[Cite as State v. Rayburn, 2010-Ohio-5693.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

JACKSON COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No: 09CA6 

 : 

 v. : 

 : DECISION AND

STEPHEN I. RAYBURN, : JUDGMENT ENTRY

 : 

 Defendant-Appellant. : File-stamped date: 11-18-10 

APPEARANCES:

Stephen I. Rayburn, pro se, for Appellant. 

Jonathan D. Blanton, Jackson County Prosecutor, Jackson, Ohio, for Appellee. 

Kline, J.: 

{¶1} Stephen I. Rayburn (hereinafter “Rayburn”) pled guilty to two counts of 

sexual battery, and the Jackson County Court of Common Pleas sentenced Rayburn to 

a total of eight years in prison. On appeal, Rayburn initially contends that he should 

have received the minimum sentence for each count of sexual battery. Because 

Rayburn agreed to the eight-year prison term as part of a plea agreement, we will not 

review Rayburn’s sentence on appeal. Next, Rayburn contends that postrelease control 

violates the Double Jeopardy clause of the United States Constitution. Because the 

punishment for a postrelease control violation does not implicate Double Jeopardy, we 

disagree. Accordingly, we affirm the judgment of the trial court. 

I. 
Jackson App. No. 09CA6 2 

{¶2} A Jackson County Grand Jury indicted Rayburn for two counts of sexual 

battery, in violation of R.C. 2907.03, and five counts of rape, in violation of R.C. 

2907.02. Eventually, Rayburn and the state reached a plea agreement. Rayburn 

agreed to plead guilty to the two sexual-battery charges, and the state agreed to 

dismiss the five rape charges. Additionally, the state agreed to recommend consecutive 

four-year prison sentences for a total combined prison term of eight years. 

{¶3} Rayburn pled guilty, and the trial court imposed the recommended eightyear sentence. The trial court also informed Rayburn that he would be subject to 

mandatory postrelease control. (At Rayburn’s plea and sentencing hearing, the trial 

court informed Rayburn that he would “be subject to Post-Release Control for a period 

of five years.” Rayburn’s judgment of conviction, however, states that “he will be 

subject to three years of post release control[.]” Because sexual battery is a felony sex 

offense, Rayburn is indeed subject to five years of postrelease control, not three years. 

See R.C. 2967.28(B)(1). And because his sentence was imposed after July 11, 2006, 

the trial court may use the procedure in R.C. 2929.191 to correct the term of Rayburn's 

postrelease control. See State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, at 

paragraph two of the syllabus.) 

{¶4} Rayburn filed a motion for leave to file a delayed appeal. We granted that 

motion, and Rayburn now asserts the following two assignments of error: I. “THE TRIAL 

COURT ERRED IN SENTENCING THE DEFENDANT OVER THE STATUTORY 

MAXIMUM IN VIOLATION OF HIS SIXTH AMENDMENT[.] [sic]” And, II. “THE TRIAL 

COURT ERRED IN IMPROPERLY INSTRUCTING PRC ‘POST RELEASE CONTROL’ 

AND PRC VIOLATES THE CLAUSE OF DOUBLE JEOPARDY[.]” 
Jackson App. No. 09CA6 3 

II. 

{¶5} In his first assignment of error, Rayburn contends that he should have 

received the minimum sentence for each count of sexual battery; i.e., a total combined 

prison term of two years. Ostensibly, Rayburn raises constitutional issues in his first 

assignment of error. But in reality, Rayburn is challenging Ohio’s sentencing scheme in 

the aftermath of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. 

{¶6} Here, we will not review Rayburn’s first assignment of error. As part of his 

plea agreement, Rayburn agreed to the state’s recommendation of an eight-year prison 

sentence. This is relevant because R.C. 2953.08(D)(1) provides that “[a] sentence 

imposed upon a defendant is not subject to review under this section if the sentence is 

authorized by law, has been recommended jointly by the defendant and the prosecution 

in the case, and is imposed by a sentencing judge.” 

