STATE OF ^^^^ ^

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MEMORANDUM IN SUPPORT OF JURISDICTION

ROBERT A. SNEAD 1425^370

MaGI WA-146-L

P.O. BOX 740

LONDON2 OM 43140

APPELLANT IN PRO SE

D. VINCENT FARIS (0001163)

CLERMONT COUNTY PROSECUTOR

JUDITH BRANT

ASuI5TANT PROSECUTOR

76 S m RIVERSIDE DR^ ^ 3RD FLRo

BATA''^ ^^ ^ ^^ ^ ^^ 45103

COUNSEL FOR APPELLEE

^ j. .`..

^^^ ^ ^ ^^^^

CLERK OF COURTREME COURT OF C

IN THE SUPREME COURT OF O^^IC)^ ^ 2 ^r

Trial Court No, 2001-C_^ -0^ 10On Appeal ENrom '^.^^^ ^leza:^^t ComtyC-^^^ of Appeals, Twelfth ^^pellate

° Distr°^ ^ ^ , Case x=3o® C.^ ^01^^01-014

.1 .^ , . ^. _ . ,

:.i%..ERK F-,f ,..,.. ';

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^^^^ `` fl i^^- C^^, .%^i ^ '''- OHI OC t6 3° .,,

TABLE OF CONTENTSPAGE NO.

PROPOSITION OF LAW NO. 1: A COURT VIOLATES THE DOCTRINE OFSTARE DECISIS WHEN IT FAILS TO FOLLOW-_ ALL APPLICABLESUPREME COURT OF OHIO PRECEDENTS IN THE DETERMINATION THAT 1-3POST RELEASE CONTROL NOTIFICATION WAS PROPERLY GIVEN.

PROPOSITION OF LAW NO. 2: AN APPELLATE COURT MUST FOLLOW ALLAPPLICABLE SENTENCING STATUTES WHEN MAKING A DETERMINATION 3®4AS TO WHETHER A SENTENCE IS CONTRARY TO LAWa

PROPOSITION OF LAW NO. 3: NO MATTER THE PROCEDURAL POSTURE,WHEN ISSUES OF ILLEGAL AND VOID PROCEEDINGS COMES TO A 4-COURT°S ATTENTION, THEY MUST BE ADDRESSED.

PROPOSITION OF LAW NO. 4: A COURT'S FAILURE TO FOLLOWMANDATORY SENTENCING STATUTES RENDERS THE PROGEEDING TO 4-5WHICH THEY APPLY ILLEGAL AND VOID.

PROPOSITION OF LAW NO. 5: A COURT'S FAILURE TO DEFINE THECONSEQUENCES OF VIOLATIONS OF POST RELEASE CONTROL WHEN IT 6IS MAKING THE MANDATORY NOTIFICATION OF THE SAME, RENDERS ITUNCONSITUTIONAL AND VOID.

TABLE OF AUTHORITIES........a ............................. ii

COriCLUSION.... . ............................................ 6

CERTIFICATE OF SERVICE .................................... 6

JUDGMENT ENTRY TWELFTH DISTRICT CASE NO. CA2014-01-014.... App.

-i-

TABLE OF AUTHORITIES

Colegrove v. Maxwell (1964) 175 OS 437, 438 .............................

Hurford v. City of Omaha 4 N.E. 336............ .......................

Kaine v. Marion Prison Warden (2000) 88 Ohio St.3d 455, 455 .............

Oregon v. Ice (2009) 129 S.Ct. 711 ..................e...................

Miller v. State 3 Ohio St. 475 ..........................................

State v. Beasley (1984) 14 Ohio St. 74 ..................................

State v. Bloomer (2009) 122 Ohio St.3d 200 ..............................

State v. Boshko (2000) 745 N.E.2d 1111 ..................................

State v. Boswell (2009) 121 Ohio St.3d 575......... ...................

State v. Bruce (4th Dist.) 2003-0hio-4081 ...............................

State v. Jones (2001) 93 Ohio St.3d 391........... ......................

State ex rel Jones v. Farrar (1946) 146 Ohio St. 467p 471--71,...........

State v. Jordan (2004) 104 Ohio St.3d 21, 817 N.E.2d 864 ...............

State v. Ketterer 2010-Ohio-3831 ........................................

State v. Sanders 2002-Ohio-1428 .........................................

State v. Saxon (2006) 109 St.3d 176 .....................................

