[Cite as State v. Stewart, 2017-Ohio-2842.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. Patricia A. Delaney, P.J.
        Plaintiff - Appellee                  :      Hon. William B. Hoffman, J.
                                              :      Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
CHRISTOPHER T. STEWART                        :      Case No. 17 CAA 01 0004
                                              :
        Defendant - Appellant                 :      OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Delaware County
                                                     Court of Common Pleas, Case No.
                                                     15CR-I-03-0130




JUDGMENT:                                            Reversed




DATE OF JUDGMENT:                                    May 16, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CAROL HAMILTON O'BRIEN                               CHRISTOPHER T. STEWART, pro se
Delaware County Prosecutor                           #A721496
                                                     15708 McConnelsville Road
By: MARK C. SLEEPER                                  Caldwell, Ohio 43724
Assistant Prosecuting Attorney
140 North Sandusky Street
Delaware, Ohio 43015
Delaware County, Case No. 17 CAA 01 0004                                            2




Baldwin, J.

       {¶1}   Defendant-appellant Christopher Stewart appeals from the January 9, 2017

Judgment Entry of the Delaware County Court of Common Pleas denying his Motion to

Vacate Judicial Sanction Sentence. Plaintiff-appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   On March 27, 2015, the Delaware County Grand Jury indicted appellant on

one count of felonious assault in violation of R.C. 2903.11(A), a felony of the second

degree, one count of domestic violence in violation of R.C. 2919.25(A), a felony of the

third degree, and one count of assault in violation of R.C. 2903.11(A)(1), a misdemeanor

of the first degree. At his arraignment on March 31, 2015, appellant entered a plea of not

guilty to the charges.

       {¶3}   Subsequently, on November 12, 2015, appellant withdrew his not guilty plea

and entered a plea of no contest to a lesser included offense of attempted felonious

assault in violation of R.C. 2923.02(A), a felony of the third degree, and the trial court

found appellant guilty. The remaining counts were dismissed. As memorialized in a

Judgment Entry filed on December 17, 2015, appellant was sentenced to thirty (30)

months in prison. The trial court, in its Judgment Entry, also ordered that appellant serve

“500 days of remaining Post-release Control pursuant to R.C. 2929.141, which shall be

served consecutively to the sentence imposed in this Case.”       Appellant did not file a

direct appeal.

       {¶4}   Appellant, on December 22, 2016, filed a Motion to Vacate Judicial Sanction

Sentence. Appellant, in his motion, argued that post-release control was improperly
Delaware County, Case No. 17 CAA 01 0004                                              3


imposed in Franklin County Common Pleas Court Case No. 07CR-12-8718, “rendering

his placement on post-release control in that case a nullity and his subsequent judicial

sanction” in the case sub judice void. Appellant attached a certified copy of a January

31, 2012 Judgment Entry from the Franklin County case to his motion. Appellee filed a

reply to appellant’s motion on January 5, 2017. In addition to the above Franklin County

Judgment Entry, appellee attached a Notice filed in the Franklin County case on January

31, 2012 to its reply. The Notice, which was signed by appellant and his counsel but not

the trial court, advised appellant that, after his release from prison, he would be placed

on post-release control for a period of three years. The Notice also listed what could occur

if appellant violated post-release control sanctions. By signing the Notice, appellant

certified that the “Court read to me, and gave me in writing, the notice set forth herein.”

       {¶5}   The trial court, pursuant to a Judgment Entry filed on January 9, 2017,

denied appellant’s motion.

       {¶6}   Appellant now appeals from the trial court’s January 9, 2017 Judgment

Entry, raising the following assignment of error on appeal:

       {¶7}   THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

DENYING APPELLANT’S MOTION TO VACATE JUDICIAL SANCTION.

                                                  I

       {¶8}   Appellant, in his sole assignment of error, argues that the trial court erred in

denying his Motion to Vacate Judicial Sanction Sentence.

       {¶9}   Appellant, in his brief, argues that in his Franklin County case, post-release

control was not mandatory and that the trial court’s entry in such case did not accurately

reflect the consequence for violating terms of conditions of post-release control under
Delaware County, Case No. 17 CAA 01 0004                                                 4


R.C. 2967.28(B)(2) and 2929.19. Appellant also contends that the Sentencing Entry in

such case did not state that appellant would be subject to reimprisonment of up to half of

his original prison terms for violating terms or conditions of his post-release control.

Appellant argues that, for the above reasons, the trial court in this matter should have

vacated that portion of appellant’s sentence which added 500 days to his post-release

control time from Franklin County.

       {¶10} R.C. 2929.19(B) provides, at the sentencing hearing, the trial court must

notify the offender if a period of supervision is imposed following his or her release from

prison, and if the offender violates that supervision, then the parole board may impose a

prison term of up to one-half of the prison term originally imposed on the offender. The

trial court must notify the offender of the mandatory nature of the term of post-release

control and the length of that mandatory term. State v. Bloomer, 122 Ohio St.3d 200,

2009–Ohio–2462, 909 N.E.2d 1254, ¶ 69. The trial court must also include this notice in

the sentencing entry. State v. Singleton, 124 Ohio St.3d 173, 2009–Ohio-6434, 920

N.E.2d 958, ¶ 11, 22.

       {¶11} In State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332,

the Ohio Supreme Court held, in pertinent part, “A sentence that does not include the

statutorily mandated term of post-release control is void, is not precluded from appellate

review by principles of res judicata, and may be reviewed at any time, on direct appeal or

by collateral attack.” Id., at paragraph one of the syllabus. In light of this voidness doctrine,

where a prior sentence does not include a statutorily mandated term of post-release

control in the sentencing entry, the trial court cannot order the remaining PRC time
Delaware County, Case No. 17 CAA 01 0004                                              5

imposed upon a new violation and sentence. See State v. Murphy, 5th Dist. Muskingum

No. CT2013–0028, 2014–Ohio–323, ¶ 7.

       {¶12} The Franklin County Court, in its January 31, 2012 Judgment Entry in Case

No. 07CR-12-8718, stated, in relevant part, as follows: “The Court also notified Defendant

of the applicable period of 3 years mandatory post-release control pursuant to R.C.

2929.19(B)(3)(c), (d) and (e).” The Judgment Entry is silent as to the consequences of

violating post-release control. The trial court failed to inform appellant that if he violated

his supervision or a condition of post-release control, the parole board could impose a

maximum prison term of up to one-half of the prison term originally imposed. State v.

Ketterer, 126 Ohio St.3d 448, 2010–Ohio–3831, 935 N.E.2d 9 ,¶ 77–79; State v. Richard–

Bey, 5th Dist. Muskingum Nos. CT2014–0012, CT2014–0013, 2014–Ohio–2923. While

the Notice did specify the consequences for violating post-release control, it was not a

Judgment Entry signed by the trial court.

       {¶13} We find, therefore, that the trial court erred in denying appellant's Motion to

Vacate Judicial Sanction Sentence based upon the aforementioned case law.

       {¶14} Appellant's sole assignment of error is sustained.

       {¶15} Accordingly, the judgment of the Delaware County Court of Common Pleas

is reversed.

By: Baldwin, J.

Delaney, P.J. and

Hoffman, J. concur.
