State v. Klein

[Cite as State v. Klein, 

.]




                            IN THE COURT OF APPEALS
                   FIRST APPELLATE DISTRICT OF OHIO
                              HAMILTON COUNTY, OHIO



 STATE OF OHIO,                             :          APPEAL NO. C-220170
                                                       TRIAL NO. B-0502958A
          Plaintiff-Appellee,               :

    vs.                                     :               O P I N I O N.

 THOMAS KLEIN,                              :

       Defendant-Appellant.                 :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: December 21, 2022



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,

Thomas Klein, pro se.
                  OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, Judge.

       {¶1}   Defendant-appellant Thomas Klein appeals the Hamilton County

Common Pleas Court’s judgment denying the relief sought in his “Renewal of Motion

to Vacate Void Sentence under [R.C.] 2929.191 And Presentence Objections” and his

other “pending motions,” which included Klein’s motion for a hearing to present

evidence to rebut the presumption under R.C. 2903.42(A)(1) that he is required to

enroll in Ohio’s violent-offender database (“the VOD”). Because Klein is entitled to a

hearing on his motion to rebut the VOD-enrollment presumption, we reverse the

court’s judgment in part and remand this cause to the common pleas court with

instructions to afford Klein a hearing as contemplated under R.C. 2903.42(A)(4).

                                    Procedural History

       {¶2}   In 2006, Klein was convicted of aggravated burglary, having weapons

while under a disability, and four counts of kidnapping and was sentenced to

consecutive prison terms totaling 32 years. He unsuccessfully challenged his

convictions on direct appeal, State v. Klein, 1st Dist. Hamilton No. C-060519 (June

20, 2007), and in postconviction motions filed with the common pleas court in 2013

and 2018.

       {¶3}   In 2019, Klein filed a postconviction motion seeking in part to modify

his sentences, arguing that the evidence was legally insufficient to support three of his

four kidnapping convictions, and that his aggravated-burglary and kidnapping

offenses were subject to merger under R.C. 2941.25. He also sought to rebut the VOD-

enrollment presumption. The common pleas court dismissed the motion to the extent

it sought modification of the sentences and overruled the request to rebut the VOD-

enrollment presumption because that matter was not “ripe for consideration.” On

appeal, this court reversed the lower court’s judgment overruling Klein’s motion to

rebut the VOD-enrollment presumption, holding that under “the VOD statutes, Klein’s

right to rebut the VOD-enrollment presumption arose on March 20, 2019, when the


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                  OHIO FIRST DISTRICT COURT OF APPEALS



statutes became effective,” and remanded for further proceedings. We affirmed the

trial court’s judgment in all other respects. State v. Klein, 

, 

, ¶ 24 and 26 (1st Dist.).

       {¶4}    On remand, Klein filed a “Notice of Intent to Present Evidence and

Request for Hearing under [R.C.] 2903.42(A)(1)” as well as a “brief” in support,

arguing that he was not the principal offender of the charged offenses because he was

“actually innocent” of these crimes, and therefore, he should not be required to enroll

in the VOD. In addition, he filed a supplement to his brief, setting forth the following

errors that occurred at his trial: his due-process rights were violated when the trial

court prevented him from fully cross-examining his accuser and prohibited him from

presenting relevant mens-rea and “critical-witness” evidence; his retrial was in

violation of constitutional double-jeopardy protections when the trial court erred by

declaring a mistrial in his first jury trial; the evidence was insufficient to support three

of his kidnapping convictions; his fourth kidnapping conviction was against the

manifest weight of the evidence; and his kidnapping and aggravated-burglary offenses

should have merged.

       {¶5}    Next, Klein filed a “Renewal of Motion To Vacate Void Sentence Under

[R.C.] 2929.191 And Presentence Objections,” asserting that his original sentences

were “null and void” because the trial court had improperly imposed postrelease

control. Therefore, Klein argued that he was entitled to a new sentencing hearing

under R.C. 2929.191, where he can raise the same challenges to his convictions and

sentences that were outlined above and included in his supplemental brief to his

motion requesting a hearing under the VOD statutes.

       {¶6}    The common pleas court summarily denied these motions, and Klein

now appeals.




