[Cite as State v. Tanksley, 2016-Ohio-2963.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 2015-CA-80
                                                     :
 v.                                                  :   Trial Court Case No. 2001-CR-0128
                                                     :
 JAMES M. TANKSLEY                                   :   (Criminal Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                              Rendered on the 13th day of May, 2016.

                                                ...........

MEGAN FARLEY, Atty. Reg. No. 0088515, Assistant Clark County Prosecuting Attorney,
50 East Columbia Street, 4th Floor, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

FRANCISCO E. LUTTECKE, Atty. Reg. No. 0082866, 250 East Broad Street, Suite 1400,
Columbus, Ohio 43215
     Attorney for Defendant-Appellant

                                               .............




WELBAUM, J.
                                                                                        -2-




       {¶ 1} Defendant-appellant, James M. Tanksley, appeals from the judgment of the

Clark County Court of Common Pleas denying his motion to vacate the prison sentence

he received for violating post-release control.    For the reasons outlined below, the

judgment of the trial court will be reversed and Tanksley’s sentence for violating post-

release control will be vacated.

       {¶ 2} On December 27, 2000, Tanksley was indicted in Clark County Case No.

2001-CR-0128 for one count of aggravated robbery in violation of R.C. 2911.01(A), a

felony of the first degree, with a firearm specification. Thereafter, Tanksley entered into

a plea agreement with the State and pled guilty to the charge in exchange for the State

dismissing the firearm specification and recommending a three-year prison term.

Following his plea, the trial court sentenced Tanksley to three years in prison. Tanksley

did not provide a copy of the sentencing hearing transcript; however, the sentencing entry

states, in pertinent part, the following:

              The Court has informed defendant that post release control is

       mandatory in this case up to a maximum of five years, as well as the

       consequences for violating conditions of post release control imposed by

       the Parole Board. Defendant is ordered to serve, as part of this sentence,

       any such term of post release control imposed and any prison term for

       violation of that post release control.

Judgment Entry of Sentence (July 21, 2001), Clark County Case No. 2001-CR-0128,

Docket No. 15, p. 2.

       {¶ 3} On December 26, 2003, Tanksley was released from prison and placed on
                                                                                            -3-


post-release control.    Eight months later, in Clark County Case No. 2004-CR-0219,

Tanksley was convicted of murder in violation of R.C. 2903.02 and sentenced to serve 15

years to life in prison. As a result of that conviction, the trial court filed an entry in Case

No. 2001-CR-0128 sentencing Tanksley to five years in prison for violating his post-

release control obligations. The five-year prison sentence was ordered to run prior to

Tanksley’s sentence in Case No. 2004-CR-0219.

       {¶ 4} Approximately 11 years later, on July 23, 2015, Tanksley filed a motion to

vacate the five-year sentence for violating post-release control, which he completed in

2009. The trial court overruled the motion to vacate and Tanksley timely appealed from

that decision, raising the following single assignment of error for review.

       THE TRIAL COURT ERRED BY DENYING MR. [TANKSLEY’S] MOTION

       TO VACATE HIS VOID JUDICIAL-SANCTION SENTENCE.

       {¶ 5} Under his sole assignment of error, Tanksley contends he was not properly

sentenced to post-release control in Case No. 2001-CR-0128 due to the language in the

sentencing entry indicating that post-release control was mandatory “up to a maximum of

five years.” Tanksley claims the use of this language renders the post-release control

portion of his sentence void and thereby prevents the trial court from imposing a sanction

for violating the void post-release control obligations.       Due to this error, Tanksley

maintains that he was not required to serve any time for violating post-release control and

that all the prison time he has served since his 2004 murder conviction should be credited

toward the sentence he received as a result of that conviction.

       {¶ 6} “Post-release control” is “a sanction that is authorized under sections

2929.16 to 2929.18 of the Revised Code and that is imposed upon a prisoner upon the
                                                                                              -4-


prisoner’s release from a prison term.” R.C. 2967.01(N). “A trial court is required to

notify the offender at the sentencing hearing about post-release control, and is further

required to incorporate the specifics of that notice into its judgment of conviction setting

forth the sentence the court imposed.” (Citations omitted.) State v. Terry, 2d Dist.

Darke No. 09CA0005, 2010-Ohio-5391, ¶ 14.

       {¶ 7} “[A]mong the most basic requirements of post[-]release control notification

per R.C. 2967.28 and the Ohio Supreme Court’s existing precedent is that the court must

both notify the offender of the length of the term of post-release control that applies to his

conviction(s) and incorporate that notification into its journalized judgment of conviction

pursuant to Crim.R. 32(C). Both are necessary in order to authorize the parole board to

exercise the authority that R.C. 2967.28 confers on that agency.” Id. at ¶ 15, citing State

v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 69.

       {¶ 8} “[W]hen a judge fails to impose statutorily mandated post[-]release control as

part of a defendant’s sentence, that part of the sentence is void and must be set aside.”

(Emphasis sic and footnote omitted.) State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238, 942 N.E.2d 332, ¶ 26; State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1

N.E.3d 382, ¶ 7. A void judgment is treated as though the proceedings had never

occurred; the judgment is a mere nullity and the parties are in the same position as if

there had been no judgment. State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980

N.E.2d 960, ¶ 10. “In such situations, the void sanction ‘may be reviewed at any time,

on direct appeal or by collateral attack,’ * * * but ‘res judicata still applies to other aspects

of the merits of a conviction, including the determination of guilt and the lawful elements

of the ensuing sentence[.]’ ” Holdcroft at ¶ 7, quoting Fischer at ¶ 40.
                                                                                              -5-


       {¶ 9} “Language that ‘appears to allow the parole board discretion to impose less

than the [mandatory term] of post-release control’ does not conform to the statutory

mandates, rendering that portion of the sentence void.” State v. Blackshear, 2d Dist.

Montgomery No. 24302, 2011-Ohio-2059, ¶ 12, quoting State v. Gonzalez, 9th Dist.

Lorain No. 09CA009528, 2009-Ohio-5759, ¶ 8-9.                (Other citations omitted.)      For

example, we have consistently held that the post-release control portion of a sentence is

void when the trial court advises a defendant who is subject to mandatory post-release

control that post-release control is mandatory “up to” a certain period of time. See, e.g.,

State v. Conway, 2d Dist. Clark No. 2010-CA-50, 2011-Ohio-24, ¶ 25, fn. 1. (finding that

“there is a discrete part of the sentencing entry that is ‘void’-the part that provides for post-

release control for ‘up to’ three years”); State v. Adkins, 2d Dist. Greene No. 2010-CA-69,

2011-Ohio-2819, ¶ 6 (finding post-release control portion of sentence void where trial

court advised defendant that post-release control was mandatory for “up to a maximum

of five years”); State v. Fleming, 2013-Ohio-503, 990 N.E.2d 145, ¶ 24 (2d Dist.) (finding

post-release control sentence void where trial court advised defendant that he “could be”

subject to post-release control “for up to five years”); State v. Dean, 2d Dist. Champaign

No. 2013-CA-17, 2014-Ohio-50, ¶ 14-16 (finding post-release control sentence void when

trial court advised defendant that he is “subject to post-release control for a period of up

to three years”).

       {¶ 10} Generally, “ ‘where a sentence is void because it does not contain a

statutorily mandated term, the proper remedy is * * * to resentence the defendant.’ ”

Fischer at ¶ 10, quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d

864, ¶ 23. (Other citation omitted.) However, if proper notification is given during the
                                                                                         -6-


sentencing hearing and the sentencing entry either omits or states the wrong term of post-

release control, a trial court is instead authorized to correct the error or omission with a

nunc pro tunc entry. State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-

229, 943 N.E.2d 1010, ¶ 14-15; State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111,

967 N.E.2d 718, ¶ 30.      Nevertheless, the trial court’s ability to correct its judgment

through a nunc pro tunc entry or by resentencing ceases when the defendant completes

his prison sentence. State v. Huber, 2d Dist. Clark No. 2013 CA 16, 2014-Ohio-2095,

¶ 9, citing Holdcroft at paragraph three of the syllabus and Qualls at ¶ 24. Under that

circumstance, post-release control cannot be imposed.          State v. Cooper, 8th Dist.

Cuyahoga No. 103066, 2015-Ohio-4505, ¶ 10, citing Qualls at ¶ 24. (Other citations

omitted.) “This is true even if the defendant remains incarcerated on other charges.”

