State v. Stewart

2011 Ohio 1911

Opinion

[Cite as State v. Stewart, 2011-Ohio-1911.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 10-CA-166 MICHAEL STEWART : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas Case No. 1999-CR-1409

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: April 18, 2011

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

RONALD MARK CALDWELL 0030663 JEREMY J. MASTERS 0079587 Assistant Prosecuting Attorney Office of the Ohio Public Defender Stark County Prosecutor 250 E. Broad St., Ste. 1400 110 Central Plaza, South, Ste. 510 Columbus, Ohio 43215 Canton, Ohio 44702 [Cite as State v. Stewart, 2011-Ohio-1911.]

Delaney, J.

{¶1} Defendant-Appellant, Michael Stewart appeals the judgment of the Stark

County Court of Common Pleas, which classified him as a sexual predator in 2000.

However, the judgment entry that he appeals this classification from deals strictly with

correcting an error regarding post-release control. The State of Ohio is Plaintiff-

Appellee.

{¶2} In 1999, Appellant was charged with one count of rape, in violation of R.C.

2907.02(A)(2), and one count of aggravated burglary, in violation of R.C. 2911.11(A)(1)

for breaking into the apartment of his estranged wife and raping her. After a jury trial,

Appellant was convicted of rape, but the jury was unable to come to a decision on the

aggravated burglary charge. Appellant was sentenced to a term of 10 years in prison

and was classified as a sexual predator after a hearing.

{¶3} Appellant appealed his conviction to this court in State v. Stewart, 5th Dist.

Nos. 2000CA0356, 2000CA0357, 2001-Ohio-1775, and raised three assignments of

error, including an assignment that his sexual predator classification was erroneous.

This Court affirmed the judgment of the Stark County Common Pleas Court.

{¶4} Appellant subsequently filed a post-conviction petition, challenging his

conviction. His claim was denied by the trial court and no appeal was taken from that

judgment.

{¶5} In 2010, Appellant was renotified of his post-release control obligations via

video conference in order to correct the imposition of post-release control. In the 2000

sentencing entry, the trial court imposed a period of post-release control “up to” a

maximum period of five years. In the 2010 sentencing entry, the court amended the Stark County, Case No. 10-CA-166 3

entry to indicate that Appellant must serve “a mandatory period of five (5) years of post-

release control pursuant to R.C. 2967.28(B).” It is from this 2010 sentencing entry that

Appellant now appeals.

{¶6} Appellant raises one Assignment of Error:

{¶7} “I. THE TRIAL COURT ERRED IN FINDING MICHAEL STEWART TO

BE A SEXUAL PREDATOR (OCTOBER 19, 2000 JOURNAL ENTRY, P. 1).”

I.

{¶1} In Appellant’s sole assignment of error, he argues that the trial court erred

in classifying him as sexual predator in 2000.

{¶2} Appellant’s claims are without merit. Recently, the Ohio Supreme Court,

in State v. Fischer, stated that “(1) when a judge fails to impose statutorily mandated

post-release control as part of a defendant's sentence, that part of the sentence that

was void must be set aside, and,

{¶3} “(2) defendant's remaining claims, which did not involve a void sentence

or judgment, were barred by res judicata; overruling State v. Bezak, 114 Ohio St.3d 94,

2007-Ohio-3250, 868 N.E.2d 961.” State v. Fischer, 128 Ohio St.3d 92, 2010 -Ohio-

6238, 942 N.E.2d 332.

{¶4} Accordingly, Appellant is precluded from contesting his sexual predator

classification from 2000.

{¶5} Appellant’s assignment of error is overruled. Stark County, Case No. 10-CA-166 4

{¶6} For the foregoing reasons, the judgment of the Stark County Court of

Common Pleas is affirmed.

By: Delaney, J.

Gwin, P.J. and

Hoffman, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. WILLIAM B. HOFFMAN [Cite as State v. Stewart, 2011-Ohio-1911.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : MICHAEL STEWART : : Defendant-Appellant : Case No. 10-CA-166 :

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

Appellant.

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN