[Cite as State v. Feagin, 2016-Ohio-7003.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsMARCO FEAGIN 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. William B. Hoffman, J. 

: Hon. John W. Wise, J. 

: 

: 

: Case No. 16CA21 

: 

: 

: O P I N I O N 

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County 

Court of Common Pleas, Case No. 2003-

CR-0086H 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: September 26, 2016 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

BAMBI COUCH PAGE MARCO FEAGIN 

Prosecuting Attorney Allen Correctional Institute 

BY DANIEL M. ROGERS 2238 North West Street,Box 4501 

Assist. Prosecuting Attorney Lima, OH 45802 

38 S. Park Street 

Mansfield, OH 44902 
[Cite as State v. Feagin, 2016-Ohio-7003.]

Gwin, P.J. 

{¶1} Appellant appeals the April 5, 2016 judgment entry of the Richland County 

Court of Common Pleas denying and finding moot appellant’s motion to convey. Appellee 

is the State of Ohio. 

Facts & Procedural History

{¶2} In 2004, appellant Marco Feagin shot and killed James Williams at the 

American Legion in Mansfield, Ohio. Following a jury trial, appellant was convicted of 

one count of murder, with a firearm specification; one count of possession of a firearm in 

a liquor permit premises; and one count of possession of a weapon under disability. 

{¶3} The trial court sentenced appellant to fifteen years to life on the murder 

count, to be served consecutive to the three year sentence on the firearm specification. 

The trial court sentenced appellant to one year in prison on the charge of possession of 

a weapon in a liquor permit premises, and one year in prison for the charge of possession 

of a weapon under disability. Appellant filed a direct appeal in State v. Feagin, 5th Dist. 

Richland No. 05CA1, 2006-Ohio-676, arguing the comment of a juror during voir dire 

tainted the jury pool and the verdict was contrary to law and against the manifest weight 

of the evidence. We overruled appellant’s assignments of error and affirmed his 

convictions. 

{¶4} On March 24, 2010, appellant was resentenced for the purpose of imposing 

mandatory post-release control. A new sentencing entry was entered on March 25, 2010, 

imposing the original sentence and adding a five year term of mandatory post-release 

control. Appellant filed an appeal from the resentencing entry in State v. Feagin, 5th Dist. 
Richland County, Case No. 16CA21 3 

Richland No. 10CA46, 2011-Ohio-2025. This Court affirmed the trial court’s entry via 

opinion and judgment entry on April 25, 2011. 

{¶5} On March 27, 2015, appellant filed a motion for leave to file delayed motion 

for new trial, which the trial court denied. We overruled appellant’s assignments of error 

as to the denial of the motion in State v. Feagin, 5th Dist. Richland No. 15CA41, 2015-

Ohio-5107. On March 7, 2016, this Court granted appellant’s motion for reconsideration 

and found the trial court erred in resentencing appellant on March 25, 2010 to a term of 

post-release control. We vacated the portion of the March 25, 2010 resentencing entry 

imposing post-release control, but affirmed the remainder appellant’s sentence. 

{¶6} On March 9, 2016, the trial court issued a judgment entry vacating postrelease control as ordered by this Court. The trial court stated that, in accordance with 

this Court’s March 7, 2016 judgment entry, the portion of the March 25, 2010 entry 

imposing post-release control is vacated; however, the remainder of the sentence stands. 

{¶7} On March 24, 2016, appellant filed a motion to convey appellant for hearing 

after vacation of sentence. Appellant argued the trial court was required to issue an order 

to convey him to appear in front of the court for a hearing. The trial court denied 

appellant’s motion to convey on April 5, 2016, finding his motion moot due to the trial 

court’s March 9, 2016 judgment entry. 

{¶8} Appellant appeals the April 5, 2016 judgment entry of the Richland County 

Court of Common Pleas and assigns the following as error: 

{¶9} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE 

APPELLANT WHEN IT EXCEEDED SUBJECT-MATTER JURISDICTION BY ISSUING 

A NUNC PRO TUNC VACATING A RE-SENTENCING CASE NUMBER [2010] AND 
Richland County, Case No. 16CA21 4 

WITHOUT RE-SENTENCING APPELLANT IN VIOLATION OF APPELLANT’S RIGHT 

TO CRIMINAL RULE 32(C) AND CRIM. R. 43. 

{¶10} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE 

APPELLANT CREATING A JUDICIAL BIAS VIOLATING APPELLANT’S DUE 

PROCESS RIGHTS AND ABUSING ITS DISCRETION WHEN VACATING AN INVALID 

IMPOSITION OF PRC WHERE THE COURT ISSUED A JOURNAL ENTRY VACATING 

THE 2010 RE-SENTENCE, WITHOUT THE LANGUAGE TO CURE COST ASSESSED. 

