[Cite as State v. Fryer,

.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : -vs- : : Case No. 15-CA-00013 DOUGLAS L. FRYER : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Perry County Court of Common Pleas, Case No. 06-CR- 0060

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 2, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSPEH A. FLAUTT DOUGLAS L. FRYER PRO SE Perry County Prosecuting Attorney #A548-092 111 N. High Street, Box 569 Box 57 New Lexington, OH 43764 Marion, OH 43301 [Cite as State v. Fryer,

.]

Gwin, P.J.

{¶1} Appellant Douglas L. Fryer ["Fryer"] appeals the May 20, 2015 Judgment

Entry of the Perry County Court of Common Pleas denying his "Motion for Hearing."

Facts and Procedural History

{¶2} Fryer pleaded guilty to fifteen counts of Gross Sexual Imposition and the

count of Rape on March 20, 2007.

{¶3} On April 17, 2007, Fryer was sentenced by the trial court and was found to

be a sexual predator. This was pursuant to an agreement between the state and Fryer.

The termination judgment entry was filed by the trial court on April 18, 2007.

{¶4} The court reviewed the Notice of Registration Duties of Sexually Oriented

Offender or Child–Victim Offender. The form was signed by Fryer and filed with the

court on April 7, 2007. Fryer did not file a direct appeal on any issues from either

hearing.

{¶5} On March 12, 2014, Fryer filed a Motion to Correct Sentence. A request

for an evidentiary hearing on Fryer’s classification as a sex offender was made therein.

By entry filed June 6, 2014, the court granted the motion in part in accordance with

Criminal Rule 32(C) and the Ohio Supreme Court’s decisions in State v. Baker,

,

(2008) and State v. Lester,

, 2011–

Ohio–5204,

. However, the trial court denied Fryer’s request for an

evidentiary hearing. The nunc pro tunc termination entry was filed June 18, 2014.

{¶6} Fryer appealed the trial court's denial of his request for an evidentiary

hearing. State v. Fryer, 5th Dist. Perry No. 14-CA-17,

. ["Fryer I"]. In

Fryer I, appointed counsel filed an appellate brief. Fryer I, ¶9 Appointed counsel raised Perry County, Case No. 15-CA-00013 3

as his sole assignment of error, "“I. THE TRIAL COURT ERRED IN REFUSING TO

HOLD AN EVIDENTIARY HEARING AS TO APPELLANT’S STATUS AS A SEXUAL

PREDATOR.” Fryer I, ¶7. Fryer himself filed a pro se brief, which in the interest of

justice this Court considered. Fryer I, ¶12. Fryer raised as his sole assignment of error,

“I. THE TRIAL COURT ERREED [SIC.] LIN [SIC.] TRYING AND CONVICTING OF

CRIMES THAT WERE NOT SPECIFIC TO DISTINGUISH DIFFERENT CRIMES

CHARGED DUE TO DUPLICITOUS INDICTMENT.” Fryer I, ¶13.

{¶7} This Court overruled counsel's and Fryer's pro se assignments of error

and affirmed the June 6, 2014 judgment entry of the Perry County Court of Common

Pleas. Fryer I, ¶26.

{¶8} On May 1, 2015, Fryer pro se filed a "Motion for Hearing" contending: he

was not notified of his right to appeal during the original sentencing hearing; the trial

court failed to properly notify him concerning post release controls; the trial court failed

to conduct the classification hearing in accordance with R.C.2950.09(B)(2); and the

nunc pro tunc judgment violates Crim.R. 32(C), State v. Baker,

,

(2008) and State v. Lester,

, 2011–Ohio–5204,

.

{¶9} The state filed a response on May 18, 2015. By judgment entry filed May

20, 2015, the trial court denied Fryer's motion.