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                   OHIO FIRST DISTRICT COURT OF APPEALS



                                   Assignments of Error

        {¶7}    In his first assignment of error, Klein argues that the common pleas

court “erred by refusing to provide Klein his legal due under [R.C.] 2929.191(A) when

moved to do so.” Under this assignment, Klein contends that he is entitled to a de

novo sentencing hearing under R.C. 2929.191(A) because the trial court improperly

imposed postrelease control. We overrule this assignment of error because the trial

court properly imposed postrelease control as a part of Klein’s sentence when it

notified him at the original sentencing hearing and in the sentencing entry that his

sentence would include a mandatory five-year term of postrelease control upon his

release from prison and informed him of the consequences of violating postrelease

control. The trial court was not required, as Klein argues, to notify him of the

postrelease-control period applicable to each offense. In multiple-offense cases, the

sentencing court only has a duty to notify the defendant of and impose the longest

term of postrelease control applicable under R.C. 2967.28(B). State v. Winters, 8th

Dist. Cuyahoga No. 109560, 

, ¶ 8; State v. Davic, 10th Dist. Franklin

No. 18AP-569, 

, ¶ 13; State v. Kozic, 7th Dist. Mahoning No. 17 MA

0100, 

; State v. Reed, 

, 

 (6th

Dist.), ¶ 12.

        {¶8}    In his second assignment of error, Klein contends that the court erred

by failing to hold a hearing as contemplated under R.C. 2903.42 on his motion to rebut

the VOD-enrollment presumption and by “refusing to address the plain error

presented it upon Klein’s establishing of his actual innocence.” The state concedes,

and we agree, that it was error for the common pleas court to deny Klein’s motion to

rebut the VOD-enrollment presumption without first holding a hearing. In our prior

decision addressing Klein’s 2019 postconviction motions, we specifically noted that

the VOD statutes provided “a right to a hearing on the motion to rebut.” Klein, 2020-

Ohio-6948, 

, citing R.C. 2903.42(A)(1). But in that hearing,


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                 OHIO FIRST DISTRICT COURT OF APPEALS



the common pleas court is not tasked with reconsidering Klein’s factual guilt or

entertaining a collateral attack on Klein’s convictions. Instead, the court, when

considering a motion to rebut the VOD-enrollment presumption, is to only determine

whether the defendant was the principal offender of the charged offenses and, if not,

whether the defendant should still be required to enroll in the VOD. See State v. Hall,

, 

 (2d Dist.) (the only method to rebut the presumption

of having to register as a violent offender is to prove defendant is not the principal

offender); R.C. 2903.42(A)(4). Therefore, the court did not err by failing to address

Klein’s claims of plain error and actual innocence.

       {¶9}   Accordingly, we sustain the second assignment of error in part and

overrule it in part, and remand this cause to the common pleas court with instructions

to hold a hearing as contemplated under R.C. 2903.42(A)(1) and (4).

       {¶10} In Klein’s third, fourth, fifth, sixth and seventh assignments of error, he

sets forth the same challenges to his convictions and sentences made in his

supplemental brief to his motion for a hearing to rebut the VOD-enrollment

presumption and his motion containing his “presentence objections,” and thus, these

assignments can reasonably be read together to contend that the common pleas court

erred by overruling these postconviction challenges to his convictions and sentences.

We consider these assignments together and overrule them because these claims are

barred by the law-of-the-case doctrine and/or res judicata. See generally Nolan v.

Nolan, 

, 

 (1984); State v. Perry, 

, 

 (1967), paragraph nine of the syllabus. Here, this court has recently

determined that Klein’s constitutional challenges to his sentences and/or convictions

that he had raised again on remand were untimely postconviction claims that the

common pleas court did not have jurisdiction to consider. Klein, 

,

. And Klein’s nonconstitutional challenges to his convictions and

sentences raised on remand had been either raised and rejected in his direct appeal or


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                  OHIO FIRST DISTRICT COURT OF APPEALS



could have been raised and were not. Klein, 1st Dist. Hamilton No. C-060519 (June

20, 2007).

                                         Conclusion

       {¶11} Based on the foregoing, we reverse the common pleas court’s judgment

in part and remand this cause for further proceedings consistent with this opinion and

the law. In all other respects, the court’s judgment is affirmed.

                     Judgment affirmed in part, reversed in part, and cause remanded.


BERGERON, J., concurs.
MYERS, P.J., concurs in judgment only.
Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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