Huber at ¶ 9, citing Holdcroft at ¶ 18.

       {¶ 11} In Huber, this court followed the foregoing principles and held that the trial

court could not file an amended/nunc pro tunc entry to correct improper language in a

sentencing entry that imposed mandatory post-release control “up to a maximum of three

years” because the defendant had already completed the prison term for which post-

release control applied. Id. at ¶ 6-12. See also State v. Bradford, 8th Dist. Cuyahoga

No. 102011, 2015-Ohio-1385 (vacating void post-release control sentence after finding

nunc pro tunc entry was not permitted to correct improper “up to” language because the

defendant had already completed his prison sentence).

       {¶ 12} Similar to Huber, the trial court in this case incorrectly provided in the

sentencing entry that post-release control is mandatory for “up to a maximum of five

years[.]” We presume the regularity of the sentencing hearing, i.e., that the trial court
                                                                                           -7-


correctly advised Tanksley about post-release control, since Tanksley failed to provide a

transcript of the sentencing hearing as required by App.R. 9. 1         Knapp v. Edwards

Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).                Based on that

presumption, a nunc pro tunc entry would have been sufficient to correct the error in the

sentencing entry had the correction been made before Tanksley completed his three-year

prison term for aggravated robbery.       However, like in Huber, Tanksley had already

served his prison term for the underlying aggravated robbery charge; therefore, the trial

court no longer has authority to correct the sentencing entry to properly impose post-

release control.

       {¶ 13} The State cites State v. Clark, 2d Dist. Clark No. 2012 CA 16, 2013-Ohio-

299, in support of its claim that Tanksley’s post-release control sentence is not void and

should not be vacated. In Clark, the defendant argued that the post-release control

portion of his sentence was void because the trial court’s sentencing entry did not list the

specific consequences of violating post-release control. Id. at ¶ 8. However, we held

that “a judgment entry need not be corrected to include the specific consequences for

violating post-release control conditions, if the trial court imposes a lawful sentence of

post-release control, properly notifies the defendant regarding post-release control and

the specific consequences of the a violation during the sentencing hearing, and the

sentencing entry contains notification regarding the fact that post-release control is being

imposed and that a prison term could be ordered for any violation.” Id. at ¶ 11.


1
  We note that the written guilty plea signed by Tanksley correctly states that if he is
“sentenced to prison for a felony 1 * * *, after [his] prison release [he] will have 5 years
of post-release control under conditions determined by the Parole Board.” (Emphasis
added.) Plea of Guilty (July 12, 2001), Clark County Case No. 2001-CR-0128, Docket
No. 14, p. 2.
                                                                                           -8-

       {¶ 14} Because the defendant in Clark was properly notified at the sentencing

hearing about his term of post-release control and the consequences of violating it, and

the sentencing entry also correctly notified the defendant about his term of post-release

control and the possibility of receiving a prison term if post-release control was violated,

we concluded that the trial court’s failure to list the specific consequences for violating

post-release control in the sentencing entry did not render the defendant’s post-release

control sentence void. Id. at ¶ 5-7, 72-73. In so holding, we relied on the Supreme

Court of Ohio’s decision in Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857

N.E.2d 78, for the proposition that the sentencing entry “ ‘was sufficient to afford notice to

a reasonable person that the [court was] authorizing post[-]release control.’ ” Clark at

¶ 73, quoting Watkins at ¶ 51.

       {¶ 15} Watkins involved a habeas corpus action filed by 12 inmates who were

incarcerated for violating post-release control. Watkins at ¶ 1. The inmates sought

immediate release from prison on grounds that the trial court never properly imposed

post-release control because their sentencing entries incorrectly contained discretionary

language when post-release control was mandatory. Id. at ¶ 2-27. The Supreme Court

acknowledged that the sentencing entries erroneously referred to discretionary, instead

of mandatory post-release control, but determined that the entries contained information

that was “sufficient to afford notice to a reasonable person that the courts were authorizing

post[-]release control as part of each petitioner’s sentence” and that “any challenge to the

propriety of the sentencing court’s imposition of post[-]release control in the entries could

have been raised on appeal.” Id. at ¶ 51. Thus, the court denied the defendants’

habeas petition. Id. at ¶ 53.
                                                                                        -9-