Assignments of error

{¶10} Fryer raises four assignments of error,

{¶11} "I. THE TRIAL COURT ERRED WHEN DISREGARDING STATUTORY

REQUIREMENTS WHEN IT DID NOT COMPLY WITH 32(B). Perry County, Case No. 15-CA-00013 4

{¶12} "II. THE TRIAL COURT ERRED WHEN IT DID NOT MAKE THE

FINDINGS OR ADJUDICATION OF GUILT IN THE RECORDS.

{¶13} "III. THE TRIAL COURT ERRED WHEN IT DID NOT COMPLY WITH R.C.

2929.191 BY NOT HOLDING A HEARING WITH THE DEFENDANT PRESENT.

{¶14} "IV. THE TRIAL COURT ERRED WHEN THE COURT DISREGARDED

AND FAILED TO EXERCISE ITS STATUTORILY REQUIRED DUTIES DURING THE

DEFENDANTS [SIC.] ALLEGED CLASSIFICATION HEARING."

Pro se Appellants

{¶15} We understand that Fryer has filed this appeal pro se. Nevertheless, “like

members of the bar, pro se litigants are required to comply with rules of practice and

procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-

3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022,

.

We also understand that “an appellate court will ordinarily indulge a pro se litigant where

there is some semblance of compliance with the appellate rules.” State v. Richard, 8th

Dist. No. 86154,

, ¶4 (internal quotation omitted).

{¶16} In State v. Hooks,

,

,

(2001), the Supreme Court noted, “a reviewing court cannot add matter to the

record before it that was not a part of the trial court's proceedings, and then decide the

appeal on the basis of the new matter. See, State v. Ishmail,

,

(1978).” It is also a longstanding rule "that the record cannot be enlarged by

factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist.No. 411,

(Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards,

,

(1963). New material and factual assertions contained in Perry County, Case No. 15-CA-00013 5

any brief in this court may not be considered. See, North v. Beightler,

,

,

, quoting Dzina v. Celebrezze,

,

,

. Therefore, we have disregarded facts and

documents in both briefs that are outside of the record.

{¶17} In the interests of justice, we shall attempt to consider Fryer’s assignments

of error.

I.

{¶18} In Fryer's first assignment of error, he argues that the trial court did not

inform him of his right to appeal his conviction.

{¶19} Under Crim.R. 32(B), a trial court is required to notify the defendant of his

appellate rights. At the plea hearing, the court asked the defendant if he understood

that he was waiving all the rights aside of his right to appeal within thirty (30) days.

Further, Fryer signed a plea of guilty form filed with the court on March 20, 2007. Included

in the Plea of Guilty executed by Fryer is the language: "I understand my right to

appeal a maximum sentence, my other limited appellate rights and that any appeal

must be filed within thirty (30) days."

{¶20} Upon review of the record, we conclude that any harm that resulted from

the trial court's failure to notify Fryer about his appellate rights has been remedied by

this subsequent appeal. See, Fryer I. See, State v. Finch, 5th Dist. Licking No. 11 CA 6,

; State v. Thompson, 4th Dist. Washington Nos. 10CA5, 10CA13,

. In Fryer I not only did Fryer have appointed counsel to file a brief, he

himself filed a brief, which this Court considered.

{¶21} Fryer's first assignment of error is overruled. Perry County, Case No. 15-CA-00013 6

II.

{¶22} In his second assignment of error, Fryer contends the trial court did not

properly make a finding of guilty.

{¶23} In State v. Baker,

,

,

,

the Ohio Supreme Court held that a "judgment of conviction is a final appealable order

under R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding

of the court upon which the conviction is based; (2) the sentence; (3) the signature of

the judge; and (4) entry on the journal by the clerk of court."

Baker was subsequently

modified and clarified in State v. Lester,

,

, 2011–

Ohio– 5204, wherein the Ohio Supreme Court held, at paragraph one of the syllabus: “A

judgment of conviction is a final order subject to appeal under R.C. 2505. 02 when it

sets forth ( 1) the fact of the conviction, ( 2) the sentence, ( 3) the judge's signature, and

( 4) the time stamp indicating the entry upon the journal by the clerk.”