{¶7} We find that R.C. 2953.08(D)(1) applies to Rayburn’s sentence. First, 

Rayburn’s sentence is clearly authorized by law. “A sentence is authorized by law if it is 

within the statutory range of available sentences.” State v. Baird, Columbiana App. No. 

06-CO-4, 2007-Ohio-3400, at ¶13, citing State v. Gray, Belmont App. No. 02 BA 26, 

2003-Ohio-805, at ¶10. See, also, State v. Straley, Highland App. No. 09CA4, 2009-

Ohio-6170, at ¶25. Rayburn pled guilty to two third-degree felonies. See R.C. 

2907.03(B). Because the maximum penalty for a third-degree felony is five (5) years in 

prison, see R.C. 2929.14(A)(3), the trial court could have sentenced Rayburn to a 

combined prison term of ten (10) years. Thus, the actual sentence of eight (8) years is 

well within the statutory range. 
Jackson App. No. 09CA6 4 

{¶8} Furthermore, as the record demonstrates, the defendant and the 

prosecution jointly recommended the eight-year sentence as part of a plea agreement. 

{¶9} “ASSISTANT PROSECUTOR: * * * [I]n this particular case I think the 

Defendant desires to plead to Counts One and Two of his indictment, and the State 

uh... if that’s what he chooses to do, we would dismiss Three through Seven. Uh... we 

have made a recommendation of four years actual incarceration on each charge. 

{¶10} “JUDGE: Okay and... what is that? Is that a... 

{¶11} “ASSISTANT PROSECUTOR: Sexual Battery is what we’re talking about. 

{¶12} “JUDGE: Okay. So, counts Three through Seven would be dismissed 

then? 

{¶13} “ASSISTANT PROSECUTOR: That is correct Your Honor. And just uh... 

for the record uh... throughout this whole process uh... through the aid of our Advocate 

in our office, uh... we have been in touch with the uh... victims in this case and they are 

aware of this and are agreeable to this arrangement. 

{¶14} “JUDGE: Okay. And [Rayburn’s trial counsel], is that your understanding? 

{¶15} “[RAYBURN’S TRIAL COUNSEL]: Yes Your Honor, that’s our 

understanding. 

{¶16} “JUDGE: Okay. And, Mr. Rayburn, is that your understanding? 

{¶17} “DEFENDANT: Yes.” (Ellipses Sic.) 

{¶18} Later, Rayburn and the prosecution once again agreed on the 

recommended sentence. 

{¶19} “ASSISTANT PROSECUTOR: Yeah, our recommendation Your Honor 

has been uh... worked out in the plea was he would enter the guilty charges, which he 
Jackson App. No. 09CA6 5 

has done, and the State would recommend four years actual in each of these counts to 

run consecutive. Obviously he would get credit for time served. I have no objection to 

that. 

{¶20} “JUDGE: Okay. [Rayburn’s Trial Counsel?] 

{¶21} “[Rayburn’s Trial Counsel]: That is our understanding of the State’s 

recommendation as to sentencing Your Honor.” (Emphasis Added.) (Ellipses Sic.) 

{¶22} “Where the record indicates that a defendant freely and knowingly entered 

into a plea agreement and a jointly recommended sentence, and the trial court imposes 

that sentence which is authorized by law, the sentence is not subject to appellate 

review.” State v. Lee, Muskingum App. No. 08-CA-70, 2009-Ohio-3423, at ¶18 

(citations omitted). See, also, State v. Knisely, Hancock App. No. 5-07-37, 2008-Ohio2255, at ¶11-12 (declining to review a sentence that was recommended as part of a 

plea agreement); State v. Reese, Jefferson App. No. 07 JE 7, 2008-Ohio-1548, at ¶67 

(same). Here, Rayburn entered into the plea agreement knowing that the state would 

recommend eight years in prison. Rayburn agreed with that recommendation, and the 

trial court imposed the requested sentence. Therefore, because of R.C. 2953.08(D)(1), 

this court may not review Rayburn’s sentence or consider his first assignment of error. 

