[Cite as State v. Gooden,

.]

IN THE COURT OF APPEALS

NINTH APPELLATE DISTRICT

SUMMIT COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. CA-25677 - vs - :

JESSE L. GOODEN, :

Defendant-Appellant. :

Criminal Appeal from the Court of Common Pleas, Case No. CR 08 10 3381.

Judgment: Affirmed in part, reversed in part, and remanded.

Sherri Bevan Walsh, Summit County Prosecutor, and Richard S. Kasay, Assistant Prosecutor, Appellate Division, Summit County Safety Building, 53 University Avenue, 6th Floor, Akron, OH 44308 (For Plaintiff-Appellee).

Jesse L. Gooden, pro se, PID: 571-717, Richland Correctional Institution, P.O. Box 8107, Mansfield, OH 44901 (Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J., Eleventh Appellate District, sitting by assignment.

{¶1} Appellant, Jesse L. Gooden, appeals the judgment of the Summit County

Court of Common Pleas denying appellant’s “Motion for Proper Sentencing Order and

Final Order.” We affirm in part, reverse in part, and remand the matter for further

proceedings.

{¶2} In October 2008, appellant and a male passenger were sitting in a vehicle

at a McDonald’s parking lot in Akron, Ohio. Detective Nicholas Gray, a plainclothes officer working with the Summit County Drug Unit, was watching the area in a truck

across the street. The detective observed the two men in the vehicle with its dome light

illuminated, pulled into McDonald’s, and parked next to the vehicle. From his truck,

Detective Gray looked into the vehicle and observed the passenger with his left hand

closed and the driver with a clear, plastic baggy in his left hand.

{¶3} Detective Gray radioed Detective Michael Yavanno, another officer with

the drug unit, for backup. Detective Yavanno arrived within seconds in an unmarked

SUV and parked behind the suspect vehicle. Both officers approached the vehicle and

addressed the occupants. Although Detective Gray advised appellant to keep the car in

park, appellant suddenly reversed the vehicle, striking Detective Yavanno’s SUV.

Detective Gray drew his firearm, identified himself as a police officer, and ordered

appellant to stop. Instead of stopping, Detective Gray stated appellant drove the vehicle

directly at him. In an effort to stop the vehicle or cause it to change direction, the

detective fired four rounds at the car. The vehicle immediately veered away from the

officer’s path, jumped a curb in the parking lot, and sped off. Appellant was eventually

apprehended and arrested.

{¶4} On October 23, 2009, appellant was indicted on one count of felonious

assault against a peace officer, in violation of R.C. 2903.11(A)(2), a felony of the second

degree (“Count One”); one count of failure to comply with the order or signal of a police

officer, in violation of R.C. 2921.331(B), a felony of the third degree (“Count Two”); and

one count of vandalism, in violation of R.C. 2909.05(B)(2), a felony of the fifth degree

(“Count Three”). Later, on November 10, 2008, the grand jury filed a supplemental

indictment charging appellant with an additional count of felonious assault against a

2 peace officer, in violation of R.C. 2903.11(A)(2), a felony of the first degree (“Count

Four”). Appellant pleaded not guilty to the charges and the matter proceeded to a jury

trial. Prior to trial, the trial court dismissed Count One of the indictment.

{¶5} After trial, the jury returned a verdict of guilty on each remaining count

and, after a sentencing hearing, the trial court imposed a prison term of eight years for

the conviction on felony-one felonious assault on a peace officer; one year for the

conviction on felony-three failure to comply; and one year for the conviction on felony-

five vandalism. Appellant’s sentences for felonious assault on a peace officer and

failure to comply were ordered to run consecutively with each other, and the sentence

for vandalism to run concurrently with that term for an aggregate sentence of nine

years. Appellant appealed his conviction and, in State v. Gooden, 9th Dist. No. 24896,

, this court affirmed the jury’s verdict.1

{¶6} On October 8, 2010, appellant filed a “Motion for Proper Sentencing Order

and Final Order.” On October 20, 2010, the trial court overruled the motion. Appellant

now appeals, alleging the following assignment of error:

{¶7} “The Trial Court erred by improperly sentencing Appellant on (Count 4) of

the Indictment for which the Jury never found him Guilty of and issue a final appealable

order.” (Sic.)

{¶8} Appellant argues his sentence is void because the jury convicted him of

felonious assault as designated in Count One, which was dismissed, but he was

1. We note that in Gooden, this court did not mention the supplemental indictment and the court’s dismissal of Count One. Instead, this court addressed appellant’s charges as they existed after the court’s dismissal of Count One in the original indictment and, in so doing, mistakenly referred to Count Four as Count One. See id. at ¶13. This error, however, was merely clerical and therefore had no bearing on our analysis or the outcome of the case.

3 sentenced to felonious assault as designated in Count Four. Because the court

sentenced him on a crime of which he was not convicted, appellant maintains the

court’s judgment has no binding legal effect. We do not agree.