{¶24} Baker, interpreting the plain language of Crim. R.32(C), never held that

the phrase “defendant was convicted” was required to be in the sentencing entry. There

is also no such requirement in former Crim.R. 32(C) or in former Crim.R. 32(B). Lester,

dealing with a different problem, held that a sentencing entry that included the fact of

conviction, but that did not describe the manner of conviction, i.e., whether there was a

jury trial or a plea agreement, was also a final appealable order.

. Lester

also held that the defendant could obtain a nunc pro tunc corrected sentencing entry, if

desired, so that the manner of conviction could be part of the record. State v. Fowler,

7th Dist. Mahoning No. 14 MA 124,

, ¶12. Perry County, Case No. 15-CA-00013 7

{¶25} The entry of a plea of guilty is a grave decision by an accused to dispense

with a trial and allow the state to obtain a conviction without following the otherwise

difficult process of proving his guilt beyond a reasonable doubt. See Machibroda v.

United States,

,

,

(1962). A plea of guilty

constitutes a complete admission of guilt. Crim. R. 11(B)(1). “By entering a plea of

guilty, the accused is not simply stating that he did the discreet acts described in the

indictment; he is admitting guilt of a substantive crime.” United v. Broce,

,

,

(1989).

{¶26} Unlike a plea of no contest, which requires a trial court to make a finding

of guilt, State v. Bird,

,

(1998), a plea of guilty

requires no finding or verdict. Kercheval v. United States,

,

,

(1927) (“A plea of guilty differs in purpose and effect from a mere

admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury, it

is conclusive. More is not required; the court has nothing to do but give judgment and

sentence”).

{¶27} In the case at bar, Fryer signed a written plea of guilty. Fryer pled guilty in

open court. The trial court accepted Fryer's guilty plea and pronounced sentenced. The

nunc pro tunc sentencing entry in this case contains the guilty plea, the sentence, and

the signature of the judge, and was a final appealable order pursuant to former Crim.R.

32(B).

{¶28} Fryer's second assignment of error is overruled. Perry County, Case No. 15-CA-00013 8

III.

{¶29} In his third assignment of error, Fryer argues the trial court failed to

properly notify him about post release control.

{¶30} "When sentencing a felony offender to a term of imprisonment, a trial court

is required to notify the offender at the sentencing hearing about post release control

and is further required to incorporate that notice into its journal entry imposing

sentence." State v. Jordan,

,

,

,

paragraph 2 of the syllabus. In Jordan, the Supreme Court found that the trial court

erred by failing to notify the defendants about post release control at the sentencing

hearings, despite incorporating that notice into their respective sentencing entries. Id. at

¶17.

{¶31} R.C. 2929.19 requires a trial court to conduct a sentencing hearing in

every felony case. At the sentencing hearing before a court can impose a prison

sentence it must in relevant part,

(c) Notify the offender that the offender will be supervised under

section 2967.28 of the Revised Code after the offender leaves prison if the

offender is being sentenced for a felony of the first degree or second

degree, for a felony sex offense, or for a felony of the third degree that is

not a felony sex offense and in the commission of which the offender

caused or threatened to cause physical harm to a person. This division

applies with respect to all prison terms imposed for an offense of a type

described in this division, including a term imposed for any such offense

that is a risk reduction sentence, as defined in section 2967.28 of the Perry County, Case No. 15-CA-00013 9

Revised Code. If a court imposes a sentence including a prison term of a

type described in division (B)(2)(c) of this section on or after July 11, 2006,

the failure of a court to notify the offender pursuant to division (B)(2)(c) of

this section that the offender will be supervised under section 2967.28 of

the Revised Code after the offender leaves prison or to include in the

judgment of conviction entered on the journal a statement to that effect

does not negate, limit, or otherwise affect the mandatory period of

supervision that is required for the offender under division (B) of section

2967.28 of the Revised Code. Section 2929.191 of the Revised Code

applies if, prior to July 11, 2006, a court imposed a sentence including a

prison term of a type described in division (B)(2)(c) of this section and

failed to notify the offender pursuant to division (B)(2)(c) of this section

regarding post-release control or to include in the judgment of conviction

entered on the journal or in the sentence a statement regarding post-

release control.

