[Cite as State v. Shepherd,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109496 v. :

TYSHAWN SHEPHERD, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 25, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-08-518815-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, for appellant.

LISA B. FORBES, J.:

Tyshawn Shepherd (“Shepherd”) appeals the trial court’s denial of his

motions to vacate postrelease control. After reviewing the facts of the case and pertinent law, we affirm the trial court’s judgment, because Shepherd’s motions are

barred by the doctrine of res judicata.

I. Facts and Procedural History

On January 21, 2009, the trial court journalized1 Shepherd’s guilty

plea to aggravated robbery and kidnapping, both first-degree felonies. This journal

entry states that “defendant advised of post release control for 5 years.” On

January 23, 2009, the trial court journalized Shepherd’s seven-year aggregate

prison sentence. This journal entry states that “post release control is part of this

prison sentence for 5 years for the above felony(s) under R.C. 2967.28.”

Shepherd served his prison sentence and was released in 2015.

Shepherd filed successive pro se motions to vacate postrelease control on

December 18, 2019, and January 8, 2020. The trial court denied both motions on

January 16, 2020, and it is from this denial that Shepherd now appeals.

II. Law and Analysis

This case is controlled by the Ohio Supreme Court’s recent opinion in

State v. Harper,

,

,

, which

states that “[w]hen the sentencing court has jurisdiction to act, sentencing errors in

the imposition of postrelease control render the sentence voidable, not void, and the

sentence may be set aside if successfully challenged on direct appeal.” Harper

1 We refer to the journalization dates rather than the plea hearing and sentencing hearing dates because Shepherd did not file the transcripts from his plea and sentencing hearings, and we have nothing to review other than the journal entries. reversed the judgment of the appellate court, “to the extent that it remanded the case

to the trial court to correct the entry imposing postrelease control.” Id. at ¶ 44.

The Ohio Supreme Court issued the following admonition in Harper:

“we caution prosecuting attorneys, defense counsel, and pro se defendants

throughout this state that they are now on notice that any claim that the trial court

has failed to properly imposed postrelease control in the sentence must be brought

on appeal from the judgment of conviction or the sentence will be subject to res

judicata.” Id. at ¶ 43.

The Ohio Supreme Court clarified that when a sentence is voidable

under Harper, “the doctrine of res judicata will apply to collateral attacks on it.”

State v. Hudson, Slip Opinion No. 2019-0646,

.

Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant 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 [in the trial court] which resulted in that judgment of conviction or on an appeal from that judgment.

State v. Perry,

,

(1967). This court recently

held that res judicata barred a collateral attack on the imposition of postrelease

control, because the defendant “could have, but did not, raise any issue regarding

the postrelease control and his sentencing entry in his direct appeal.” State v. Scott,

8th Dist. Cuyahoga No. 109436,

, ¶ 13.

In the instant case, it is undisputed that the trial court had jurisdiction

to sentence Shepherd in 2009, and that Shepherd did not file a direct appeal of his convictions and sentence at that time. Therefore, res judicata now bars Shepherd’s

challenge to the postrelease control imposed as part of his sentence, and Shepherd’s

sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LISA B. FORBES, JUDGE

MICHELLE J. SHEEHAN, P.J., and MARY EILEEN KILBANE, J., CONCUR