         [Cite as State v. Bevins, 2013-Ohio-156.]




                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-120345
                                                         TRIAL NO. B-0009380
        Plaintiff-Appellee,                          :

  vs.                                                :      O P I N I O N.

ANDREW BEVINS,                                       :

    Defendant-Appellant.                             :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified and Cause Remanded

Date of Judgment Entry on Appeal: January 23, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Andrew Bevins, pro se.




Please note: we have removed this case from the accelerated calendar.
                  OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}   Defendant-appellant Andrew Bevins appeals from the Hamilton

County Common Pleas Court’s judgment dismissing his “Motion to Correct Void

Sentence” and “Motion to Correct Journal Entries.” We affirm the court’s judgment,

but we remand this case for the proper imposition of postrelease control.

       {¶2}   In 2003, Bevins was convicted upon a jury verdict finding him guilty of

escape. He unsuccessfully challenged his conviction in a direct appeal to this court,

State v. Bevins, 1st Dist. No. C-040052 (Feb. 23, 2005), and, collaterally, in a series

of postconviction motions. On appeal from the dismissal of his 2010 “Motion to

Correct Void Sentence” and his 2011 “Motion to Correct Journal Entries,” he

presents two assignments of error.

       {¶3}   Court properly disposed of “Motion to Correct Journal

Entries.” We address first, and overrule, Bevins’s second assignment of error, in

which he contends that the common pleas court erred in ruling upon his “Motion to

Correct Journal Entries.” The motion, he insists, had not been before the court. But

the record shows that the motion was filed with the court on December 14, 2011;

therefore, the court cannot be said to have erred in ruling upon it.

       {¶4}   “Motion to Correct Void Sentence” was reviewable and

subject to dismissal under R.C. 2953.21 et seq. Bevins’s first assignment

of error essentially restates the claim advanced in his “Motion to Correct Void

Sentence” and may thus fairly be read to challenge the dismissal of that motion. We

hold that the motion was properly dismissed.

       {¶5}   In his motion, Bevins sought correction of his sentence on the ground

that it is void to the extent that the trial court had failed to adequately notify him

concerning postrelease control. Bevins did not specify in his motion the statute or




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rule under which he sought relief. R.C. 2953.21 et seq., governing the proceedings

upon a postconviction petition, provide “the exclusive remedy by which a person may

bring a collateral challenge to the validity of a conviction or sentence in a criminal

case.” R.C. 2953.21(J). Therefore, the common pleas court should have reviewed

Bevins’s motion as a postconviction petition under the standards provided by R.C.

2953.21 et seq. See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d

431, ¶ 12.

       {¶6}   But Bevins filed his motion well after the expiration of the time

prescribed by R.C. 2953.21(A)(2). And the record does not demonstrate either that

he was unavoidably prevented from discovering the facts underlying his claim, or

that his claim was predicated upon a new or retrospectively applicable federal or

state right recognized by the United States Supreme Court since the time for filing a

postconviction petition had expired.     Because Bevins satisfied neither the time

strictures of R.C. 2953.21(A)(2) nor the jurisdictional requirements of R.C.

2953.23(A), the postconviction statutes did not confer upon the common pleas court

jurisdiction to entertain Bevins’s postconviction claim on its merits, and the motion

was subject to dismissal. We, therefore, overrule the first assignment of error.

       {¶7}   Court had jurisdiction to correct sentences to the extent

postrelease-control notification was inadequate.                 Nevertheless, a trial

court retains jurisdiction to correct a void judgment.      State ex rel. Cruzado v.

Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. And Bevins’s

sentence was void to the extent that he had not been adequately notified concerning

postrelease control.

       {¶8}   A felony prison sentence must include a term of postrelease control.

R.C. 2967.28 and 2929.14(F). And the sentencing court must notify the offender at



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the sentencing hearing concerning postrelease control and must incorporate

postrelease-control notification in the judgment of conviction. R.C. 2929.19(B)(3)(c)

through (B)(3)(e); State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d

864, paragraph one of the syllabus; see also Woods v. Telb, 89 Ohio St.3d 504, 513,

733 N.E.2d 1103 (2000) (holding that incorporation of postrelease-control

notification in the judgment of conviction empowers the adult parole authority to

impose postrelease control). Specifically, the court must notify the offender, with

respect to each offense, of the length and mandatory or discretionary nature of

postrelease control, of the consequences of violating postrelease control, and of the

length of confinement that could be imposed for a postrelease-control violation. See

R.C. 2929.19(B)(3)(c) through (B)(3)(e) and 2967.28(B) and (C); State v. Ketterer,

126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 77-79; State v. Bloomer, 122

Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 69.

       {¶9}   In sentencing Bevins for the second-degree felony of escape, the court

was required to notify Bevins that upon his release from prison, he would be subject

to a mandatory three-year period of postrelease control. See R.C. 2929.19(B)(3)(c)

and 2967.28(B)(2). And the court was required to notify Bevins of the consequences

of violating postrelease control and of the length of confinement that could be

imposed for a postrelease-control violation. See R.C. 2929.19(B)(3)(e).