State v. Thomas (1996) 111 Ohio App.3d 510 ..............................

State v. Westendorf 2003-Ohio-1019 ......................................

Woods v. Telb (2000) 89 ohio St.3d 504 ..................................

O.R.C. §2929.14 .........................................................

O.R.C. §2929.19 .........................................................

O.R.C. 52967.25 .........................................................

page no.

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4

4

4

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4

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3&5

3& 5

I

3

2 & 3

2

-ii-

APPELLANT ROBERT A. SNEAD°S

MEMORANDUM IN SUPPORT OF JURISDICTION

I. STATEMENT OF THE CASE AND FACTS:

During the early morning hours of January 1st, 2001, the Appellant, while

experiencing a"drug induced" dissociative break, illegally entered the home

of Mr. James Stephens and Ms. Christine Carter. Once inside the Appellant

restrained both of them, assaulted them with a stun®gun, and gave them two

tablets each Carisopridal.

At approximately 4:00 a.m. Mr. Stephens escaped his binds, niade it to a

neighbor's house and dialed 911. When the Officers arrived they found the

Appellant in the home and shot him in the right arm and chest. The Appellant

never attempted to, nor discharged his weapon.

On February 25th, 2002, under the erroneous advice of counsel, the Appellant

entered guilty pleas to 2 cts. kidnap, 1 ct. agg. burglary, 1 ct. felonious

assault of a peace officer, and 2 cts. misdemeanor assault. The Appellant was

sentenced to an aggregate terrn of 21.years, and adjudicated a sexual predator.

On or about March 15th, 2013, the Appellant filed a motion in the trial

court to "correct a void sentence". This was denied by the trail court and the

Appellant sought review from the Twelfth district court of appeals, case no.

CA2014-01®014, from which the instant appeal is brought. It bears mention that

while the Appellant has filed numerous petitions he has never had a merit

decision. All times these things have been deemed barred by res judicata.

II. PROPOSITIONS OF LAW:

PROPOSITION OF LAW NO. 1: A court violates the doctrine of stare decisiswhen it fails to follow all applicable Supreme Court Of Ohio precedents in thedetermination that post release control notification was properly given.

In the case at bar, the Appellant cited multiple failures in the notification

-1-

of post release control. Furthermore, he cited each incident with a controlling

Supreme Court of Ohio Precedent(s), yet the trial and appellate courts have left

the appellant with some absurd results. Case in Point:

A.) Consequences for violations of post release control: If the appellant's

post release control notification should be permitted to stand "as is", then

he is subject to any term of incarceration the Ohio Adult Parole Authority may

see fit to impose upon him. The trail court's sentencing entry states "the

defendant is ordered to serve as part of this sentence any term of post release

control imposed by the parole board, and any prison term for violation of that

post release control". This is in conflict with this Honorable Court's holding

in State v. Ketterer 2010-Ohio-3831 and O.R.C. 52929.19(B)(3)(e), which states

in relevant part:

"Notify the offender that, if a period of supervision is imposed followingthe offender's release from prison and if the offender violates thatsupervision or condition of post release control the parole board mayimpose a prison term, as part of the sentence, of up to one-half of thestated prison term originally imposed upon the offender."

This can only be deemed unconstitutional and a violation of due process. This

violates both the spirit and the letter of the law.and renders this section of

the Appellant's sentence void, see e.g. Colegrove v. Maxwell (1964).175 OS 437,

438., State v. Beasley (1984) 14 Ohio St. 74. In general a Court speaks through

its journal. Kazne v. Marion Prison Warden (2000) 88 Ohio St.3d 454, 455, 727

N.E.2d 907; then with this consideration this improper notification leaves

the Appellant at the mercy and whim of the parole board.

B.) An indefinite term of post release control: O.R.C. 52967.28{B)(1),

states that the period of post release control for a felony one (all of the

Appellants charges are felony ones) is five years. Yet the Court's entry states

"up to a maximum of five years", and therefore implies that it is a discreticnary

term, when it is mandatory. This is a:^failure by the Appellate court to adhere

-2-

to this Court's guidance in State v. Jordan (2004) 104 Ohio St.3d 21, 817

N.E.2d 8649 State v. Bloomer (2009) 122 Ohio St.3d 200; and Woods v. Telb

(2000) 89 Ohio St.3d 504.