See, e.g., State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, at ¶25 (“The General 

Assembly intended a jointly agreed-upon sentence to be protected from review 

precisely because the parties agreed that the sentence is appropriate.”); State v. 

Tomlinson, Pickaway App. No. 07CA3, 2007-Ohio-4618, at ¶6; State v. Ahmad, Adams 

App. No. 06CA828, 2007-Ohio-4567, at ¶22-24; Knisely at ¶12; Baird at ¶ 11-17. 

{¶23} Accordingly, we overrule Rayburn’s first assignment of error. 
Jackson App. No. 09CA6 6 

III. 

{¶24} In his second assignment of error, Rayburn contends that postrelease 

control violates the Double Jeopardy clause of the United States Constitution. 

Essentially, Rayburn argues that receiving a prison term for a postrelease control 

violation is unconstitutional. And for that reason, Rayburn contends that he should not 

be subjected to postrelease control. 

{¶25} Constitutional analysis is a question of law that we review de novo. State 

v. Roberts, Montgomery App. No. 23684, 2010-Ohio-3250, at ¶8 (citations omitted); 

see, also, State v. Baranski, 173 Ohio App.3d 410, 2007-Ohio-4072, at ¶6; State v. 

Ziepfel (1995), 107 Ohio App.3d 646, 652. “The Double Jeopardy Clause provides that 

no ‘person [shall] be subject for the same offence to be twice put in jeopardy of life or 

limb.’ [The United States Supreme Court has] long recognized that the Double 

Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, 

in common parlance, be described as punishment. * * * The Clause protects only 

against the imposition of multiple criminal punishments for the same offense[.]” Hudson 

v. United States (1997), 522 U.S. 93, 98-99 (internal citations omitted) (emphasis sic). 

“[D]ouble jeopardy principles do not prohibit the imposition of every additional sanction 

that could be labeled ‘punishment’ in common parlance.” State v. Martello, 97 Ohio 

St.3d 398, 2002-Ohio-6661, at ¶8, citing Hudson at 98-99. 

{¶26} Here, we find no merit in Rayburn’s Double-Jeopardy arguments. “[T]he 

General Assembly has indicated its clear intent that the prison term imposed for the 

violation of postrelease control is a reinstatement of part of the original sentence for 

violating the conditions of supervision, and is not meant to be a separate criminal 
Jackson App. No. 09CA6 7 

punishment.” Martello at ¶19. Thus, in Martello, “the Supreme Court of Ohio concluded 

that ‘jeopardy does not attach when a defendant receives a term of incarceration for the 

violation of conditions of postrelease control.’ [Id. at ¶26]. Such a term of incarceration 

is attributable to the original sentence and is not a ‘criminal punishment’ for Double 

Jeopardy Clause purposes.” Brown v. Ohio Adult Parole Auth., Franklin App. No. 

09AP-797, 2010-Ohio-872, at ¶7, citing Martello at ¶26. See, also, State v. Ervin, Lake 

App. Nos. 2009-L-025 & 2009-L-026, 2009-Ohio-6382, at ¶31; State v. Grider, 

Cuyahoga App. No. 90603, 2008-Ohio-5132, at ¶4. Therefore, receiving a prison term 

for a postrelease control violation is constitutional, and Rayburn’s argument has no 

merit. 

{¶27} Accordingly, we overrule Rayburn’s second assignment of error. Having 

overruled both of his assignments of error, we affirm the judgment of the trial court. 

JUDGMENT AFFIRMED. 
Jackson App. No. 09CA6 8 

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the 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 

Jackson County 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. Exceptions. 

 McFarland, P.J. and Harsha, J.: Concur in Judgment and Opinion. 

For the Court 

 

 

 BY:_____________________________ 

 Roger L. Kline, Judge 

NOTICE TO COUNSEL 

Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.