{¶9} Appellant was originally indicted on two counts of felonious assault against

a peace officer, in violation of R.C. 2903.11(A)(2). Count One alleged a felony of the

second degree and Count Four, a felony of the first degree. Statutorily, however,

felonious assault on a peace officer can only be a first-degree felony. While the record

does not disclose the specific justification for the court’s dismissal of Count One, one

can reasonably surmise it did so because it did not reflect the proper felony level as

codified under R.C. 2903.11(D)(1)(a). (“If the victim of a violation of [R.C. 2903.11(A)] is

a peace officer *** felonious assault is a felony of the first degree.”) Because there is no

felony-two felonious assault on a peace officer codified in the Ohio Revised Code, the

jury could not have found appellant guilty on the dismissed count. In other words,

Count One of the original indictment was a nullity ab initio.

{¶10} We acknowledge that the verdict form improperly labeled Count Four as

Count One. Nevertheless, both the dismissed count and the remaining count charged

appellant with the same nominal crime. As a result, it cannot be said appellant was

convicted of an offense for which he was not indicted. Hence, the trial court’s failure to

refer to the correct count in the verdict forms, even if an error, did not deprive it of

jurisdiction to impose sentence on the otherwise proper verdict. State ex rel. Dothard v.

Warden, Trumbull Correctional Inst., 11th Dist. No. 2002-T-0145,

, at ¶9

(even assuming a verdict form includes an error, such an error is procedural and

therefore does not affect the court’s jurisdiction to impose sentence on the verdict). The

4 record indicates that the jury found appellant guilty of felonious assault and also found

the additional aggravating element that the victim was working as a peace officer at the

time the felonious assault occurred. The substantive aspects of the verdict form

demonstrate appellant was properly convicted of felony-one felonious assault on a

peace officer. We therefore hold the trial court had jurisdiction to enter sentence on that

charge.

{¶11} In State v. Martin, 9th Dist. No. 25534,

, this court held

that a defendant who fails to raise a challenge to a verdict form in his direct appeal is

barred by res judicata from raising the argument in a subsequent proceeding. Id. at ¶7.

See, also, State v. Evans, 9th Dist. No. 10CA0027,

, at ¶9 (holding that

“because [the appellant] could have raised issues related to the jury verdict forms in his

direct appeal, he is foreclosed from raising the issue at this time.”) As appellant could

have but failed to challenge the verdict form on his direct appeal, he is now precluded

from raising the issue. Appellant’s assignment of error is therefore overruled.

{¶12} Finally, although appellant does not raise the issue of post-release control,

we shall sua sponte consider the issue because it impacts his substantial rights. See

Crim.R. 52; see, also, State v. Simpson, 8th Dist. No. 88301,

,

discretionary appeal not allowed by

,

. A review of

the record demonstrates the trial court, in sentencing appellant, failed to properly advise

him of post-release control during the sentencing hearing and in its judgment entry.

{¶13} A defendant convicted of a first-degree felony must serve a mandatory

five-year term of post-release control. R.C. 2967.28(B)(1). At the sentencing hearing,

however, the trial court stated: “*** upon your release you will be placed on post-release

5 control. That could be up to five years.” This statement falsely indicates appellant may

be subject to a term of post-release control anywhere between one and five years. The

trial court was required to notify appellant of the specific length of post-release control

and alert him of its nondiscretionary nature.

{¶14} Furthermore, although the trial court’s sentencing entry states appellant

will serve five years of post-release control after his release, it failed to advise appellant

that if he violates post-release control, the parole board could impose an additional

prison term of up to one-half of his prison sentence. “Both the period of postrelease

control and the possible violation sanctions must be ‘included in the judgment entry

journalized by the court.’” State v. Leasure, 9th Dist. No. 25596,

,

quoting State v. Singleton,

,

.

{¶15} “[W]hen a judge fails to impose statutorily mandated postrelease control

as part of a defendant’s sentence, that part of the sentence is void and must be set

aside.” State v. Fischer,

,

. Only the

offending portion of the sentence is subject to correction, however, and the remainder of

the sentence remains valid. Id. at ¶17. For offenders sentenced after July 11, 2006, a

trial court must employ the procedures set forth in R.C. 2929.191 for correcting errors in

post-release control notification. R.C. 2929.191 applies to sentenced offenders who

have not yet been released from prison and who fall into at least one of three

categories, namely: (1) those who did not receive proper notice at the sentencing

hearing that they would be subject to post-release control; (2) those who did not receive

proper notice that the parole board could impose a prison term for a violation of post-

release control; or (3) those who did not receive both of these statutorily-mandated

6 notices incorporated into their sentencing entries. See R.C. 2929.191(A) and (B); see,

also, State v. McKinney, 11th Dist. No. 2010-T-0011,

, at ¶30.

{¶16} Appellant was sentenced on July 9, 2009, well after the enactment of R.C.

2929.191. Moreover, the transcript of proceedings and the trial court’s judgment entry

reflect the trial court’s notification failed to meet the requirements of R.C. 2967.28. We

therefore remand this matter for the limited purpose of including proper notification of

post-release control pursuant to the procedures set forth in R.C. 2929.191.

{¶17} Although appellant’s assigned error is not well taken, the trial court’s

judgment denying appellant’s motion for proper sentencing order is reversed and the

matter is remanded for proper post-release control notification pursuant to the

procedures set forth under R.C. 2929.191.

TIMOTHY P. CANNON, P.J., Eleventh Appellate District, Sitting by assignment,

DIANE V. GRENDELL, J., Eleventh Appellate District, Sitting by assignment,

concur.

7