[Cite as State v. Kellie, 2023-Ohio-1015.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

ERIC L. KELLIE,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 21 MA 0048

Criminal Appeal from the

Court of Common Pleas of Mahoning County, Ohio

Case No. 1997 CR 851

BEFORE:

Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT:

Reversed.

Vacated.

Atty. Gina DeGenova, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant 

Chief Prosecuting Attorney, Criminal Division, 21 West Boardman Street, 6th Floor, 

Youngstown, Ohio 44503, for Plaintiff-Appellee

Atty. Wesley A. Johnston, P.O. Box 6041, Youngstown, Ohio 44501-6041, for DefendantAppellant

Dated: March 24, 2023
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Case No. 21 MA 0048

WAITE, J.

{¶1} Appellant Eric L. Kellie appeals an April 23, 2021 judgment entry of the 

Mahoning County Court of Common Pleas which added a postrelease control term into 

his earlier October 28, 1999 sentencing entry. Appellant argues that postrelease control 

cannot be imposed at this late date for several reasons. Appellant also argues that the 

new entry incorrectly calculates his jail-time credit and that the original imposition of 

consecutive sentences was erroneous. For the reasons provided, the judgment of the 

trial court is reversed. The April 22, 2021 entry is vacated and the entry dated October 

28, 1999 is reinstated.

Factual and Procedural History

{¶2} This case stems from a 1997 incident involving two separate shootings. 

According to the limited facts in the record, the day after someone shot at Appellant and 

missed, Appellant saw the shooter at a local store and approached him. The two men 

argued. At one point, Appellant believed the man was reaching for his gun, so Appellant 

pulled out his own gun and shot. However, he missed his intended victim and shot 

another man, who died as a result. 

{¶3} On November 14, 1997, Appellant was indicted on one count of aggravated

murder, a felony in violation of R.C. 2903.01(A) with two capital specifications and a 

firearm specification. He was also charged with one count of attempted aggravated 

murder with a firearm specification. 

{¶4} On September 1, 1999, Appellant pleaded guilty to amended counts of 

murder and felonious assault. On October 28, 1999, the trial court sentenced Appellant 
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to an aggregate sentence of twenty-three years of incarceration. The court did not impose 

postrelease control at the hearing or within the sentencing entry.

{¶5} At some point, the Ohio Department of Rehabilitation and Correction 

(“ODRC”) apparently contacted either the state or the court with information about 

Appellant’s upcoming parole hearing. ODRC noted its concern that postrelease control 

had not been imposed and requested that the issue be corrected. Based on this 

suggestion, on April 23, 2021, the court held what it called a “resentencing.” At the time,

Appellant’s parole hearing was five days away. Based on this record, it is unclear whether 

Appellant has since been released on parole. 

{¶6} At the “resentencing” the court inquired whether postrelease control could 

be imposed at this late date. The state advocated that a postrelease control term could 

still be imposed while defense counsel opposed imposition of post release control. The 

court stated “[h]ere’s what I’m going to do: I’m going to impose the post-release control. 

If he doesn’t get out [on parole], you can file a motion for reconsideration of this whole 

thing and I’ll look into the case law then.” (4/23/21 Resentencing Hrg. Tr., p. 8.) 

Accordingly, on that same date the court filed a new sentencing entry, imposing on 

Appellant a postrelease control term. Relevant here, the court apparently simply copied 

the remainder of the previous entry, which stated that Appellant would receive credit for 

748 days served. By this point, however, Appellant had served approximately 8,225 days. 

It is from this entry that Appellant timely appeals.

{¶7} This case has had a unique procedural history on appeal, as well. After 

Appellant was granted a fourth extension of time to file his brief in this matter, he filed a 

motion to supplement the record. While his motion to supplement the record was 
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pending, Appellant filed a motion for leave to file a brief instantar. Appellant then filed to 

dismiss his motion for leave to file his brief instantar and the attached brief. We noted the 

confusion, but denied that motion. On June 27, 2022, the state filed a confession of 

judgment as to assignments of error one through three, but failed to address the 

remaining assignments of error. Accordingly, we ordered the state to file a brief or a 

confession of judgment regarding the remaining two assignments of error. The state 

complied on November 15, 2022.

ASSIGNMENT OF ERROR NO. 1

The Trial Court lacked jurisdiction to impose post-release control per ORC 

2967.28 upon this Defendant, as this was a hearing at Ohio Department of 

Corrections at their request, and the Trial Court improperly calculated the 

jail time credit of Appellant, and imposition violated the United States 

Double Jeopardy Clause of the Fifth Amendment protections against 

imposition of multiple criminal punishments for the same offense in 

successive proceedings.