(d) Notify the offender that the offender may be supervised under

section 2967.28 of the Revised Code after the offender leaves prison if the

offender is being sentenced for a felony of the third, fourth, or fifth degree

that is not subject to division (B)(2)(c) of this section. This division applies

with respect to all prison terms imposed for an offense of a type described

in this division, including a term imposed for any such offense that is a risk

reduction sentence, as defined in section 2967.28 of the Revised Code.

Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a Perry County, Case No. 15-CA-00013 10

court imposed a sentence including a prison term of a type described in

division (B)(2)(d) of this section and failed to notify the offender pursuant

to division (B)(2)(d) of this section regarding post-release control or to

include in the judgment of conviction entered on the journal or in the

sentence a statement regarding post-release control.

(e) Notify the offender that, if a period of supervision is imposed

following the offender’s release from prison, as described in division

(B)(2)(c) or (d) of this section, and if the offender violates that supervision

or a condition of post release control imposed under division (B) of section

2967.131 of the Revised Code, the parole board may impose a prison

term, as part of the sentence, of up to one-half of the stated prison term

originally imposed upon the offender. If a court imposes a sentence

including a prison term on or after July 11, 2006, the failure of a court to

notify the offender pursuant to division (B)(2)(e) of this section that the

parole board may impose a prison term as described in division (B)(2)(e)

of this section for a violation of that supervision or a condition of post-

release control imposed under division (B) of section 2967.131 of the

Revised Code or to include in the judgment of conviction entered on the

journal a statement to that effect does not negate, limit, or otherwise affect

the authority of the parole board to so impose a prison term for a violation

of that nature if, pursuant to division (D)(1) of section 2967.28 of the

Revised Code, the parole board notifies the offender prior to the offender’s

release of the board’s authority to so impose a prison term. Section Perry County, Case No. 15-CA-00013 11

2929.191 of the Revised Code applies if, prior to July 11, 2006, a court

imposed a sentence including a prison term and failed to notify the

offender pursuant to division (B)(2)(e) of this section regarding the

possibility of the parole board imposing a prison term for a violation of

supervision or a condition of post-release control.

(Emphasis added). Additionally R.C. 2967.28 provides,

(B) Each sentence to a prison term for a felony of the first degree,

for a felony of the second degree, for a felony sex offense, or for a felony

of the third degree that is an offense of violence and is not a felony sex

offense shall include a requirement that the offender be subject to a period

of post-release control imposed by the parole board after the offender’s

release from imprisonment. This division applies with respect to all prison

terms of a type described in this division, including a term of any such type

that is a risk reduction sentence. If a court imposes a sentence including a

prison term of a type described in this division on or after July 11, 2006,

the failure of a sentencing court to notify the offender pursuant to division

(B)(2)(c) of section 2929.19 of the Revised Code of this requirement or to

include in the judgment of conviction entered on the journal a statement

that the offender’s sentence includes this requirement does not negate,

limit, or otherwise affect the mandatory period of supervision that is

required for the offender under this division. Section 2929.191 of the

Revised Code applies if, prior to July 11, 2006, a court imposed a

sentence including a prison term of a type described in this division and Perry County, Case No. 15-CA-00013 12

failed to notify the offender pursuant to division (B)(2)(c) of section

2929.19 of the Revised Code regarding post release control or to include

in the judgment of conviction entered on the journal or in the sentence

pursuant to division (D)(1) of section 2929.14 of the Revised Code a

statement regarding post-release control.