C.) Omnibus sentence for multiple counts: Finally, the period of post

release control the trail court attempted to notify the Appellant of is not

attached to any specific charge. Each of the counts must be considered and

listed separately, not as a group. State v. Saxon (2006) 109 Ohio St.3d 176,

yet this is precisely what the trial court did and the Appellate court psnnitted

stand, see also, State v. Ketterer, supra. Both Court's violated statutes and

thus due process and the Appellant's constitutional rights.

PROPOSITION OF LAW NO. 2: An Appellate Court must follow all applicablesentencing statutes when making a determination as to whether a sentence iscontrary to law.

The Appellate Court is correct that the Appellant's sentence falls within

the minimum and maximum sentences allowed.by O.R.C. §2929.14 (former). However,

it failed to comport with numerous other "mandatory" statutes. Case in point:

It is the legislatures' rightful place to impose constraints upon the

judiciary and the length of the sentences they may impose. Oregon v. Ice (2009)

129 S.Ct. 711g yet the trial court failed to follow the law as it was written.

State v. Westendorf 2003-Ohio-1019, Furthermore, the trial court failed to

apply the law as written. State v. Thomas (1996) 111 Ohio App.3d 510. The

trial court circumvented the following laws:

A.) O.R.C. §2929.19(B)(2), state in relavant part "The court shall impose

a sentence and shall make a finding that gives its reasons for selecting the

sentence imposed in any of the following circumstances'°, and then at O.R.C.

52929.19(B)(2)(c) it continues to state "If it imposes consecutive sentences

under section 2929.14 of the revised code, its reasons for imposing the con-

secutive sentences. It is the Appellant's contention that no reasons were stateI,

-3-

as these reasons were required to be based in facts an evidence and none

existed to substantiate a finding of great or unusual harm having been canrrLtted.

see e.g. State v. Bruce (4th Dist.) 2003-Ohio-4081. The Supreme Court precedent

that by the Appellant's reading required these reasons in compliance with this

statute was State v. Jones (2001) 93 Ohio St.3d 391, as well as a myriad of

cases in the Twelfth district prior to and after the Appellant was sentenced,

see e.g. State v. Boshko (2000) 745 N.E.2d 1111; State v. Garcia (1998) 710

N.E.2d 783; State v. Sanders 2002-Ohio-1428.

PROPOSITION OF LAW NO. 3: No matter the procedural posture, when issuesof illegal and void proceedings comes to a court's attention, they must beaddressed.

This Honorable Court held in State v. Boswell (2009) 121 Ohio St.3d 575,

essentially that regardless of procedural posture, when issues of a void

sentence came to a Court°s attention, they were to address the matter. It

is the Appellant's contention, that a unresolved illegal and void proceedings

should be treated in much the same manner. Regardless of whether there has

been a merit based decision, or not.

PROPOSITION OF LAW NO. 4: A Court's failure to follow mandatory sEntermasgstatutes renders the proceeding to which they apply illegal and void.

When a statute uses the word staall it will be construed as mandatory. When

a statute is mandatory, noncompliance will render the proceedings to which it

relates illegal and voi.d. State ex rel Jones v. Farrar (1946) 146 Ohio St.

467, 471®72. The following are excerpts from the same:

4T4, "Whether a statute is mandatory or directory is to be ascertainedfrom a consideration of the entire act, its nature, its effect and theconsequences which would result from construing it one way or another.In each instance., it is necessary to look at the subject matter of thestatute and consider the importance of the provision which has beendisregarded and the relation of that provision of the general objectintended to be secured by the act."

-4-

119T7, 8 & 9, °°If the provision involved relates to some immaterial matteror directs certain actions with view to proper, orderly and prompt c.ondmtof public business the provisions may be regarded as directory; but,where it directs acts or proceedings to be done in a certain way andindicates that compliance with such provision is essential to the validityof the act or proceeding, or where it requires some antecedent andprerequisite conditions to the exercise of a *473 power, the statutemay be regarded as mandatory. Hurford v. City of Omaha, 4 N.e. 336.The character of the statute may be determined by the consideration of(1) the words of the statute, (2) the nature, context and object of thestatute and (3) the consequences of the various constructions. SeeMiller v. State, 3 Ohio St. 475.°`

There can be no doubt that the statutes in the case at bar are mandatory.

(1) The statutes use the word "shall", (2) they are by nature, context and

object designed to control the length of felony sentencing and sanctions (3)

their improper construction in the case at bar has left the Appellant with a

sentence and sanctions well in excess of what the legislature intended or

permitted.