ASSIGNMENT OF ERROR NO. 2

The Trial court violated Appellant's 14th Amendment US Constitution and 

Ohio Constitution Due Process Rights by imposing the requirements of 

ORC 2967.28, when current Ohio case law requires that the imposition of 

ORC 2967.28 be immediately appealed in direct appeal, and that did not 

occur and could not occur in this instance.
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ASSIGNMENT OF ERROR NO. 3

The Trial Court lacked jurisdiction to impose post release control per ORC 

2967.28 upon this Defendant, as Defendant had served the felonious 

assault time and was no longer under jurisdiction of the court for same, and 

imposition of same violated as this was a hearing violated the United States 

Double Jeopardy Clause of the Fifth Amendment protections against 

imposition of multiple criminal punishments for the same offense in 

successive proceedings.

{¶8} Appellant argues in each of these assignments that the trial court lacked 

jurisdiction to impose a postrelease control term, since the statute governing postrelease 

control and corresponding law did not yet exist at the time of his plea and original 

sentencing. Even so, Appellant cites to recent caselaw from the Ohio Supreme Court 

holding that the imposition of postrelease control must be addressed on direct appeal, 

which could not have occurred in this case because, again, the postrelease control law

did not exist at that time. Regardless, Appellant contests the imposition of postrelease 

control in this matter because he has completed his prison term for felonious assault.

{¶9} The state confesses judgment as to the third argument. Because Appellant 

has completed his sentence on the relevant conviction, postrelease control could not be 

ordered. The state then claims that Appellant’s first two assignments are moot.

{¶10} It is clear from this record that the trial court lacked jurisdiction to sentence 

Appellant to postrelease control and improperly “resentenced” Appellant. As there was 

no legal support for the court to enter a new sentence, the sentence is invalid and must 
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be vacated. Hence, Appellant’s first, second, and third assignments of error have merit 

and are sustained and the April 29, 2021 entry is hereby vacated.

ASSIGNMENT OF ERROR NO. 4

The Trial Court improperly calculated the jail time credit of Appellant.

{¶11} Appellant argues that the court awarded him 748 days of credit when he 

has served 8,225 days. 

{¶12} It appears that the state may have misunderstood Appellant’s argument. 

The state argues that Appellant should have challenged his award of jail-time credit on 

direct appeal. However, Appellant does not take issue with the original calculation of jailtime credit by the court. Instead, he contends the new sentencing entry does not reflect 

the time he has served since his original sentence. The state also observes that the 

Department of Corrections is obligated to properly credit Appellant for any time he has 

served under their supervision.

{¶13} Because the trial court’s April 22, 2021 judgment entry is vacated,

Appellant’s original sentencing entry of October 28, 1999 is reinstated and this 

assignment of error is moot.

ASSIGNMENT OF ERROR NO. 5

The Trial Court failed to expressly make the findings required in ORC 

2929.14, give the reasons supporting those findings at the time of 

sentencing, and include said findings in its subsequent judgment entry.
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{¶14} Appellant challenges the trial court’s original imposition of consecutive 

sentences, found in both sentencing entries. Appellant does not provide specific 

arguments and generally presents conclusory statements making it difficult to evaluate 

his arguments.

{¶15} The state responds by arguing that res judicata bars Appellant’s argument,

as he should have and could have challenged the imposition of consecutive sentences 

on direct appeal following his original sentencing in 1999.

{¶16} The state is correct in that Appellant was required to challenge the original 

imposition of consecutive sentences by means of a direct appeal of his 1999 sentencing. 

As such, Appellant’s fifth assignment of error is without merit and is overruled.

Conclusion

{¶17} Appellant argues for several reasons that postrelease control was 

improperly imposed decades after his original sentencing. Appellant also argues that the 

new entry incorrectly calculates his jail-time credit, and that the imposition of consecutive 

sentences was erroneous. For the reasons provided, the judgment of the trial court is 

reversed. The April 22, 2021 entry is vacated and the October 28, 1999 entry is 

reinstated.

Robb, J., concurs. 

Hanni, J., concurs. 
[Cite as State v. Kellie, 2023-Ohio-1015.]

For the reasons stated in the Opinion rendered herein, Appellant’s first, second 

and third assignments of error are sustained, his fourth assignment is moot and his fifth 

assignment is overruled. It is the final judgment and order of this Court that the judgment 

of the Court of Common Pleas of Mahoning County, Ohio, is reversed. We hereby vacate 

the April 22, 2021 entry and reinstate the October 28, 1999 entry in this matter. Costs to 

be taxed against the Appellee.

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.