       {¶ 16} In State v. Robinson, 2d Dist. Champaign No. 2010-CA-30, 2011-Ohio-

1737, ¶ 19, we noted that Justice Lanzinger’s dissent in Watkins rejected the majority’s

view that “mere substantial compliance is sufficient” for providing notice of post-release

control, and found Justice Lanzinger’s view to be in line with subsequent Supreme Court

decisions regarding post-release control; specifically, Bloomer, 122 Ohio St.3d 200, 2009-

Ohio-2462, 909 N.E.2d 1254, and Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942

N.E.2d 332. Notably, Bloomer held that “in the absence of a proper sentencing entry

imposing post[-]release control, the parole board’s imposition of post[-]release control

cannot be enforced.” Bloomer at ¶ 71.

       {¶ 17} In addition, the Supreme Court’s decision in State v. Lynch, 134 Ohio St.3d

561, 2012-Ohio-5730, 983 N.E.2d 1314, impliedly rejects the application of Watkins in

circumstances similar to the case at bar. In Lynch, the trial court issued a resentencing

entry that imposed post-release control, but mistakenly included some discretionary

language, i.e., that post release control was “mandatory up to 5 years.” State v. Lynch,

9th Dist. Lorain No. 11CA010031, 2012-Ohio-2975, ¶ 7. After the defendant completed

his underlying prison sentence, he filed a motion to terminate post release control on

grounds that the “up to” language in the sentencing entry rendered the post-release

control portion of the sentence void. Id. at ¶ 3, 7-8. The defendant also claimed that

the trial court could not resentence him because he had completed his sentence. Id. at

¶ 7-8. The trial court, however, denied the motion to terminate post-release control and

the Ninth Appellate District affirmed that decision on appeal. Id. at ¶ 3, 15.

       {¶ 18} In affirming the trial court’s decision, the Ninth District relied heavily on

Watkins, and stated:
                                                                                         -10-

              Although Watkins is procedurally distinct from the present case, the

       citation in Qualls suggests that its result is applicable in cases that do not

       involve petitions for habeas corpus. See [Watkins at ¶ 51, 53], and Qualls

       at ¶ 16. See also State v. Garrett, 9th Dist. No. 24377, 2009-Ohio-2559,

       ¶ 15-16 (applying Watkins in the context of a substantial compliance

       analysis where the trial court denied appellant’s post-conviction motion to

       withdraw guilty plea). Here, just as in Watkins, Lynch’s sentencing entry

       imposed post[-]release control and mistakenly set forth some discretionary

       language.     Therefore, because Lynch’s entry “contained sufficient

       language to authorize the Adult Parole Authority to exercise post[-]release

       control” over him, the trial court did not err in denying Lynch’s motion to

       terminate post[-]release control on the basis that the sentencing entry

       mistakenly included discretionary language, where the oral notification at

       the sentencing hearing properly advised Lynch of the terms of post[-]release

       control. See Watkins at ¶ 53.

Lynch at ¶ 14.

       {¶ 19} The Supreme Court of Ohio summarily reversed the Ninth District’s decision

in Lynch on the authority of Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960,

a case which involved a sentencing entry that incorrectly imposed a mandatory term of

post-release control “up to a maximum of three (3) years” when the defendant was

actually required to be sentenced to a mandatory five-year period of post-release control.

Id. at ¶ 2. After the defendant in Billiter was released from prison, he eventually violated

the conditions of post-release control, and as a result, was indicted for escape. Id. at
                                                                                          -11-


¶ 3. The defendant pled guilty to escape and was placed on community control, which

he violated almost immediately. Id. at ¶ 3-4. Following the violation, the trial court

revoked community control and sentenced the defendant to six years in prison on the

escape charge. Id. at ¶ 4.

       {¶ 20} Four years later, the defendant in Billiter filed a motion to vacate his escape

conviction and sentence on grounds that the post-release control portion of his sentence

was void as a result of the “up to” language in the sentencing entry. Id. at ¶ 5. The trial

court denied the motion and the Fifth District Court of Appeals affirmed that decision

based on Watkins, reasoning that “the trial court’s incorrect sentence had nevertheless

given Billiter proper notice that he was subject to post[-]release control, and so the

sentence was not void.” Id., citing State v. Bill[i]ter, 5th Dist. Stark No. 2008-CA-00198,

2009-Ohio-2709, ¶ 13-14. The defendant did not appeal that decision. Id.

