[Cite as State v. Berrien,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLINTON COUNTY

STATE OF OHIO, : CASE NO. CA2015-02-004 Plaintiff-Appellee, : OPINION : 10/26/2015 - vs - :

JUSTIN M. BERRIEN, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS Case No. CRI2005-5069

Richard W. Moyer, Clinton County Prosecuting Attorney, 103 East Main Street, Wilmington, Ohio 45177, for plaintiff-appellee

Justin M. Berrien, 918 South Wittenberg Avenue, Springfield, Ohio 45506, defendant- appellant, pro se

S. POWELL, J.

{¶ 1} Defendant-appellant, Justin M. Berrien, appeals from a decision of the Clinton

County Court of Common Pleas denying his motion for resentencing. For the reasons stated

below, we affirm.

{¶ 2} In 2005, a jury found appellant guilty of attempted murder, aggravated robbery,

and felonious assault. Appellant was then sentenced to a ten-year term of imprisonment, a

postrelease control period of "up to" five years, and ordered to pay all costs of prosecution. Clinton CA2015-02-004

Appellant appealed his convictions and sentence. This court affirmed appellant's convictions

in State v. Berrien, 12th Dist. Clinton No. CA2005-08-018,

, but remanded

the case for resentencing pursuant to State v. Foster,

,

.

Upon remand, in 2007, the trial court resentenced appellant to a ten-year term of

imprisonment, a postrelease control period of five years, and ordered appellant to pay all

costs of prosecution. Several years later, in 2014, appellant filed a pro se "motion for re-

sentencing based on void judgment." The trial court denied appellant's motion.

{¶ 3} Appellant now appeals from the trial court's decision, raising two assignments

of error for review.

{¶ 4} Assignment of Error No. 1:

{¶ 5} THE TRIAL COURT ERRED AS A MATTER OF LAW, AND ABUSED ITS

DISCRETION, WHEN IT FAILED TO RESENTENCE APPELLANT AS STATUTORILY

REQUIRED, WHEN IT FAILED TO NOTIFY THE DEFENDANT-APPELLANT AT THE

"SENTENCING HEARING," THAT THE FAILURE TO PAY COURT COSTS COULD

RESULT IN THE TRIAL COURT ORDERING THE DEFENDANT TO PERFORM

COMMUNITY SERVICE PURSUANT TO R.C. 2947.23(A)(1)(a).

{¶ 6} Appellant argues his sentence is void because the trial court imposed court

costs without notifying him that if he fails to pay court costs, he could be ordered to perform

community service pursuant to R.C. 2947.23. We disagree.

{¶ 7} Where a criminal defendant, subsequent to his direct appeal, files a motion

seeking vacation or correction of his sentence on the basis that his constitutional rights have

been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21.

State v. Reynolds,

(1997), syllabus. While not captioned as such,

appellant's motion for resentencing is a petition for postconviction relief as it was filed

subsequent to his direct appeal and claimed his sentence was void and should be vacated. -2- Clinton CA2015-02-004

{¶ 8} A postconviction proceeding is not an appeal of a criminal conviction, but

rather, a collateral civil attack on a criminal judgment. State v. Calhoun,

(1999); State v. Bayless, 12th Dist. Clinton Nos. CA2013-10-020 and CA2013-10-021,

. "In reviewing an appeal of postconviction relief proceedings, this

court applies an abuse of discretion standard." State v. Wagers, 12th Dist. Preble No.

CA2011-08-007,

, ¶ 15. The term "abuse of discretion" connotes more than

an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable. State v. Hancock,

,

, ¶ 130.

{¶ 9} A trial court may dismiss a postconviction relief petition on the basis of res

judicata. State v. Davis, 12th Dist. Butler No. CA2012-12-258,

. The

doctrine of res judicata provides that "a final judgment of conviction bars a convicted

defendant who was represented by counsel 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." State v. Perry,

(1967), paragraph nine of the syllabus.

{¶ 10} At the time of appellant's sentencing, R.C. 2947.23(A)(1) required a trial court to

notify the defendant that failure to pay mandatory court costs could result in the trial court

ordering the defendant to perform community service. This court has held that under this

version of the statute, the remedy for failing to provide the community-service notification is to

vacate the imposition of costs and remand the case for the proper notification. State v.