{¶11} “III. WHETHER THE PROSECUTION’S MISSTATEMENTS WERE 

EGREGIOUS ENOUGH TO WARRANT A REVIEW PURSUANT TO CRIMINAL RULE 

52(B) (PLAIN ERROR REVIEW).” 

I. 

{¶12} In appellant’s first assignment of error, he argues the trial court erred in 

vacating his post-release control without conveying him for a hearing. 

{¶13} In State v. Brister, 5th Dist. Guernsey No. 13 CA 21, 2013-Ohio-5874, we 

addressed the same argument as appellant makes in this case. The appellant in Brister

was convicted of murder. Id. The trial court included post-release control language in 

the sentencing entry despite the fact that appellant was convicted of murder, an 

unclassified felony to which the post-release controls statute did not apply. Id. The 

appellant argued his entire sentence was void and a new sentencing hearing was 

required to correct the error. Id. We rejected the appellant’s assignment of error and 

found the inclusion of post-release control language in the sentencing entry did not render 

the appellant’s sentence void and further found no sentencing hearing was required. Id. 
Richland County, Case No. 16CA21 5 

Rather, we found the trial court did not err in issuing a nunc pro tunc entry removing the 

improperly imposed term of post release control. Id. 

{¶14} The instant case is analogous to Brister in that appellant was convicted of 

murder and the trial court included post-release control language in the March 25, 2010 

sentencing entry despite the fact that appellant was convicted of murder, an unclassified 

felony to which the post-release control statute did not apply. In our March 7, 2016 

judgment entry, this Court vacated the post-release control portion of appellant’s 

sentence. The trial court subsequently issued its judgment entry vacating post-release 

control as ordered on March 9, 2016. Pursuant to Brister, the trial court was not required 

to hold a hearing prior to vacating the post-release control portion of appellant’s sentence. 

Accordingly, the trial court did not err in denying appellant’s motion to convey as moot. 

Appellant’s first assignment of error is overruled. 

II. 

{¶15} In his second assignment of error, appellant argues the trial court erred 

when it issued its “judgment entry vacating post-release control as ordered” without 

vacating court costs previously assessed against appellant. 

{¶16} Appellant did not appeal the March 9, 2016 judgment entry vacating postrelease control. In his notice of appeal, appellant states he appeals from the April 5, 2016 

judgment entry denying his motion to convey and in his docketing statement, appellant 

lists April 5, 2016 as the date(s) of the judgment entry being appealed from. Accordingly, 

because appellant did not appeal from the March 9, 2016 entry, he has waived any error 

that could have been raised with respect to that entry. Kolano v. Kolano, 5th Dist. 
Richland County, Case No. 16CA21 6 

Tuscarawas No. 2014 AP 060026, 2015-Ohio-1369. Further, in appellant’s motion to 

convey, there is no argument or request for the trial court to vacate court costs. 

{¶17} Finally, the only entry from the trial court referencing court costs is the 

“resentencing entry” from March 25, 2010. Appellant appealed from the trial court’s 

March 25, 2010 entry and thus could have and should have raised any claims concerning 

court costs in his appeal of that judgment entry in State v. Feagin, 5th Dist. Richland No. 

10 CA 46, 2011-Ohio-2025. Appellant did not raise the issue of court costs in his 2010 

appeal or in his 2015 appeal. Accordingly, the issue of court costs is res judicata as 

defined in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Appellant’s second 

assignment of error is overruled. 

III. 

{¶18} In his final assignment of error, appellant argues prosecutorial misconduct 

during his trial. 

{¶19} We first note that appellant failed to raise the issue of prosecutorial 

misconduct in his motion to convey, the judgment entry appellant appeals from in this 

case. As noted above, the notice of appeal and docketing statement state this is an 

appeal from the April 5, 2016 judgment entry. Thus, such an argument is waived in this 

appeal. State v. Brewer, 2nd Dist. Montgomery No. 26153, 2015-Ohio-693. 

{¶20} Notwithstanding the issue of waiver, we find appellant’s claim of 

prosecutorial misconduct is barred by res judicata. Appellant raises the same claim of 

prosecutorial misconduct that this Court rejected pursuant to res judicata in State v. 

Feagin, 5th Dist. Richland No. 10 CA 46, 2011-Ohio-2025 and State v. Feagin, 5th Dist. 
Richland County, Case No. 16CA21 7 

Richland No. 15 CA 41, 2015-Ohio-5107. Accordingly, appellant’s third assignment of 

error is overruled. 

{¶21} Based on the foregoing, we overrule appellant’s assignments of error. The 

April 5, 2016 judgment entry of the Richland County Court of Common Pleas is affirmed. 

 

By Gwin, P.J., 

Hoffman, J., and 

Wise, J., concur