[Cite as State v. Green,

.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 18-CA-3 SHANE GREEN : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Knox County Court of Common Pleas, Case No. 08CR01-0004

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 17, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHARLES T. MCCONVILLE SHANE L. GREEN #578-590 KNOX COUNTY PROSECUTOR MARION CORRECTIONAL INSTITUTION BY: VINCE J. VILLIO Box 57 117 East High Street Marion, OH 43301-0057 Mount Vernon, OH 43050 [Cite as State v. Green,

.]

Gwin, P.J.

{¶1} Appellant appeals the January 22, 2018 judgment entry of the Knox County

Court of Common Pleas denying his motion for reconsideration of sentence to correct

and resentence. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} Appellant Shane Green was indicted on January 8, 2008, by the Knox

County Grand Jury on one count of rape of a child under the age of ten, in violation of

R.C. 2907.02(A)(1)(b), a felony of the first degree, and one count of gross sexual

imposition, in violation of R.C. 2097.05(A)(4), a felony of the third degree. Appellant was

accused of raping his eight-year-old biological daughter.

{¶3} After a jury trial, appellant was convicted of both counts and sentenced to a

definite term of life imprisonment on Count One and a term of five years on Count Two,

with the terms to run consecutively. On June 18, 2008, appellant appealed his conviction

to this Court. State v. Green, 5th Dist. Knox No. 08-CA-20,

. In this direct

appeal, appellant argued as follows: (1) the indictment was defective; (2) ineffective

assistance of trial counsel; and (3) the mens rea in the jury instructions was incorrect. On

May 1, 2009, this Court affirmed the judgment of the Knox County Court of Common

Pleas.

{¶4} On March 11, 2015, appellant filed a motion to vacate and dismiss void

judgment. Appellant argued that the trial court lacked jurisdiction over him because he

was not sworn in under oath during the grand jury proceedings, the indictment was

defective, and the arrest warrant issued for him was not valid. The trial court denied

appellant’s motion. Appellant appealed to this Court and argued: “(1) the trial court Knox County, Case No. 18-CA-3 3

abused its discretion by not ordering an evidential hearing on a challenge of jurisdiction

of personam and subject-matter and (2) the trial court abused its discretion in denying

defendant’s challenge of jurisdiction in response of ruling defendant’s challenge of

jurisdiction as a post-conviction petition.” In State v. Green, 5th Dist. Knox No. 15-CA-

13,

, we overruled appellant’s assignments of error and affirmed the

judgment entry of the trial court.

{¶5} Appellant filed a motion for reconsideration of sentence to correct and

resentence on December 6, 2017. Appellant argued he was not properly notified of post-

release control for Count 1 and the trial court erred in sentencing him to a definite term of

life imprisonment and instead should have imposed an indefinite prison term. Appellee

filed a memorandum in opposition to appellant’s motion on December 11, 2017.

Appellant filed a response to the State’s opposition on December 26, 2017. On January

22, 2018, the trial court denied appellant’s motion.

{¶6} Appellant appeals the January 22, 2018 judgment entry of the Knox County

Court of Common Pleas and assigns the following as error:

{¶7} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT CONVEYING

DEFENDANT BACK TO COURT FOR SENTENCING MANDATED BY LAW.

DEFENDANT’S SENTENCING ENTRY STATES “DEFINITE TERM OF LIFE” AND

DOES NOT STATE ANY TERMS OF POST-RELEASE CONTROL. THE APPELLANT’S

SENTENCE DOES NOT SATISFY STATUTORY REQUIREMENTS.”

{¶8} Appellant makes two separate arguments in his appellate brief. First, he

contends the trial court failed to state a term of post-release control as mandated by law

and he was not properly notified of his post-release control. Second, he argues that the Knox County, Case No. 18-CA-3 4

trial court erred when it did not impose an indefinite prison term under R.C. 2971.03(A)(3)

and instead imposed a definite term of life imprisonment.

{¶9} Appellant first claims the trial court failed to state a term of post-release

control as mandated by law and that he was not properly notified of his post-release

control. In State v. Grimes,

,

, the Ohio Supreme Court

identified what information the sentencing entry must contain to validly impose post-

release control in which the trial court made the proper advisements at the sentencing

hearing. The Ohio Supreme Court found the sentencing entry must contain the following

information: (1) whether post-release control is discretionary or mandatory; (2) the

duration of the post-release control period, and (3) a statement to the effect that the Adult

Parole Authority (APA) will administer the post-release control pursuant to R.C. 2967.28

and 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.

The Ohio Supreme Court

further stated that when an appellant does not introduce a transcript of the sentencing

hearing into the record, the Court must “assume the regularity of the sentencing hearing.”

{¶10} In this case, the trial court did state the term of post-release control in the

sentencing entry as five (5) years. Pursuant to R.C. 2929.19(B)(2)(c) and R.C.

2967.28(B)(1), the proper term of post-release control for appellant in this case is five (5)

years. In reviewing the post-release control notification language in the 2008 judgment

entry, we find the language to be sufficient under the authority of Grimes.

The

transcript of the 2008 sentencing has not been filed or made part of the record in this case

on appeal. Therefore, we must “assume the regularity of the sentencing hearing.” Id.; Knox County, Case No. 18-CA-3 5

State v. Brown, 5th Dist. Richland No. 17CA55,

; State v. Persinger, 5th

Dist. Morrow No. 2017CA0007,

. Accordingly, we find the trial court did

not err in overruling appellant’s motion to correct sentence, as appellant was properly

notified of his post-release control sanction.

{¶11} As to appellant’s second argument, appellant’s claim that the trial court

erred when it did not impose an indefinite prison term and instead imposed a definite term

of life imprisonment could have been raised in his direct appeal. State v. Wolfe, 5th Dist.

Delaware No. 16 CAA 02008,

. “Under the doctrine of res judicata, a

final judgment of conviction bars the defendant from raising and litigating in any

proceeding except an appeal from that judgment, any defense or claimed lack of due

process that the defendant raised or could have raised at the trial which resulted in that

judgment of conviction or on appeal from that judgment.” State v. Perry,

,

(1967). As this Court has previously held, “a defendant who fails on

direct appeal to challenge the sentence imposed on him for an offense is barred by res

judicata from appealing that sentence * * *.” State v. Lindsay, 5th Dist. Richland No.

16CA39,

. Therefore, appellant’s argument is barred by res judicata.

{¶12} Further, appellant cannot show that R.C. 2971.03(A)(3) applies to his

conviction of rape under R.C. 2907.02(A)(1)(b). R.C. 2971.03(A)(3)(a) states, in pertinent

part, “* * * if the offense for which the sentence is being imposed is an offense other than

aggravated murder, murder, or rape and other than an offense for which a term of life

imprisonment may be imposed, it shall impose an indefinite prison term * * *.” Thus, the

plain language of R.C. 2971.03(A)(3)(a) specifically excludes from its mandates any

person who was convicted of rape. Appellant was convicted of rape pursuant to R.C. Knox County, Case No. 18-CA-3 6

2907.02(A)(1)(b); thus, the provisions of R.C. 2971.03(A)(3) are not applicable in this

case. The trial court did not err when it did not impose an indefinite prison term under

R.C. 2971.03(A)(3) and instead imposed a definite term of life imprisonment and did not

err when it denied his motion to correct sentence.

{¶13} Based on the foregoing, appellant’s assignment of error is overruled. The

January 22, 2018 judgment entry of the Knox County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, Earle, J., concur