Weathers, 12th Dist. Butler No. CA2012-02-036,

. However, "res

judicata bars a defendant from arguing that he is entitled to resentencing for not being

informed of the possibility of community service if that defendant did not raise the issue on

direct appeal." State v. Graham, 12th Dist. Warren No. CA2014-04-062,

, ¶ -3- Clinton CA2015-02-004

16, citing State v. Collins, 12th Dist. Warren No. CA2012-11-115,

. Res

judicata bars a defendant from making this argument for resentencing because a failure to

advise of court costs does not render the sentence void but is instead only reversible error.

Id. at ¶ 14.

{¶ 11} In the 2005 sentencing entry, the trial court did not inform appellant that failing

to pay mandatory court costs could result in the trial court ordering him to perform community

service. The court also did not provide this notification in the 2007 resentencing entry. We

are unable to review whether appellant was advised of the community service notification at

the sentencing hearings because he has not submitted a transcript of the hearings.

However, appellant did not assign this as error in his direct appeal. Therefore, appellant is

barred by res judicata from arguing the trial court did not properly notify him regarding the

community service notification. Accordingly, appellant's first assignment of error is overruled.

{¶ 12} Assignment of Error No. 2:

{¶ 13} THE TRIAL COURT ERRED AS A MATTER OF LAW, AND ABUSED ITS

DISCRETION, WHEN IT FAILED TO RESENTENCE APPELLANT AS STATUTORILY

REQUIRED, WHEN THE TRIAL COURT FAILED TO COMPLY WITH R.C. 2929.19(B)(3)(c)

THROUGH (e), AND R.C. 2967.28 WHEN IT IMPOSED THE WRONG POST-RELEASE

CONTROL, AND GAVE THE APPELLANT FIVE (5) YEARS PRC, INSTEAD OF FIVE (5)

YEARS MANDATORY AS REQUIRED, AND FAILED TO STATE THE MANDATORY

NATURE OF PRC. SEE: STATE V. SMITH, 2012 OHIO APP. LEXIS 5176.

{¶ 14} Appellant argues the trial court erred in failing to specify that postrelease control

was mandatory in the judgment entry. We disagree.

{¶ 15} As stated above, we review postconviction relief petitions under an abuse of

discretion standard. Vore,

. R.C. 2929.19 provides that when a court

imposes a sentence that includes postrelease control, the court must notify the offender at -4- Clinton CA2015-02-004

the sentencing hearing (1) that he will be supervised pursuant to R.C. 2967.28 upon his

release from prison, and (2) that violation of a condition of postrelease control may result in

the imposition by the parole board of a prison term of up to one-half of the prison term

originally imposed upon the offender. R.C. 2929.19(B)(2)(c) and (e); State v. Bloomer,

,

. If a court imposes a prison term for a first-degree

felony, an offender shall be subject to a postrelease control period of five years. R.C.

2967.28(B)(1).

{¶ 16} In the present case, appellant was convicted of two first-degree felonies and

one second-degree felony, and therefore, was subject to a postrelease control period of five

years. In the 2005 sentencing entry, the trial court incorrectly stated that appellant would be

subject to a postrelease control period of "up to" five years. However, on remand the trial

court recognized this error and correctly advised appellant regarding postrelease control.

Specifically, in the 2007 resentencing entry, the trial court stated appellant shall be subject to

a postrelease control period of five years and upon a violation of a condition of postrelease,

the parole board may impose a prison term of up to one-half of the prison term originally

imposed upon the offender.1 Therefore, the trial court properly imposed and advised

appellant of postrelease control and that he would be subject to a postrelease control term of

five years. Accordingly, appellant's second assignment of error is also overruled.

{¶ 17} Judgment affirmed.

PIPER, P.J., and M. POWELL, J., concur.

1. As noted in the first assignment of error, appellant has not filed a transcript of the sentencing hearing and therefore we are unable to review whether the trial court orally notified him of the postrelease control provisions. However, "an appealing party bears the burden of showing error in the underlying proceeding by reference to matters in the record, the appellant has a duty to provide a transcript for appellate review." State v. Snead, 12th Dist. Clermont No. CA2014-01-014,

; Knapp v. Edwards Laboratories,

(1980); see App.R. 9(B); see also App.R. 16(A)(7). "Where portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus has no choice but to presume the regularity or validity of the lower court's proceedings and affirm."

; Snead at fn 1. -5-