[Cite as State v. Shepherd, 2021-Ohio-507.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 109496 

 v. : 

 

TYSHAWN SHEPHERD, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: February 25, 2021 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-08-518815-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Mary M. Frey, Assistant Prosecuting 

Attorney, for appellee. 

Cullen Sweeney, Cuyahoga County Public Defender, for 

appellant. 

LISA B. FORBES, J.: 

Tyshawn Shepherd (“Shepherd”) appeals the trial court’s denial of his 

motions to vacate postrelease control. After reviewing the facts of the case and 
pertinent law, we affirm the trial court’s judgment, because Shepherd’s motions are 

barred by the doctrine of res judicata. 

I. Facts and Procedural History 

On January 21, 2009, the trial court journalized1 Shepherd’s guilty 

plea to aggravated robbery and kidnapping, both first-degree felonies. This journal 

entry states that “defendant advised of post release control for 5 years.” On 

January 23, 2009, the trial court journalized Shepherd’s seven-year aggregate 

prison sentence. This journal entry states that “post release control is part of this 

prison sentence for 5 years for the above felony(s) under R.C. 2967.28.” 

Shepherd served his prison sentence and was released in 2015. 

Shepherd filed successive pro se motions to vacate postrelease control on 

December 18, 2019, and January 8, 2020. The trial court denied both motions on 

January 16, 2020, and it is from this denial that Shepherd now appeals. 

II. Law and Analysis 

This case is controlled by the Ohio Supreme Court’s recent opinion in 

State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 42, which 

states that “[w]hen the sentencing court has jurisdiction to act, sentencing errors in 

the imposition of postrelease control render the sentence voidable, not void, and the 

sentence may be set aside if successfully challenged on direct appeal.” Harper

 1 We refer to the journalization dates rather than the plea hearing and sentencing 

hearing dates because Shepherd did not file the transcripts from his plea and sentencing 

hearings, and we have nothing to review other than the journal entries. 
reversed the judgment of the appellate court, “to the extent that it remanded the case 

to the trial court to correct the entry imposing postrelease control.” Id. at ¶ 44. 

The Ohio Supreme Court issued the following admonition in Harper: 

“we caution prosecuting attorneys, defense counsel, and pro se defendants 

throughout this state that they are now on notice that any claim that the trial court 

has failed to properly imposed postrelease control in the sentence must be brought 

on appeal from the judgment of conviction or the sentence will be subject to res 

judicata.” Id. at ¶ 43. 

The Ohio Supreme Court clarified that when a sentence is voidable 

under Harper, “the doctrine of res judicata will apply to collateral attacks on it.” 

State v. Hudson, Slip Opinion No. 2019-0646, 2020-Ohio-3849, ¶ 17. 

Under the doctrine of res judicata, a final judgment of conviction bars 

the convicted defendant from raising and litigating in any proceeding, 

except an appeal from that judgment, any defense or any claimed lack 

of due process that was raised or could have been raised by the 

defendant [in the trial court] which resulted in that judgment of 

conviction or on an appeal from that judgment. 

State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). This court recently 

held that res judicata barred a collateral attack on the imposition of postrelease 

control, because the defendant “could have, but did not, raise any issue regarding 

the postrelease control and his sentencing entry in his direct appeal.” State v. Scott, 

8th Dist. Cuyahoga No. 109436, 2020-Ohio-3676, ¶ 13. 

In the instant case, it is undisputed that the trial court had jurisdiction 

to sentence Shepherd in 2009, and that Shepherd did not file a direct appeal of his 
convictions and sentence at that time. Therefore, res judicata now bars Shepherd’s 

challenge to the postrelease control imposed as part of his sentence, and Shepherd’s 

sole assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

LISA B. FORBES, JUDGE 

MICHELLE J. SHEEHAN, P.J., and 

MARY EILEEN KILBANE, J., CONCUR