***

(C) Any sentence to a prison term for a felony of the third, fourth, or

fifth degree that is not subject to division (B)(1) or (3) of this section shall

include a requirement that the offender be subject to a period of post

release control of up to three years after the offender’s release from

imprisonment, if the parole board, in accordance with division (D) of this

section, determines that a period of post release control is necessary for

that offender. This division applies with respect to all prison terms of a

type described in this division, including a term of any such type that is a

risk reduction sentence. Section 2929.191 of the Revised Code applies if,

prior to July 11, 2006, a court imposed a sentence including a prison term

of a type described in this division and failed to notify the offender

pursuant to division (B)(2)(d) of section 2929.19 of the Revised Code

regarding post-release control or to include in the judgment of conviction

entered on the journal or in the sentence pursuant to division (D)(2) of

section 2929.14 of the Revised Code a statement regarding post-release

control. Pursuant to an agreement entered into under section 2967.29 of

the Revised Code, a court of common pleas or parole board may impose Perry County, Case No. 15-CA-00013 13

sanctions or conditions on an offender who is placed on post-release

control under this division.

(Emphasis added). As we noted in State v. Miller, 5th Dist. Stark No. 2013CA00115,

,

In the event post release control is not correctly imposed, R.C.

2929.191 provides a procedure to correct the error in the trial court’s

sentence. The statute applies to sentenced offenders who are still in

prison and were either not notified at their sentencing hearings of the

applicable term of post release control or did not have such notice

incorporated into their sentencing entries. R.C. 2929.191(A) and (B).

For such offenders, R.C. 2929.191 provides that trial courts may,

after holding a hearing, issue a nunc pro tunc entry that includes

notification of the applicable term of post release control. The court’s

placement of the nunc pro tunc entry on the journal has the same effect as

if the court had included the correct notification in the original sentencing

entry and had notified the offender of the applicable term of post release

control at the original sentencing hearing.

The offender has the right to

be present at the hearing, but the court may permit the offender to appear

at the hearing by video conferencing equipment. R.C. 2929.191(C). See,

State v. Singleton,

, 2009–Ohio–6434,

. Perry County, Case No. 15-CA-00013 14

{¶32} Pursuant to State v. Fisher,

, 2011–Ohio–6238,

, “[t]he new sentencing hearing to which an offender is entitled * * * is limited

to proper imposition of post release control.” Fischer at paragraph two of the syllabus.

{¶33} Post release control constitutes a portion of the maximum penalty. State v.

Jones, 5th Dist. Nos. 10CA75, 10CA76, 10CA77, 2011–Ohio–1202. In State v. Clark,

,

, 2008–Ohio–3748, the Ohio Supreme Court

concluded that the right to be informed of the maximum possible penalty and the effect

of the plea are subject to the substantial compliance test. 119 Ohio St.3d at 244,

, 2008–Ohio–3748 at ¶ 31. (Citations omitted). We review the trial court’s

colloquy under the substantial-compliance standard because the notification of post

release control impacts the right to be informed of the maximum penalty. State v. Harris,

5th Dist. Licking No. 12 CA 82,

. Under the substantial-compliance

standard, we analyze the totality of circumstances.

{¶34} In the case at bar, the trial court informed Fryer during his sentencing

hearing,

The Court further informs you of [sic.] this time that periods of

supervision by adult parole supervision is mandatory in this case and the

sentenced [sic.] to prison for a felony 1 or felony sex offense, which would

be the situation here after my prison release I will have five years of post

release control under conditions determined by the Parole Board. If am

sentenced to prison for a felony 2 or a felony 3 which involves causing or

threatening physical harm, [sic.] states you will have mandatory post

release control of three years. If you receive prison for a felony 3, 4, or 5, Perry County, Case No. 15-CA-00013 15

[sic.] may be given up to three years of post release control. A violation of

any post release control rule or condition can result in a more restrictive

sanction under post release control, and increased duration of supervision

or control, up to the maximum term and re-imprisonment even though you

have served the entire stated prison term imposed upon you by this Court

for all offenses. If you violate conditions of supervision while under post

release control, the Parole Board could return you to prison for up to nine

months for each violation, for a total of 1/2 of the originally stated prison

term. If violation is a new felony, you could receive a prison term of the

greater of one year or the time remaining on post release control, in

addition to any other prison term imposed for the offense. Do you

understand the Court's sentence at this time?

