[Cite as State v. Ferrell,
2013-Ohio-5521.]
COURT OF APPEALS
STARK 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. 2013CA00121
MARK FERRELL :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 1996-
CR-0627
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 16, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO MARK FERRELL PRO SE
PROSECUTING ATTORNEY No. A332-108
BY: RONALD MARK CALDWELL Grafton Correctional Institution
110 Central Plaza South, Ste. 510 2500 South Avon-Beldon Road
Canton, OH 44702-1413
[Cite as State v. Ferrell, 2013-Ohio-5521.]
Gwin, P.J.
{¶1} Appellant Mark Ferrell appeals the May 31, 2013 judgment entry of the
Stark County Court of Common Pleas overruling his “motion to correct void sentence.”
The appellee is the State of Ohio.
Facts & Procedural History
{¶2} On July 5, 1996, appellant was indicted on multiple sex offenses relating
to his two step-children, both under the age of thirteen at the time of the offenses. The
indictment provides that the offenses were committed as a continuous course of
conduct between 1985 and 1988. In November of 1996, appellant was convicted of
three counts of rape with force specifications, three counts of felonious sexual
penetration with force specifications, and four counts of gross sexual imposition.
Appellant was sentenced to six mandatory life sentences for the rape and felonious
sexual penetration convictions. Appellant was also sentenced to four one-year prison
terms for the gross sexual imposition convictions. The trial court ordered the sentences
to be served consecutively. On direct appeal, this Court affirmed the convictions and
sentences in State v. Ferrell, 5th Dist. Stark No. 1997CA00005, 1998 WL 401844
(March 9, 1998).
{¶3} The trial court denied appellant’s first petition for post-conviction relief in
May of 1998. In May of 2002, the trial court overruled appellant’s motion for new trial.
This Court affirmed the trial court’s decision on delayed appeal in State v. Ferrell, 5th
Dist. Stark No. 2002-CA-00272, 2003-Ohio-3134.
{¶4} The trial court denied appellant’s second petition for post-conviction relief
in 2002 and on June 16, 2003, this Court affirmed the dismissal. State v. Ferrell, 5th
Stark County, Case No. 2013CA00121 3
Dist. Stark No. 2002CA00423, 2003-Ohio-3137. In 2006, the trial court denied
appellant’s motion to dismiss indictment. This Court affirmed the trial court in February
of 2007. State v. Ferrell, 5th Dist. No. 2006CA00236,
2007-Ohio-491.
{¶5} On April 4, 2013, appellant filed a motion to correct sentence with the trial
court, arguing that R.C. 2967.28 requires that he be sentenced to post-release control
for his four convictions for gross sexual imposition and that the trial court failed to notify
him of this post-release control. Appellee filed a response to appellant’s motion on April
25, 2013, arguing since appellant committed the offenses between 1985 and 1988 prior
to the enactment of the post-release control statute, no re-sentencing was required.
The trial court issued a judgment on May 31, 2013, stating that “upon full review,” the
motion is denied.
{¶6} Appellant appeals the May 31, 2013 judgment entry of the Stark County
Court of Common Pleas, assigning the following as error:
{¶7} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO GIVE THE
DEFENDANT/APPELLANT A TERM OF POST RELEASE CONTROL IN
COMPLIANCE OF R.C. 2967.28 WHEN HE WAS INDICTED AFTER THE AM. SUB.
SB 2 ENACTED AND PUT INTO EFFECT THE STATUTE GOVERNING POST
RELEASE CONTROL TO WIT JULY 1, 1996.”
I.
{¶8} Appellant first asserts that because he was indicted and sentenced after
the effective date of Senate Bill 2 on July 1, 1996, the trial court erred in failing to notify
him of a mandatory term of post-release control on his sentences for each count of
Stark County, Case No. 2013CA00121 4
gross sexual imposition. Thus, appellant contends his sentence is void and we should
remand his case to the trial court for a de novo sentencing hearing. We disagree.
{¶9} Post-release control, in its current form, did not exist prior to the
enactment of Senate Bill 2. State v. Gimbrone, 2nd Dist. Montgomery No. 23062, 2009-
Ohio-6264; State v. Gavin, 8th Dist. Cuyahoga No. 90017, 2008-Ohio-2042. “Before
S.B. 2, certain offenders … were subject to parole.” Gimbrone,
2009-Ohio-6264.
When the General Assembly enacted S.B. 2, effective July 1, 1996, they made
significant changes to Ohio’s criminal sentencing scheme. Id; State v. Rossi, 7th Dist.
Mahoning No. 11-MA-32,
2012-Ohio-2433. S.B. 2 introduced post-release control in
place of parole.