This leaves us with the proceedings of February 25th, 2002, and March 4th,

2002, falling well within the boundaries of illegal and void.

When all of the mandatory statutes, criminal rules, and controllirg Supreme

Court of Ohio precedents are given their proper weight and consideration, the

trial court only possessed the authority to sentence the Appellant to a term

of between six (6) and eleven (11) years.

It is the legislations rightful place to put constraints upon the judiciary.

Oregon V. Ice (2009) 129 S.Ct. 711. Yet the trial court failed to follow the

law as it was written. State v. Westendorf 2003-Ohio-1019, Furthermore, the

trial court failed to apply the law as written. State v. Thomas (1996) 111

Ohio App.3d 510. The trial court°s circumvention of the mandatory statutes

is highly innappropriate and renders the end result df proceedings which are

illegal and void.

-5-

PROPOSITION OF LAW NO. 5: A Court's failure to define the consequencesof violations of post release control when it is making the mandatory notificationof the same,-renders it unconstitutional and void.

To leave the Appellant with an indefinite sentence when it was the intent

of the legislature for it to be a definite term, should render at the very

least, this section of the sentence void, if not in its entirety.

III. CONCLUSION:

The prosecution (state) should not be permitted to intentionally cirrzrrvmt

mandatory statutes, criminal rules and controlling precedents to satisfy

their whim or fancy. It is extremely disconcerting to believe they are allowed

to violate laws in the punishment of others who have violated laws. It seems

paradoxical =at best, to allow those who are to enforce the law to di.sregard

the very same.

I humbly seek this Honorable Court's guidance in the aforementioned

matters, and ask that this case be deemed worthy of revzew.

Respectfully submitted,

Robert A. SneadAppellant in pro se

CERTIFICATE OF SERVICE

This is to certify that a true copy of the forgoing memorandum of juris-diction was sent via regular U.S. Mail tot he Clermont County Prosecutor,Attn: Judith Brant, 76 S. Riverside Dr., 3rd Flr, Batavia OH 45103 on this.^ ^"day of 2014. ^

^obert A. nead

-6-

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,

CLERMONT COUNTY,. ..

...-.y ;.. .

^! S

CASE NO. CA2014-01-01 4

JUDGMENT ENTRY- vs -

ROBERTA. SNEAD,

Defendant-Appellant.

The assignments of error properly before this court having been ruled upon, itis the order of this court that the judgment or final order appealed from be, and thesame hereby is, affirmed.

It is further orderbd that ay mandate be sent to the Clermont County Court ofCommon Pleas for e'xecution ''iapori this judgment and that a certified copy of thisJudgment Entry shall cc6titute tho mandate pursuant to App.R. 27.

Costs to be taxed in compliance with App.R. 24.

COURT OF APPEALS

FILED

JUN u l1 1(114

BARBARA A. WIEDEhiBE) ►yCLERK

CLERMONT COUN7Y, OH

'o ell, Prdsiding Judge

, t^f 9 2

Robin N. t'iper, Jub*

Mike F'owell, Judge

, ,,^ :

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

-vs-

ROBERT A. SNEAD,

Defend a nt-Appel lant.

CASE NO. CA2014-01-014

0 P IN60N6/30/2014

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEASCase No. 2001 CR00010

D. Vincent Faris, Clermont County Prosecuting Attorney, Judith Brant and Nicholas Horton,76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Robert A. Snead, A425370, Madison Correctional Institution, P.O. Box 740, London, Ohio43140-0740, defendant-appellant, pro se

S. POWELL, J.

{fi f} Defendant-appellant, Robert Snead, appeals from the decision of the Clermont

County Court of Comrrio+n PEi3as dismissing his petition for postconviction relief. For the

reasons detailed below, we affirm.

(¶ 2) On February 25, 2002, Snead pled guilty in Clermont County Common Pleas

Court to a number of offenses, specifically:

Clermont CA2014-01-014

Ct.#1: Aggravated Burglary with a three year gun specification, inviolation of Section 2911.11(A)(1.) of the Ohio Revised Code, afelony of the first degrde; Ct.##4: Kidnapping with sexualmotivation spec4fication. invioiation of Section 2905.01(A)(2), afelony of the frrst degree; Ct.#5: Kidnapping in violation ofSection 2905.01(A)(2), a felony of the first degree; Cts.#1 0 and#11: Assault in violation of Section 2903.13, misdemeanors ofthe first degree and Ct.#1 2: Felonious Assault on a Police Officerin violation af Section 2903.11 (A)(2), a felony of the first degree.

