[Cite as State v. Baker, 2012-Ohio-5645.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.       26411

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
TIMOTHY BAKER                                       COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 1998 03 0575

                                 DECISION AND JOURNAL ENTRY

Dated: December 5, 2012



        DICKINSON, Judge.

                                            INTRODUCTION

        {¶1}     Timothy Baker pleaded guilty to four counts of burglary.        The trial court

sentenced him to 12 years in prison and imposed five years of post-release control. Mr. Baker

served his prison term and was released, but later violated the terms and conditions of post-

release control. After he was sent back to prison for the violation, he moved to vacate the

sanction, arguing that the part of his sentence that imposed post-release control was void. Mr.

Baker argued that, because burglary is a felony of the second degree, the court should have

imposed only three years of post-release control. The trial court denied his motion because it

concluded that, even though it had imposed the incorrect amount of post-release control, the

sentencing entry was sufficient to place him on notice that he would be subject to post-release

control after he completed his sentence. Mr. Baker has appealed, assigning as error that the court

incorrectly denied his motion to vacate. We reverse because the post-release control part of Mr.
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Baker’s sentence was void, and, therefore, the trial court did not have authority to sanction him

for a violation of post-release control.

                                   POST-RELEASE CONTROL

       {¶2}    Mr. Baker’s assignment of error is that the trial court incorrectly refused to

terminate his supervision under post-release control and release him from prison. In State v.

Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, the Ohio Supreme Court held that “[a] sentence

that does not include the statutorily mandated term of postrelease 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 State v. Billiter, __ Ohio

St. 3d __, 2012-Ohio-5144, the Ohio Supreme Court affirmed that “Fischer applies to every

criminal conviction, including a collateral attack on a void sentence . . . .” Id. at ¶ 11.

       {¶3}    In this case, the trial court, in its sentencing entry, attempted to impose five years

of post-release control on Mr. Baker. Five years was not the “statutorily mandated term” of post-

release control, however, so the provision is void. State v. Billiter, __ Ohio St. 3d __, 2012-

Ohio-5144, ¶ 7 (quoting State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, paragraph one of

the syllabus); R.C. 2967.28(B)(2) (providing that the period of post-release control that a trial

court must impose for a felony of the second degree is three years). “The effect of determining

that a judgment is void is well established. It is as though such 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. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, ¶ 12 (quoting Romito v.

Maxwell, 10 Ohio St. 2d 266, 267 (1967)).

       {¶4}    The facts of this case are similar to Billiter. In that case, Mr. Billiter pleaded

guilty to aggravated burglary and domestic violence and was sentenced to three years in prison
                                                   3


followed by “up to a maximum of three (3) years” of post-release control. State v. Billiter, __

Ohio St. 3d __, 2012-Ohio-5144, ¶ 2. The correct term of post-release control was five years.

After Mr. Billiter completed his prison term, the parole authority placed him on post-release

control. While still under post-release control, he pleaded guilty to a charge of escape. The

court sentenced him to community control, but he immediately violated it, so the court sentenced

him to six years imprisonment. Mr. Billiter then moved to vacate the post-release part of his

conviction, arguing that the court had imposed the wrong term. He also moved to withdraw his

plea to the escape charge. The Ohio Supreme Court, applying Fischer, held that res judicata did

not bar Mr. Billiter from challenging the validity of the post-release control part of his original

sentence and that the trial court did not have jurisdiction to convict him of escape. Id. at ¶ 11-12.

It explained that, “[h]ere, the trial court failed to sentence Billiter to a correct term of postrelease

control. Accordingly, his sentence was void. The trial court’s incorrect sentence for postrelease

control in 1998 was insufficient to confer authority upon the Adult Parole Authority to impose

up to three years of postrelease control on Billiter. Although the Adult Parole Authority actually

did place Billiter under supervision . . . and Billiter did violate the terms of that postrelease

control . . . , Billiter’s escape conviction was based on an invalid sentence. Accordingly, the trial

court was without jurisdiction to convict him on the escape charge.” Id. at ¶ 12 (citations

omitted).

       {¶5}    Because the trial court imposed the wrong term of post-release control when it

sentenced Mr. Baker for burglary and it failed to correct the problem before he was released

from prison, we conclude that Mr. Baker was not subject to post-release control following his

release from prison. We, therefore, vacate the trial court’s sentencing entry to the extent that it
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attempted to impose post-release control. We also vacate any sanctions that have been imposed

on Mr. Baker for violating post-release control. Mr. Baker’s assignment of error is sustained.

                                         CONCLUSION

       {¶6}    Because the trial court’s attempted imposition of post-release control was void,

the court should have granted Mr. Baker’s “motion to vacate judicial sanction and terminate

postrelease control supervision.” The judgment of the Summit County Common Pleas Court is

reversed.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT
                                                 5




BELFANCE, J.
CONCURS.

WHITMORE, P. J.
DISSENTING.

       {¶7}     Because the trial court correctly refused to terminate Baker’s post-release control

term and vacate his judicial sanction for having violated it, I respectfully dissent. I would affirm

the judgment of the trial court.

       {¶8}     For a second-degree felony offense that is not a sex offense, the proper term of

post-release control is three years. R.C. 2967.28(B)(2). Baker’s sentencing entry provided that

he would be subject to five years of post-release control after his release from prison. There is

no dispute that the trial court failed to properly impose post-release control upon Baker in his

1998 sentencing entry because it sentenced him to five years of post-release control rather than

three years. Further, no one disputes that Baker completed his twelve year sentence. The only

issue is whether the trial court erred when it denied Baker’s motion to terminate his post-release

control term.