Id. Post-release control notice requirements were incorporated into
Ohio law with the enactment of S.B. 2. State v. Bailey, 10th Dist. Franklin No.
97APA06-754,
1999 WL 333231, (May 18, 1999).
{¶10} In State v. Rush, the Ohio Supreme Court made clear that the sentencing
provisions of S.B. 2 only applied to crimes committed on or after July 1, 1996, the
effective date of S.B. 2. 83 Ohio St.3d 53,
1998-Ohio-423,
697 N.E.2d 634. In the
syllabus of Rush, the Ohio Supreme Court specifically stated that S.B. No. 2 “appl[ied]
only to those crimes on or after July 1, 1996.”
Id. Under Rush, there is no distinction or
exception for a defendant who was indicted, convicted, or sentenced after the July 1,
1996 effective date. State v. Slider, 11th Dist. Trumbull No. 97-T-0166,
1998 WL
964687 (Dec. 4, 1998). The plain language of Rush controls even when a defendant is
indicted, convicted, or sentenced after S.B. 2 was enacted in July 1, 1996. State v.
Morris,
143 Ohio App.3d 817,
759 N.E.2d 394 (10th Dist. 2001); State v. Canfield, 9th
Dist. Medina No. 03CA0078-M,
2004-Ohio-2123.
Stark County, Case No. 2013CA00121 5
{¶11} Further, R.C. 2967.021 provides that:
Chapter 2967. of the Revised Code [dealing with parole], as it
existed prior to July 1, 1996, applies to a person upon whom a court
imposed a term of imprisonment prior to July 1, 1996, and a person upon
whom a court, on or after July 1, 1996, and in accordance with law
existing prior to July 1, 1996, imposed a term of imprisonment for an
offense that was committed prior to July 1, 1996.
{¶12} In this case, appellant’s offenses were based upon a continuous course of
conduct from 1985 to 1988, prior to the effective date of S.B. 2. Accordingly, the
provisions of S.B. 2 do not apply to appellant’s offenses and the trial court did not err in
sentencing defendant pursuant to the law in existence before S.B. 2. Because
appellant’s offenses occurred between 1985-1988 and prior to the effective date of S.B.
2 of July 1, 1996, the Rush decision is applicable. Thus, appellant is not subject to the
post-release control provisions of S.B. 2 and is therefore not entitled to any notification
of post-release control. The trial court did not err in failing to notify him of a mandatory
term of post-release control on his sentences for each count of gross sexual imposition.
{¶13} Appellant next contends that Senate Bill 2 applies in his case because the
trial court did not specify which sentencing regime – pre-Senate Bill 2 or Senate Bill 2 –
it applied in sentencing appellant. We disagree.
{¶14} Appellant fails to cite any legal authority for this proposition as required by
Appellate Rule 16(A). Further, “a silent record raises the presumption the trial court
correctly considered the appropriate sentencing criteria.” State v. Kandel, 5th Dist.
Ashland No. 04COA011,
2004-Ohio-6987, citing State v. Adams,
37 Ohio St.3d 295,
Stark County, Case No. 2013CA00121 6
525 N.E.2d 1361 (1988). As discussed above, the proper sentencing law to be applied
is the pre-Senate Bill 2 sentencing regime and the record demonstrates the trial court
sentenced appellant in accordance with pre-Senate Bill 2 sentencing provisions.
{¶15} Finally, appellant briefly mentions in his argument that the trial court
incorrectly sentenced him to consecutive sentences and/or to an incorrect sentence
length. Appellant again fails to cite any legal authority for this proposition and thus is
not in compliance with Appellate Rule 16(A). Res judicata is defined as “[a] valid, final
judgment rendered upon the merits bars all subsequent actions based upon any claim
arising out of the transaction or occurrence that was the subject matter of the previous
action.” State v. Perry, 10 Ohio St.2d 175,
226 N.E.2d 104 (1967). Appellant either
raised or could have raised arguments regarding the appropriateness of consecutive
sentences or the length of his sentences for the gross sexual imposition convictions
during his direct appeal. Accordingly, any such argument is barred under the doctrine
of res judicata.
Stark County, Case No. 2013CA00121 7
{¶16} Based on the foregoing, appellant’s assignment of error is overruled and
the May 31, 2013 judgment entry overruling appellant’s “motion to correct void
sentence” is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Farmer J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
WSG:clw 1125
[Cite as State v. Ferrell, 2013-Ohio-5521.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
MARK FERRELL :
:
:
Defendant-Appellant : CASE NO. 2013CA00121
For the reasons stated in our accompanying Memorandum-Opinion, the May 31,
2013 judgment entry overruling appellant’s “motion to correct void sentence” is affirmed.
Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
