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State v. Lynch

Court of Appeals of Ohio, Fifth District, Muskingum

November 20, 2017

STATE OF OHIO Plaintiff-Appellee
v.
DANIEL D. LYNCH Defendant-Appellant

         Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2015-0143

          For Plaintiff-Appellee MUSKINGUM COUNTY PROSECUTOR

          For Defendant-Appellant DANIEL D. LYNCH NORTHEAST OHIO CORRECTIONAL

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J.

          OPINION

          GWIN, P.J.

         {¶1} Appellant appeals the judgment entry of the Muskingum County Court of Common Pleas denying his motion to vacate sentence. Appellee is the State of Ohio.

         Facts & Procedural History

         {¶2} In October of 2013, appellant Daniel Lynch was convicted of gross sexual imposition and unlawful sexual conduct with a minor, both felonies of the fourth degree. Appellant was classified as a Tier I Sexual Offender. On August 3, 2014, appellant was released from prison on post-release control.

         {¶3} On April 15, 2015, appellant was indicted on one count of failure to register as a sex offender (address change) in violation of R.C. 2950.05(A), a felony of the fourth degree. On July 8, 2015, appellant pled guilty to one count of failure to register. The trial court accepted his plea of guilty and ordered a pre-sentence investigation. On August 3, 2015, the trial court sentenced appellant at a sentencing hearing.

         {¶4} Additionally, on August 4, 2015, the trial court issued a sentencing entry. The trial court sentenced appellant to fourteen (14) months in prison. The trial court also stated in the sentencing entry that appellant was on post-release control at the time of the commission of the offense herein. The sentencing entry provides, "pursuant to ORC 2929.141, this Court terminates the Defendant's period of post release control and hereby ORDERS that the Defendant serve the remainder of his post-release control; said sentence shall be served mandatory consecutive to the sentence imposed herein."

         {¶5} On May 18, 2017, appellant filed a motion to vacate sentence. Appellant argued that: the trial court violated his rights pursuant to Criminal Rule 43(A) as the trial court never told him how much time he had remaining on his post-release control and the trial court did not impose a sentence as to the remainder of his post-release control time. Appellant sought to vacate and void his prison term because the years he had remaining on post-release control were added to his sentence via the Bureau of Sentencing Computation once he arrived at the state correctional institution. Appellant argued his sentence should be vacated as his right to notice and right to due process was violated.

         {¶6} Appellee filed an opposition to appellant's motion on May 26, 2017. Appellee argued appellant's post-conviction relief petition was untimely and his arguments were barred by res judicata.

         {¶7} The trial court issued a judgment entry denying appellant's motion on May 30, 2017. The trial court found appellant failed to raise these issues in a direct appeal or timely post-conviction relief petition and are thus barred by res judicata. The trial court also found that, pursuant to Criminal Rule 43, appellant's presence was required at the sentencing hearing and he was there.

         {¶8} Appellant appeals the May 30, 2017 judgment entry of the Muskingum County Court of Common Pleas ...


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