       {¶10} At Bevins’s sentencing hearing, the trial court advised him as follows:

       Now, I am sure you are aware, having been up before that the parole

       board that once you served your time in this case will probably place

       you on Post-Release Control again; and if you violate conditions of that

       Post-Release Control as you know, you can be sent back to the

       penitentiary on this charge. It could be for half of the time I originally


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                  OHIO FIRST DISTRICT COURT OF APPEALS



       imposed. Also, you should be aware if you are out on Post-Release

       Control and you commit a new felony that you could receive an

       additional year in the penitentiary for committing that new felony

       while on Post-Release Control; and that is in addition to any time you

       get on [the] new felony * * *.

Thus, the postrelease-control notification provided at sentencing did not specify the

duration of his postrelease-control supervision, did not state the mandatory nature

of the supervision, and did not specify the length of confinement that could be

imposed for a postrelease-control violation.

       {¶11} The notification incorporated in the judgment of conviction was even

less edifying, stating simply that “[a]s part of the sentence in this case, the defendant

is subject to the post release [sic] control supervision of R.C. 2967.28.” It did not

specify the duration or the mandatory nature of the postrelease-control supervision,

the consequences of violating postrelease control, or the length of confinement that

could be imposed for a postrelease-control violation.

       {¶12} The state moved to dismiss Bevins’s “Motion to Correct Void Sentence”

on the ground that the postrelease-control notification provided at sentencing and in

the judgment of conviction was “sufficient[],” and that Bevins should have raised his

challenge to the adequacy of the notification in his direct appeal. In support of its

motion, the state cited the Ohio Supreme Court’s decisions in Watkins v. Collins, 111

Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, and State ex rel. Pruitt v.

Cuyahoga Cty. Court of Common Pleas, 125 Ohio St.3d 402, 2010-Ohio-1808, 928

N.E.2d 722.     The common pleas court, without elaboration, granted the state’s

motion.




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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} But Watkins and Pruitt do not, as the state would have them, establish

a rule of substantial compliance with the statutory mandates concerning postrelease

control based on the mere mention of postrelease control at sentencing or in the

judgment of conviction. Nor do those cases support a rule of waiver or forfeiture

when the offender fails to challenge his postrelease-control notification on direct

appeal. State v. Smith, 1st Dist. No. C-120163, 2012-Ohio-5965.

       {¶14} The postrelease-control statutes and the supreme court’s postrelease-

control decisions require that, with respect to each offense, a sentencing court notify

the offender, both at the sentencing hearing and in the judgment of conviction, of the

length and mandatory or discretionary nature of postrelease control, of the

consequences of violating postrelease control, and of the length of confinement that

could be imposed for a postrelease-control violation.    See Ketterer, 126 Ohio St.3d

448, 2010-Ohio-3831, 935 N.E.2d 9, at ¶ 77-79; Bloomer, 122 Ohio St.3d 200, 2009-

Ohio-2462, 909 N.E.2d 1254, at ¶ 69. To the extent that postrelease control is not

properly imposed, the sentence is “void,” and “the offending portion of the sentence

is subject to review and correction,” “at any time, on direct appeal or by collateral

attack.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,

paragraph one of the syllabus and ¶ 27. Accord Smith at ¶ 19; State v. Tensley, 1st

Dist. Nos. C-110452 and C-110453, 2012-Ohio-4265, ¶ 11-12; State v. Ward, 1st Dist.

No. C-110158, 2011-Ohio-6382, ¶ 4-6; State v. Copeland, 1st Dist. No. C-110120,

2011-Ohio-6034, ¶ 4-6; State v. Truitt, 1st Dist. No. C-050188, 2011-Ohio-1885, ¶ 19-

20; State v. Thomas, 1st Dist. Nos. C-100411 and C-100412, 2011-Ohio-1331, ¶ 7-9.

       {¶15} Thus, Bevins’s sentence is void to the extent it was not imposed in

conformity with the statutory mandates concerning postrelease control. His 2010

“Motion to Correct Void Sentence” brought the matter to the common pleas court’s




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                 OHIO FIRST DISTRICT COURT OF APPEALS



attention. Consequently, the common pleas court had jurisdiction to review and

correct the offending portion of Bevins’s sentence.

       {¶16} We affirm, but remand for resentencing. The common pleas

court properly ruled upon Bevins’s “Motion to Correct Journal Entries” because the

motion had been filed with the court. And his “Motion to Correct Void Sentence”

was subject to dismissal because the postconviction statutes did not confer on the

common pleas court jurisdiction to entertain the motion on its merits. Therefore, we

affirm the court’s judgment dismissing both motions.

       {¶17} But Bevins’s sentence is void to the extent that he was not adequately

notified concerning postrelease control.      We, therefore, remand this case for

correction of the offending portion of his sentence in accordance with the law and

this opinion.

                                                                Judgment accordingly.

SUNDERMANN, P.J., CUNNINGHAM and FISCHER, JJ.

J. HOWARD SUNDERMANN, retired, from the First Appellate District, sitting by
assignment.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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