[Cite as State v. Hogle, 2017-Ohio-4096.]

 

 

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 GREENE COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

MICHAEL A. HOGLE 

Defendant-Appellant 

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Appellate Case No. 2016-CA-30 

Trial Court Case No. 2013-CR-353 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 2nd day of June, 2017. 

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ELIZABETH ELLIS, Atty. Reg. No. 0074332, 55 Greene Street, Xenia, Ohio 45502 

 Attorney for Plaintiff-Appellee 

 

ANDREA OSTROWSKI, Atty. Reg. No. 0075318, 20 S. Main Street, Springboro, Ohio 

45066 

 Attorney for Defendant-Appellant 

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HALL, P.J. 
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{¶ 1} Michael Hogle was indicted on October 4, 2013 for two counts of rape, in 

violation of R.C. 2907.02(A)(2), each a felony of the first degree; and one count of gross 

sexual imposition (GSI), in violation of R.C. 2907.05(A)(1), a felony of the fourth degree. 

He was found guilty of one count of rape (Count 2) and the GSI (Count 3) and not guilty 

of the other charge by a jury on June 11, 2014. On September 3, 2014, the trial court 

sentenced Hogle to three years imprisonment for the rape and eighteen months for the 

GSI. The trial court ordered that the sentences be served concurrently to one another, for 

an aggregate sentence of three years in prison. Hogle was also required to register as a 

Tier III sex offender. Hogle appealed his convictions and we affirmed on his direct appeal. 

State v. Hogle, 2d Dist. Greene No. 2014-CA-41, 2015-Ohio-2783. 

{¶ 2} On May 23, 2016 Hogle filed a Motion to Correct Sentence in the trial court. 

In that filing he asserted he was not challenging his convictions, but only his sentence. 

He argued that his September 3, 2014 “Judgment Entry (sentencing)” was incorrect for 

indicating that his sentences were mandatory. For count 2, the entry stated that the 

sentence imposed was 3 years “which is not a mandatory term,” and the same 

terminology appears in the sentence for count 3. (Doc. #80). However, the entry also 

stated that his prison terms were designated to be served “concurrently for a total 

sentence of 3 years of which 3 years is mandatory.”1 He also contended that the entry 

was incorrect insofar as it stated that “the defendant may be eligible to earn days of credit” 

under R.C. 2967.193. He also complained that a mandatory term of 5 years of post-

 

1 The sentencing entry is typewritten except the “3” where the number of mandatory years 

appears was handwritten after some other unreadable typewritten number in that space 

was crossed out. 
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release control was improperly imposed. Finally, Hogle noted that he was designated as 

a Tier III sex offender and the entry stated “The defendant is to register as a Tier III sexual 

offender” but the words “Tier I” were written in ink thereafter. 

{¶ 3} The State filed a response to appellant’s motion in which they argued that 

none of the issues raised in Hogle’s motion were raised in his direct appeal and therefore 

they were now barred by res judicata. Even if res judicata did not apply, the State 

asserted, all of the sentencing terms were correct except whether the sentence for rape 

was a statutorily mandatory term. In that regard the State indicated on the record at 

sentencing the trial court correctly imposed a mandatory sentence for the rape conviction 

and the clerical error could be corrected by an amended entry. 

{¶ 4} The transcript of the sentencing hearing reflects the court stated “So in regard 

to Count II, the Court will impose the mandatory prison sentence.” (Transcript of Final 

Disposition at 16). 

{¶ 5} On July 13, 2016, the court issued an Order and Entry “Upon Motion of the 

State of Ohio, and for good cause shown, the Defendant’s Motion to Correct Sentence is 

hereby dismissed and the sentencing entry dated September 3, 2014 be amended to 

reflect Count 2 being a mandatory prison term.” (Doc #111). Hogle appealed. 

{¶ 6} Hogle’s assigned appellate counsel filed a brief under Anders v. California, 

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that “counsel cannot find any 

arguments with merit to raise with the Court.” Anders Brief at 2. Counsel concludes the 

brief with a request for permission to withdraw. By order filed on January 31, 2017, we 

informed Hogle of the Anders filing and advised him of both his right to file his own brief 

and the time limit for doing so. Hogle has not filed anything, and the time for filing has 
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expired. 

{¶ 7} Counsel does not suggest any potential assignments of error but does 

analyze the arguments that Hogle raised in the trial court motion. Initially counsel 

recognized that all of the issues Hogle raised could have been raised in his direct appeal, 

they were not, and he is therefore precluded from raising them now. Counsel correctly 

notes, contrary to Hogle’s motion, that any conviction for rape requires a mandatory 

prison sentence. R.C. 2929.13(F)(2). Furthermore, his request that post-release control 

be designated as non-mandatory is contrary to R.C. 2967.28(B)(1), which makes postrelease control of five years mandatory for any felony sex offense. In regard to the “Tier 

I” interlineation, counsel reasoned that the trial court correctly, although perhaps 

unclearly, designated Hogle as a Tier III registrant for the rape offense and a Tier I 

registrant for the GSI. 

{¶ 8} We have performed our duty under Anders to conduct an independent review 

of the record. We thoroughly have reviewed the Anders brief that was filed along with the 

docket, the various filings, the sentencing transcript, and the sentencing entries and 

orders. We agree with counsel’s assessment and references to statutory imperatives 

about Hogle’s sentences. Any of the asserted errors in appellant’s motion to correct 

sentence could have been raised in his direct appeal but they were not. He cannot raise 

any issues now regarding lawful elements of his sentence. State v. Powell, 2d Dist. 

Montgomery No. 26935, 2016-Ohio-5870, ¶9. The only portion of the sentencing entry 

that could even conceivably be subject to additional review is the inconsistent “not a 

mandatory term” and “of which 3 years is mandatory” language for the rape sentence 

which we address separately below. Because appellant’s assertions in his motion could 
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have been raised in the direct appeal, they are barred by res judicata. We see no arguable 

merit to his appeal and consider it wholly frivolous. 

{¶ 9} Even if we were to conclude that a challenge to the inconsistent “not a 

mandatory term” and “of which 3 years is mandatory” language is not barred by res 

judicata, we would still conclude this appeal has no arguable merit for several reasons. 

Statutorily a rape sentence is mandatory. R.C. 2929.13(F)(2). We note the “3 years is 

mandatory” phrase could only have referred to the 3 year rape sentence. The GSI 

sentence was only for 18 months and was not designated as mandatory. Our conclusion 

is also confirmed by the transcript of the sentencing where the Court imposed the rape 

sentence as mandatory. The trial court has corrected the inconsistent language error in 

the entry. Crim.R. 36 provides that clerical mistakes in judgments may be corrected at 

any time. A nunc pro tunc entry may be used to correct a judgment by making it reflect 

what actually happened. State v. Lester, 130 Ohio St.3d 303, 2011–Ohio–5204, 958 

N.E.2d 142, ¶ 20. Considering each of these factors we find no arguable merit of the 

appeal of the trial court’s resolution of Hogle’s motion. 

{¶ 10} We have found no non-frivolous issues for review. Counsel’s motion to 

withdraw is granted. Accordingly, the judgment of the Greene County Common Pleas 

Court is affirmed. 

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FROELICH, J. and TUCKER, J., concur. 

Copies mailed to: 

Elizabeth Ellis 

Andrew Ostrowski 
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Michael Hogle 

Hon. Stephen Wolaver