Court of Appeals of Ohio, Fifth District, Ashland
from the Court of Common Pleas, Case No. 04-CRI-089 J
Plaintiff-Appellee VICTOR R. PEREZ
Defendant-Appellant DENNY R. BUXTON, Pro Se Inmate No.
474-788 Grafton Correctional Institution
JUDGES: Hon. John W. Wise, P.J. Hon. William B. Hoffman, J.
Hon. Earle E. Wise, Jr., J.
1} Defendant-Appellant, Denny R. Buxton, appeals the February
2, 2018 judgment entry of the Court of Common Pleas of
Ashland County, Ohio, denying his pro se motion captioned
"Judicial Notice Plain Error Criminal Rule 52(B) Motion
to Vacate Void Sentence Incorporating Motion to Withdraw
Guilty Plea Pursuant to Criminal Rule 32.1" and his pro
se motion for judgment on the pleadings pursuant to Civ.R.
12(C). Plaintiff-Appellee is the state of Ohio.
AND PROCEDURAL HISTORY
2} On April 11, 2005, appellant pled guilty to two counts
each of burglary and attempted grand theft in violation of
R.C. 2911.12 and 2913.02/2923.02, respectively. In the plea
that he signed, appellant was advised that he was subject to
five years of mandatory postrelease control and the
consequences for violating postrelease control. A sentencing
hearing was held on same date. By judgment entry filed April
15, 2005, the trial court sentenced appellant to an aggregate
term of ten years in prison. Although the entry stated
appellant was advised during the hearing of postrelease
control and the consequences for violating postrelease
control, the entry was silent as to the details.
3} Appellant filed an appeal, challenging his sentence. This
court reversed the sentence and remanded the matter to the
trial court for resentencing in accordance with State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,
and State v. Mathis, 109 Ohio St.3d 54,
2006-Ohio-855, 846 N.E.2d 1. State v. Buxton, 5th
Dist. Ashland No. 05COA020, 2006-Ohio-2521.
4} A resentencing hearing was held on July 24, 2006.
Appellant voluntarily withdrew his request for resentencing.
By judgment entry filed August 3, 2006, the trial court
sentenced appellant to the same sentence, and did not mention
5} On November 9, 2009, appellee filed a motion to resentence
appellant to properly impose postrelease control in light of
the decision in State v. Bloomer, 122 Ohio St.3d
200, 2009-Ohio-2462, 909 N.E.2d 1254, and/or R.C. 2929.191.
By nunc pro tunc sentencing judgment entry filed June 8,
2010, the trial court included the details concerning the
advisement of postrelease control given to appellant during
the April 11, 2005 sentencing hearing (mandatory five years
and the consequences for violating). In the nunc pro tunc
entry, the trial court noted that such entry "does not
change or modify the Defendant's original sentence in any
way. It simply contains the exact advisements given to the
Defendant concerning post-release control at his original
6} On June 21, 2017, appellant filed a pro se motion
captioned "Judicial Notice Plain Error Criminal Rule
52(B) Motion to Vacate Void Sentence Incorporating Motion to
Withdraw Guilty Plea Pursuant to Criminal Rule 32.1, "
contesting the imposition of postrelease control. On October
10, 2017, appellant filed a pro se motion for judgment on the
pleadings pursuant to Civ.R. 12(C) on the issue of
postrelease control. By judgment entry filed February 2,
2018, the trial court denied the motions.
7} Appellant filed a pro se appeal and this matter is now
before this court for consideration. ...