State v. Snead, Clermont C.P. 01-CR-00010 (Feb. 27, 2002) (Snead J), C3n March 11, 2002,

the trial court entered a judgment entry of sentence. That entry set out the charges upon

which Snead was found guilty and imposed a 21-year sentence of impriscnment. Snead did

not file a direct appeal.

113) On January 15, 2008, Snead moved to withdraw his guilty plea, claiming, inter

alia, he was denied effective assistance of counsel and his sentence was improper. On

March 11, 2008, the trial court deniecl Sn^ad's'motion to withdraw his guilty plea. This court

affirmed the trial court's debi^oon in an 66firy dated October 14, 2006. State v. Snead, 12th

Dist. Clermont No, CA2003-04-036 (Oct. 4, 2008) (Accelerated Calendar Judgment Entry)

(Sraead ll).

(¶ 4} On December 28, 2009, Snead filed a petition for postconviction relief. Among

other things, Snead argued: (1) his conviction and sentence was contrary to law; (2) he was

denied effective assistance of counsel; (3) his convictions were allied offenses of similar

import; and (4) his convictions were against the manifest weight of the evidence. The trial

court denied Snead's motion in an entry filed January 26, 2010. State v. Snead, Clermont

C.P. No. 2001-CR-00010 (Jan. 26, 2010) (Judgment Entry Overruling Motion For

Postconviction Relief) (Snead lll).< Snead did not appeal the decision of the trial court.

11[51 On June 13, 2t;10, S nead moved for leave to file a delayed appeal from the

judgment entry entered on March 11, 2002. This court denied Snead's motion in an entry

dated August 20, 2010. State v. Snead, 12th Dist. Clermont No. CA2010-06-045 (Aug. 20,

2

Clermont CA2014-01-014

2010) (Entry Denying Motion For Delayed Appeal) (Snead It/).

116) Also on June 18, 2010, Snead filed a second petition for postconviction relief.

On July 20, 2010, the trial court denied Snead's petition. This court dismissed Snead's

appeal on the basis of untimeliness in an entry dated September 15, 2010. State v. Snead,

12th Dist. Clermont No. CA2010-08-062 (Sept. 15, 2010) (Judgment Entry of Dismissal)

(Snead V).

{$7} On March 1., 2011, Sr4ead. filed a petition for a writ of habeas corpus in federal

court alleging 16 grounds foF reiiei'. On September 4, =;2012, the district court dismissed

Snead's petition pursuant to 23 tJ.S>C. 2254 with prejudice on the ground that the petition

was time-barred under 28 U.S.C. 2244(d). Snead v. Warden, Madison Correctional Inst.,

S.D.Ohio No. 1:11-CV-127, 2012 WL 3835105, *2 (Sept. 4, 2012) (Snead VI).

{T8} On April 10, 2013, Snead filed a petition forwrits of mandamus and prohibition

against Judge Ferenc in the Clermont County Court of Commor, P1eas. On April 18, 2013,

the trial court issued a nunc pro tunc judgment entry of sentence correcting the 2002

judgment entry by stating that Snead was convicted of certain crimes "pursuant to his pleas

of guilty entered February 25, 2002." Snead then filed an amended petition with this court on

June 7, 2012, raising 17 assignments of error. On November 4, 2013, this court dismissed

the petition on the grounds ti :at thenunc pro tur:c entry rendered the mandamus claim moot

and that relief in prohibition was unavailable because Snead had an adequate remedy by

way of appeal to dispute the propriety of the nunc pro tunc entry. The Ohio Supreme Court

affirmed this court's decision;in a per curiam opinion. State ex rel. Snead v. Ferenc, 138

Ohio St.3d 136, 2014-Ohio-43 (Snead VII).

{¶ 9} On May 15, 2013, Snead filed the following pro se motions: (1) defendant's

motion to withdraw a guiity plea; (2) defendant's motion requesting appointment of an expert

witness; (3) defendant's request for copies of documents; (4) defendant's motion to correct a

-3-

Clermont CA2014-01-014

void sentence. The trial court found it lacked jurisdiction to consider Snead's motion to

correct a void sentence because of the pending appeal in Snead V11. The triai court therefore

stayed its decision on that motion pending the outcome of Snead's appeal. The trial court

denied Snead's remaining motions on the basis of res judicata. This court affirmed that

decision on November 12, 2013. State v. Snead, 12th Dist. Clermont No, CA2013-07-058

(Nov. 12, 2013) (Accelerated Calendar Judgment Entry) (Snead Vllf}.