       {¶ 21} However, 12 years later, the defendant in Billiter moved to withdraw his

guilty plea to escape on the theory that he had never been legally placed on post-release

control. Id. at ¶ 6. The trial court denied the motion on res judicata grounds and the

Fifth District affirmed the decision and certified a conflict with cases from this district on

the issue of whether res judicata bars a defendant from arguing his plea is void due to a

post-release control sentencing violation. Id. Although focusing on the issue of res

judicata, in reversing the decision of the Fifth District, the Supreme Court of Ohio noted

the following:

                 Here, the trial court failed to sentence Billiter to a correct term of

       post[-]release control.      Accordingly, his sentence was void.       Fischer,

       paragraph one of the syllabus.        The trial court’s incorrect sentence for
                                                                                         -12-


       post[-]release control in 1998 was insufficient to confer authority upon the

       Adult Parole Authority to impose up to three years of post[-]release control

       on Billiter. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864,

       ¶ 17. Although the Adult Parole Authority actually did place Billiter under

       supervision, see R.C. 2921.01(E), and Billiter did violate the terms of that

       post[-]release control in violation of R.C. 2921.34(A)(1), Billiter’s escape

       conviction was based on an invalid sentence. Accordingly, the trial court

       was without jurisdiction to convict him on the escape charge.

Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960 at ¶ 12.

       {¶ 22} Although not explicit, the Supreme Court of Ohio’s decisions in Billiter and

Lynch, 134 Ohio St.3d 561, 2012-Ohio-5730, 983 N.E.2d 1314 impliedly reject the

application of Watkins’ sufficient-notice principle in cases where a sentencing entry

improperly uses discretionary language when imposing post-release control, as they

indicate that such a mistake renders the sentence void.

       {¶ 23} Nevertheless, we find the State’s reliance on our application of Watkins in

Clark is misplaced because Clark concerns an entirely different factual scenario from the

present case.    Unlike in Clark, the sentencing entry in this case contains incorrect

information that would lead a reasonable person to believe that the defendant could

receive less than the statutorily-mandated term of post-release control.       In addition,

based on our presumption of regularity at the sentencing hearing, there is a discrepancy

between what was stated at the sentencing hearing and what was provided in the

sentencing entry. This did not occur in Clark. Rather, Clark concerns a scenario where

the trial court did not provide any incorrect information at sentencing or in the sentencing
                                                                                           -13-


entry, but simply failed to list the specific consequences of violating post-release control

in the sentencing entry. Therefore, the holding in Clark is inapplicable here.

       {¶ 24} In light of the foregoing, we conclude that the trial court’s imposition of post-

release control for Tanksley’s aggravated robbery conviction is void as a result of the

improper “up to” language that is contained in the sentencing entry. As a result, since

Tanksley has already completed his prison sentence for aggravated robbery, the trial

court no longer has authority to correct the improper language. Therefore, the imposition

of post-release control remains void, as if it had never been imposed, which means the

trial court did not have authority to sanction Tanksley for violating post-release control.

Accordingly, because Tanksley’s sentence for violating post-release control in his

aggravated robbery case arose out of his murder conviction, the time Tanksley served in

prison as a result of violating the void post-release control shall be credited toward the

sentence he received for his 2004 murder conviction. See also State v. Smith, 6th Dist.

Lucas No. L-14-1189, 2015-Ohio-3612, ¶ 12 (finding the sentence imposed as a result of

the violation of the terms of the void post-release control sanction cannot be counted in

calculating appellant’s release date).



                                         Conclusion

       {¶ 25} Tanksley’s sole assignment of error is sustained. The judgment of the trial

court denying Tanksley’s motion to vacate is reversed and the five-year prison sentence

Tanksley received for violating post-release control is vacated.

                                      .............
                                       -14-


DONOVAN, P.J. and HALL, J., concur.




Copies mailed to:

Megan Farley
Francisco E. Luttecke
Hon. Douglas M. Rastatter
ODRC, Bureau of Sentence Computation
