences, we caution prosecuting
attorneys, defense counsel, and pro se defendants throughout this state
that they are now on notice that any claim that the trial court has failed to
properly impose postrelease control in the sentence must be brought on
appeal from the judgment of conviction or the sentence will be subject to
res judicata. See R.C. 2953.02 (providing for appeals in criminal cases);
2953.08 (providing for prosecution and defense appeals of felony
sentences); 2945.67 (providing when the prosecution may appeal).
{¶ 17} Appellant has not made any arguments that any of the trial courts lacked
jurisdiction over the subject-matter of his case or personal jurisdiction over him. A
review of each case indicates the respective trial court had subject-matter and personal
jurisdiction to sentence appellant. Article IV, Section 4(B), Ohio Constitution; R.C.
2931.03. Therefore, any challenges to the imposition of postrelease control should
have been addressed on direct appeal. Appellant did not file a direct appeal in any of Stark County, Case Nos. 2019-CA-00149, 2019-CA-00189, 2019-CA-00190, 2019-CA-00191, 2019-CA-00192 7
his cases. Because appellant could have raised his arguments regarding postrelease
control on appeal, he is now barred by the doctrine of res judicata. Harper, supra;
Accord State v. Hudson, --- Ohio St.3d ---, 2020-Ohio-3849, --- N.E.3d --- (applying the
doctrine of res judicata to a case involving the denial of a motion to vacate postrelease
control filed over a decade after the direct appeal wherein postrelease control was not
challenged).
{¶ 18} As explained by the Supreme Court of Ohio in State v. Perry, 10 Ohio
St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus:
Under the doctrine of res judicata, a final judgment of conviction
bars the convicted defendant from raising and litigating in any proceeding,
except an appeal from that judgment, any defense or any claimed lack of
due process that was raised or could have been raised by the defendant
at the trial which resulted in that judgment of conviction or on an appeal
from that judgment.
{¶ 19} Upon review, we find each of the trial courts did not err in denying
appellant's motion to vacate postrelease control.
{¶ 20} Assignments of Error I, II, III, and IV are denied. Stark County, Case Nos. 2019-CA-00149, 2019-CA-00189, 2019-CA-00190, 2019-CA-00191, 2019-CA-00192 8
{¶ 21} The judgments of the Court of Common Pleas of Stark County, Ohio are
hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Delaney, J. concur.
EEW/db