{¶ 10} On January 14, 2014, following the resolution of the appeal in Snead VI, the

trial court denied appellant's "Motion to Correct a Void Sentence." State v. Snead, Clermont

C.P. No. 2001-CR-00010 (Jan. 14,2014) (Decision and Entry). Appellant now appeals from

this decision, raising two assignments of error for review.

{¶ 11} Assignment of Error No. 'i :

1112} THE TRIAL QC>URT ERRED AND ABUSED ITS DISCRETION TO THE

PREJUDICE OF THE APPELLANT WHEN IT FAILED TO DECLARE THE PROCEEDINGS,

CONVICTION, JtJDGM ^, Nl', :SENTENCE AND SANCTIONS OF THE FEBRUARY 25TH,

2002, PLEA HEARING AND MARCH 4TH SENTENCING HEARING, OF THE APPELLANT,

AS ILLEGAL AND VOID AND IMPROPERLY APPLIED THE DOCTRINES OF RES

JUDICATA AND THE LAW OF THE CASE IN VIOLATION OF THE DOCTRINE OF STARE

DECISIS.

{¶ 13} Assignment of Error No. 2:

{¶ 14} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO THE

PREJUDICE OF THE APPELL,4N`f. WHEN IT RELIED UPON TWELFTH DISTRICT

DECISIONS TO CONTRf C71CT COPJTRO'LLING SUPREME COURT OF OHIO

PRECEDENTS IN ITS DETERMINATION THAT PROPER NOTIFICATION WAS GIVEN

FOR POST RELEASE CONTROL IN VIOLATION OF THE DOCTRINES OF STARE

DECISIS, RES JiJDICAT'A AND THE LAW OF THE CASE.

-4-

Clermont CA2014-01-014

{¶ 15} We will address Snead's assignments of error together, In his first assignment

of error, Snead argues the trial court erred by sentencing him to a 21-year prison term and

classifying him as a sexual predator following his 2002 convictions. In his second

assignment of error, Snead alleges the trial court failed to give a proper notification of

postrelease control. Therefore, Snead argues that his conviction and sentence must be

reversed because "the Court failed to comply with mandatory statutes under the Ohio

Revised Code in violation vi` the Due Process Ciauses of the Ohio and United States

Constitutions, Ohio Supreme Court decisions and Stare Decisis." We disagree.

{¶ 161 A postconviction proceeding Is not an appeal of a criminal conviction, but

rather, a collateral civil attack on a criminal judgment. State v. Dillingham, 12th Dist. Butler

Nos. CA2012-02-037, CA2012-02-042, 2012-Ohio-5341, ¶ 8; State v. Calhoun, 86 Ohio

St3d 279, 281 (1999). "In reviewing an appeal of postconviction relief proceedings, this

court applies an abuse of discretion standard." State v. Vore, 12th Dist. Warren Nos.

CA2012-06-049, CA2012-10-106, 2013-Ohio-1490, ¶ 10, citing State v. Wagers, 12th Dist.

Preble No. CA2011-08-007, 2012-Ohio-2256, ¶ 15, "The term 'abuse of discretion' connotes

more than an error of law or of judgment; it irYipiies that the court's attitude is unreasonable,

arbitrary or unconscionable.", State v. Thorntcan, 12th ®ist. Clermont No. CA2012-09-063,

2013-Ohio-2394, ¶ 34; State v^ Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.

{¶ 17} Here, Snead was convicted of a heinous crime in 2002. Snead did not file a. ;^

direct appeai. Nevertheless, since that time, Snead has repeatedly raised the same issues

to challenge his conviction and sentence through various motions for postconviction relief

and other filings with the trial court, this court, and the federal court. Once again, we find

Snead's arguments are without merit.

{¶ 1$} We find that Snead's first assignment of error is meritiess. Snead has

previously raised identical arguments in prior court filings claiming his sentence is contraryto

-5-

Clermont CA2014-01-014

law and therefore those argurients are barred by the doctrine of res judicata.

Under the doctrine of res judicata, a final judgment of convictionbars a convicted defendant who was represented by counselfrom raising and litigating in any proceeding except an appealfrom that judgrn:ent, any defense or any claimed lack of dueprocess that was raised or could have been raised by thedefendant at the trial, which resulted in that judgment ofconviction, or on an appeal from that judgment.