[Fryer]: Yes, Your Honor.

Sentencing Hearing, Apr. 17, 2007 at 7-8. The "Nunc Pro Tunc Termination Judgment

Entry," filed June 18, 2014, states in relevant part,

The Court has further notified the defendant that post release

control of five (5) years is mandatory in this case as well as the

consequences of violating conditions of post release control imposed by

the Parole Board under Section 2967.28 Revised Code, which includes re-

imprisonment for up to a maximum of one-half of my originally stated term.

As part of this sentence, the defendant is ORDERED to serve any term of

post release control imposed by the Parole Board, and any prison term

imposed for violation of that post release control. Perry County, Case No. 15-CA-00013 16

{¶35} We find that the trial court substantially complied with the notification

requirements regarding post release controls under R.C. 2919.19 and R.C. 2967.28.

See, State v. Harris, 5th Dist. Licking No. 12 CA 82,

. Although a

sentencing court must comply with statutory requirements, the Supreme Court has not

prescribed a “magic words” test for imposing post release control. This is consistent

with other areas of criminal sentencing where appellate courts have held that trial courts

need not recite specific magic words in imposing a sentence. See, State v. Williams,

10th Dist. Franklin No. 10AP-922,

, ¶19; See also, State v. Bonnell,

,

,

, ¶29 (“a word-for-word recitation of the

language of the statute [R.C. 2929.14(C)(4)] is not required, and as long as the

reviewing court can discern that the trial court engaged in the correct analysis and can

determine that the record contains evidence to support the findings, consecutive

sentences should be upheld”).

{¶36} Fryer's third assignment of error is overruled.

IV.

{¶37} We interpret Fryer's fourth assignment of error to be that the trial court

erred when it accepted his stipulation to his classification as a sexual predator because

the trial court failed to conduct a hearing, receive evidence and apply the factors

delineated in R.C. 2950.09(B)(2) before determining that Fryer should be classified as a

sexual predator.

{¶38} This argument was fully considered and rejected by this Court in Fryer I.

Under the doctrine of res judicata, a final judgment bars a convicted defendant who was

represented by counsel from raising and litigating in any proceeding, except an appeal Perry County, Case No. 15-CA-00013 17

from that judgment, any defense or any claimed lack of due process that the defendant

raised or could have raised at trial or on appeal. State v. Szefcyk,

,

(1996), reaffirming State v. Perry,

,

,

(1967), paragraph nine of the syllabus. “More specifically, a criminal

defendant cannot raise any issue in a post sentence motion to withdraw a guilty plea

that was or could have been raised at trial or on direct appeal. State v. Reed, [7th Dist.

Mahoning No. 04 MA 236,

]; State v. Zinn, [4th Dist. Jackson No.

04CA1,

]; State v. Robinson, [8th Dist. Cuyahoga No. 85266, 2005-Ohio-

4154]; State v. Rexroad, [9th Dist. Summit App. No. 22214,

]; State v.

Reynolds, [3rd Dist. Putnam No. 12-01-11,

]; State v. Wyrick, [5th Dist.

Fairfield No. 01 CA17,

(Aug. 31, 2001)]; State v. Jackson, [11th Dist.

Trumbull No. 98-T-0182,

(Mar. 31, 2000)]; State v. Jeffries, [6th Dist.

Wood No. L-98-1316,

(July 30, 1999)].” State v. Brown,

,

,

.

{¶39} Fryer's fourth assignment of error is overruled. Perry County, Case No. 15-CA-00013 18

{¶40} For the foregoing reasons, the judgment of the Perry County Court of

Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur