Court of Appeals of Ohio, Seventh District, Mahoning
Criminal Appeal from the Court of Common Pleas of Mahoning
County, Ohio Case No. 16-CR-378
Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M.
Rivera, Assistant Prosecuting Attorney, for
Katherine R Ross-Kinzie, Assistant Public Defender, Office Of
The Ohio Public Defender, for Defendant-Appellant.
BEFORE: Carol Ann Robb, Cheryl L. Waite, David A.
OPINION AND JUDGMENT ENTRY
Defendant-Appellant Jermaine Bunn appeals from his conviction
in Mahoning County Common Pleas Court of having a weapon
while under disability and tampering with evidence. Four
issues are raised in this appeal. The first issue is whether
the judicial sanction for committing the offenses while on
postrelease control is a void sentence. Appellant alleges the
trial court did not properly impose postrelease control for
his 2009 conviction of felonious assault and therefore, that
postrelease control term is void and he could not be
sentenced to a judicial sanction for violating a void
postrelease control term. The second issue is whether the
trial court made the necessary statutory findings for
imposing consecutive sentences. The third issue is whether
the weapon while under disability and tampering with evidence
offenses are allied offenses of similar import. The fourth
issue is whether the convictions for having a weapon while
under disability and tampering with evidence are against the
manifest weight of the evidence.
For the reasons expressed below, the first assignment of
error has merit. The imposition of postrelease control in
case number 2008-CR-742 is void and vacated; the judgment
entry imposing postrelease control did not contain all the
necessary advisements. Consequently, since postrelease
control is void, the judicial sanction sentence imposed for
violating postrelease control must be reversed and vacated.
However, the second, third, and fourth assignments of error
are meritless. The remainder of Appellant's convictions
of Facts and Case
In 2009 Appellant was found guilty of felonious assault and
sentenced to seven years in prison. State v. Bunn,
7th Dist. Mahoning No. 10 MA 10, 2011-Ohio-1344, ¶ 1,
15; 1/27/10 J.E. case number 2008-CR-742. He also was
sentenced to a mandatory three year term of postrelease
control. 1/27/10 J.E. case number 2008-CR-742.
On the evening of April 2, 2016 through the early morning
hours of April 3, 2016, Thomas May was having a birthday
party for himself at his residence located at 62 East
Evergreen Avenue in Youngstown, Ohio. Michael Pete, Thomas
Mays' cousin, attended this party.
Appellant had been released from prison a couple of days
prior to April 2, 2016. On the evening of April 2, 2016,
Appellant and his two cousins, Steven Pickard and James
Jackson, driving around Youngstown. At some point they were
on East Evergreen and noticed Mays' birthday party. Tr.
305. Appellant, who was driving the car, stopped the car in
the street and decided to attend the party. Jackson and
Pickard remained in the car. Pickard at some point moved the
car because it was blocking the street.
During the party, Appellant and Michael Pete were alone on
the porch talking. While they were talking on the porch,
gunfire erupted. Michael Pete was shot in the side and
Appellant was shot in the face.
Appellant fled to the car and drove himself to the hospital.
Although neither Pickard nor Jackson noticed Appellant
carrying anything when he got into the car, they did see him
throw a gun out the window of the car on the way to the
hospital. Tr. 311, 435. When they arrived at the hospital,
Appellant told Pickard to go back and get the gun. Tr.
312-313. Pickard and Jackson complied with the request, found
the gun, and Pickard later threw the gun into McKelvey Lake.
Tr. 313, 315, 435.
Immediately after the gunfire, numerous people made 911
calls. During the police investigation of the scene,
twenty-two casings were collected; it was determined that
three different guns were involved in the shooting. Tr. 525.
Nine people were tested for gunshot residue, including
Appellant and Pete. State's Exhibit 107, 108, 109. All
subjects tested positive for gunshot residue. State's
Exhibit 107, 108, 109.
The gunshot wound sustained by Michael Pete was fatal; it
severed his spinal cord, went through his lung, and bruised
his heart. Tr. 548. Appellant recovered from his gunshot
On April 14, 2016 Appellant was indicted for murder in
violation of R.C. 2903.02(A)(1), an unclassified felony;
improperly discharging a firearm into a habitation in
violation of R.C. 2923.161(A)(1)(C), a second-degree felony;
having weapons while under disability in violation of R.C.
2923.13(A)(3)(B), a third-degree felony; and tampering with
evidence in violation of R.C. 2921.12(A)(1)(B), a
third-degree felony. 4/14/16 Indictment. The murder and
improperly discharging a firearm into a habitation had
attendant firearm specifications. 4/14/16 Indictment.
Appellant waived his right to counsel and proceeded pro se;
standby counsel was appointed. 2/23/17 J.E.; 2/24/17 J.E.
Jury trial began on August 14, 2017. Appellant was acquitted
of murder and improperly discharging a firearm into a
habitation. 8/25/17 J.E. He was found guilty of having a
weapon while under disability and tampering with evidence.
Sentencing was held on August 24, 2017; Appellant received an
aggregate nine-year sentence. 8/28/17 J.E. Appellant was
sentenced to three years for having a weapon while under
disability and three years for tampering with evidence.
8/28/17 J.E. The trial court ordered consecutive sentences.
8/28/17 J.E. Pursuant to R.C. 2929.141, the trial court also
ordered Appellant to serve an additional three years, the
balance of his postrelease control in case number 08-CR-742.
8/28/17 J.E. This was required to run consecutive to the
above sentences. 8/28/17 J.E.
Appellant timely appealed the convictions.
Assignment of Error
trial court committed reversible error when it imposed a
judicial sanction sentence on Mr. Bunn based on void
postrelease control in Case No. 2008-CR-742."
Appellant was sentenced to a judicial sanction because the
crimes committed in this case were committed while Appellant
was on postrelease control. The postrelease control term was
issued in case number 2008-CR-742. Appellant argues the term
of postrelease control was void because the judgment entry
imposing postrelease control failed to include all the
necessary language to properly impose a term of postrelease
control. He cites this court to the Ohio Supreme Court
decision State v. Grimes, 151 Ohio St.3d 19,
2017-Ohio-2927, 85 N.E.3d 700.
In Grimes, the offender was convicted of crimes in
2011 and given postrelease control as part of his sentence.
Id. at ¶ 2. Grimes served his prison sentence
and was released on postrelease control. Id. While
under supervision, Grimes committed another offense, was
indicted, and found guilty. Id. at ¶ 3.
Pursuant to R.C. 2929.141, in addition to the sentence for
the new crime, Grimes received a judicial sanction for having
committed the offense while on postrelease control.
Id. at ¶ 4. After completing the sentence for
the new crime and while serving the judicial sanction
sentence, Grimes filed a motion with the trial court that
imposed the judicial sanction asking for the court to vacate
the judicial sanction because the postrelease control
sentence imposed for the 2011 crimes was not validly imposed.
Id. at ¶ 5. The argument was based on the
language in the judgment entry, not the advisement at the
sentencing hearing. Id. at ¶ 2. The trial court
denied the motion, however, the appellate court reversed.
Id. at ¶ 5-6. The case was accepted by the Ohio
Supreme Court on the following question:
To impose valid post release control, the language in the
sentencing entry may incorporate the advisements given during
the sentencing hearing by referencing the post release
control sections of the Ohio Revised Code and do not need to
repeat what was said during the sentencing hearing.
Id. at ¶ 7.
The Ohio Supreme Court reversed the appellate court's
decision and found the judgment entry included the necessary
advisements to validly impose postrelease control. The Court
We hold that to validly impose postrelease control when the
court orally provides all the required advisements at the
sentencing hearing, the sentencing entry must contain the
following information: (1) whether postrelease control is
discretionary or mandatory, (2) the duration of the
postrelease-control period, and (3) a statement to the effect
that the Adult Parole Authority ("APA") will
administer the postrelease control pursuant to R.C. 2967.28
and that any violation by the offender of the conditions of
postrelease control will subject the offender to the
consequences set forth in that statute.
Id. at ¶ 1.
Appellant acknowledges the trial court in 2008-CR-742
complied with the first two requirements. He argues the court
did not comply with the third requirement.
state counters asserting the judgment entry in 2008-CR-742
complied with all three requirements.
At the outset it is noted that Grimes and the case
at hand are procedurally different. In Grimes, the
offender filed a motion with the trial court to vacate a void
sentence. Here, Appellant attacked the judicial sanction on
direct appeal arguing the postrelease control it is based
upon is void and thus, a sentence cannot be given.
Considering the issue involves postrelease control, both
manners of attacking the alleged void sentence are proper.
Recently we have stated, "A sentence that does not
include the statutorily mandated term of postrelease control
is void, is not precluded from appellate review by principles
of res judicata, and may be reviewed at any time, on direct
appeal or by collateral attack." State v.
Hutter, 7th Dist. Mahoning No. 17 MA 0152,
2018-Ohio-3488, ¶ 12, citing State v. Fischer,
128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 1.
It is also noted that the only advisement we are reviewing in
this assignment of error is the advisement given in the
judgment entry in case number 2008-CR-742. The judgment entry
from that case was properly made a part of the record before
us. However, the sentencing transcript in that case is not a
part of our record and there is no claim that the advisement
at the sentencing hearing was inadequate. This is similar to
Grimes where the Court stated:
Notably, we caution that this appeal presents a case in which
it is undisputed that the trial court provided all the
required advisements regarding postrelease control to Grimes
at the sentencing hearing. Grimes did not introduce a
transcript of the hearing into the record, so we must assume
the regularity of the sentencing hearing. Natl. City Bank
v. Beyer, 89 Ohio St.3d 152, 160, 729 N.E.2d 711 (2000).
Our holding is limited to those cases in which the trial
court makes the proper advisements to the offender at the
sentencing hearing. We reach no conclusion as to the
requirements for sentencing entries in cases in which notice
at the sentencing hearing was deficient.
Grimes, 2017-Ohio-2927 at ¶ 20.
The judgment entry in 2008-CR-742 stated:
AND THEREFORE, the Court Orders that the Defendant serve a
term of SEVEN (7) YEARS in prison, of which ZERO (0) years is
a mandatory term pursuant to R.C. 2929.13(F), 2929.14(D)(3)
or 2925, followed by a mandatory period of post-release
control of ...