State v. Blankenburg, 12th Dist. Butler No. CA2012-04-088, 2012-Ohio-6175, ¶ 10, quoting

State v. Franklirr,12th Dist. Butler No. CA2002-07-183, 2003-Ohio-1770, ¶ 11. This doctrine

"promotes the principles of finality and judicial economy by preventing endless relitigation of

an issue on which a defendant has already received a full and fair opportunity to be heard."

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 18.

g¶ 19} In his motion, Snead did not raise any new arguments or produce any new

evidence regarding his sente nce. Snead's arguments have been litigated. Accordingly,

Snead's arguments regarding his sentence are without merit based on the doctrine of res

judicata. See State v. Baile^, `l2th Dist. Butler No. CA2003-03-066, 2003-Ohio-5989, ¶ 21;

State v. Poissant, 5th Dist. Fairfield No.13-CA-55, 2014-Ohio-1916; State v. Reed,10th Dist.

Franklin No. 1 1AP-792,2012-Ohio-1 612 ,¶ 14 (the doctrine of resjudicata prohibited review

of his sentence as his claim was or could have been raised at sentencing or in a direct

appeal).

111201 Furthermore, we also find that Snead's 21-year prison term is not contrary to

law. Snead's aggregate sentence is clearly within the permissible statutory range for the

offenses in effect at the time of the commission of the offenses and the sentence was

imposed in accordance with law. See forrner R.C. 2929.14. In addition, Snead's argument

that he was improperly classified as a sexual predator is barred by the doctrine of res

judicata. See, e.g., State v. V^esterfielc/, 10th Dist. Franklin No. 13AP-286, 2013-Ohio-4216,

¶ 6(failure to raise sexual predator classification on direct appeal barred by res judicata).

-6-

Clermont CA2014-01-014

However, we also note that Snead was properly classified as a sexual predator. A sexual

predator includes a person who "has been convicted of or pleaded guilty to comrrtitting a

sexually oriented offense and is likely to engage in the future in one or more sexually oriented

offenses." Former R.C. 2950.01(E). Asexually oriented offense includes the crime of

kidnapping in violation of R.C. 2905.U1 ''i:hafls i:;crnmitted with a purpose to gratifythe sexual

needs or desires of the off^^lder:" Formcr R.0. 2950:01(D). Accordingly, Snead's first

assignment of error is overruled.

f¶ 21} Finally, Sneaa's' sac,und assignment of error is also without merit and barred by

resjudicata.1 See Poissant, 2014-Ohio-1916. (n his brief, Snead alleges the trial court failed

to properly advise him of postrelease control provisions. However, contrary to his arguments,.....:.. _ _.

Snead was properly informed of pos-trelease control and the additional penalties for any such

violation. Indeed, the provisions for postrelease control were contained in the written plea

form, which Snead signed pdortc the trial court's judgment entry and imposition of sentence.

See, e.g., State v. Whitesell, 12th Dist. Butler No. CA2005-04-100, 2006-Ohio-1781 (plea

was valid despite improper colloqay because plea form properly notified defendant about

postrelease control); State v. Irvin, 12th Dist.,Warren iVo. CA2013-03-027, 2013-Ohio-5209.

Accordingly, Snead's second assignment of error is vvitho.ut merit.

{$ 22} Judgment:affirm, ed.

PIPER, P.J., and M. POWELL, J., concur.

1. We also note that Snead never filed a transcript of the sentencing hearing, which was necessary to supporthis allegations that he was never'brally notified" of the postrelease control provisions at the sentencing hearing.As this court has repeatedly acknowledged, because "an appealing party bears the burden of showing error inthe underlying proceeding by reference to matters in the record, the appellant has a duty to provide a transcriptfor appellate review." State v. lMAliarrrs, 12th Dist. Clermont No. CA2012-Ohio-08-060, 2013-C3hio-1387, ¶ 18;Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980); see App.R. 9(B); see also App.R. 16(A)(7)."Where portions of the transcript necessary for resolution of assigned errors are omitted from the record, thereviewing court has nothing to pass upon and thus has no choice but to presume the regularity or validity of thelower court's proceedings and affirm." Knapp at 199; Williams at ¶ 18; State v. Gregory, 12th Dist. Clinton No.CA2006-05-016, 2006-Ohio-7037, 13.

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