       {¶9}     There are two key aspects of a term of post-release control: the in-court

notification the defendant receives and the incorporation of the notification into his sentencing

entry. “[A] trial court must provide statutorily compliant notification to a defendant regarding

post[-]release control at the time of sentencing, including notifying the defendant of the details of

the post[-]release control and the consequences of violating post[-]release control.” State v.

Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶ 18. The defendant’s sentencing entry then must

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

control over [him].” Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, ¶ 53. When a
                                                  6


defendant completes the prison term he was ordered to serve, he can no longer be subject to a

resentencing to correct errors in the imposition of his post-release control. State v. Bezak, 114

Ohio St.3d 94, 2007-Ohio-3250, ¶ 18, modified in part, State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238. Accord Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126.

        {¶10} As between the in-court notification a defendant receives and the court’s

codification of that notice in the sentencing entry, the in-court notification is of greater

importance. Qualls at ¶ 19 (“[O]ur main focus in interpreting the sentencing statutes regarding

post[-]release control has always been on the notification itself and not on the sentencing

entry.”).

        [W]hen the notification of post[-]release control was properly given at the
        sentencing hearing, the essential purpose of notice has been fulfilled and there is
        no need for a new sentencing hearing to remedy the flaw. The original sentencing
        entry can be corrected to reflect what actually took place at the sentencing
        hearing, through a nunc pro tunc entry, as long as the correction is accomplished
        prior to the defendant’s completion of his prison term.

Id. at ¶ 24. Further, even if a sentencing entry cannot be corrected by a nunc pro tunc entry

because a defendant already has served his prison term, post-release control will not be

terminated if (1) a defendant received a proper in-court notification, and (2) his sentencing entry

contained sufficient language for the Adult Parole Authority to exercise its control over him.

State v. Lynch, 9th Dist. No. 11CA010031, 2012-Ohio-2975, ¶ 12-14.

        {¶11} Baker did not provide the trial court with a transcript of his plea hearing or his

sentencing hearing. Baker informed the court that he had attempted to procure the transcripts,

but that he had been informed they were unavailable due to the age of his case. The record

reflects that Baker did not file a praecipe for the transcripts until after the trial court issued its

decision and he filed his notice of appeal. He then received the transcripts of the 1998 hearings

and filed them with the clerk of courts for the trial court and for this Court more than two months
                                                  7


after the trial court’s decision. Baker now asks this Court to consider the transcripts as evidence

that he never received an in-court notification of his post-release control obligations at the time

he entered his plea or at the time of his sentencing.

       {¶12} This Court is “constrained by the record on appeal.” Walker v. Lou Restoration,

9th Dist. No. 26236, 2012-Ohio-4031, ¶ 8. “A reviewing court cannot add matter to the record

before it, which was not a part of the trial court’s proceedings, and then decide the appeal on the

basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the

syllabus. Accord Young v. Bishop, 9th Dist. No. 21025, 2002-Ohio-5944, ¶ 19 (“[T]his Court

will not review the transcript because the trial court did not have the opportunity to review it in

rendering its judgment.”); Atco Medical Products, Inc. v. Stringer, 9th Dist. No. 18571, 1998

WL 161340, *2 (Apr. 8, 1998) (“An appellate court cannot consider a transcript on appeal that

was not filed with the lower court before it made its judgment.”). Baker only filed a praecipe

with the trial court after its decision and never presented the trial court with the transcripts he

now seeks to introduce on appeal. Because the trial court did not have the transcripts of the 1998

hearings when it considered Baker’s motion, I would not consider them on appeal. Ishmail at

syllabus.

       {¶13} In the absence of an adequate record, a court must presume regularity in the

proceedings. State v. Ford, 9th Dist. No. 26260, 2012-Ohio-4028, ¶ 10. As such, we should

presume that Baker received a statutorily compliant in-court notification of post-release control

in 1998. See id. See also Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, at ¶ 18. The only

remaining question is whether his sentencing entry contained sufficient language for the Adult

Parole Authority to place him on post-release control. See Watkins, 111 Ohio St.3d 425, 2006-

Ohio-5082, at ¶ 53. As previously noted, Baker’s sentencing entry provided that he would be
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subject to five years of post-release control after his release from prison. Although the entry

contained an error in that it should have imposed three years of post-release control upon Baker,

it still “‘contained sufficient language to authorize the Adult Parole Authority to exercise post[-

]release control’ over him.” Lynch, 2012-Ohio-2975, at ¶ 14, quoting Watkins at ¶ 53. Further,

Baker could have raised the error on direct appeal. Lynch at ¶ 13.

       [B]ecause [Baker’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 [his] motion to terminate post[-]release control * * *, where
       [we must presume that] the oral notification at the sentencing hearing properly
       advised [him] of the terms of post[-]release control.

Id. at ¶ 14, quoting Watkins at ¶ 53. Thus, the trial court properly refused to terminate Baker’s

post-release control term.

       {¶14} The majority’s reliance upon State v. Billiter, Slip Opinion No. 2012-Ohio-5144,

is misplaced. The record in Billiter demonstrated that Billiter received both an improper post-

release control notification at his sentencing hearing and an improper term of post-release control

in his sentencing entry. Billiter at ¶ 34 (O’Donnell, J., dissenting). Billiter’s post-release control

term was void, and therefore subject to review at any time, because both his in-court notification

and sentencing entry were deficient. Billiter at ¶ 7, citing State v. Jordan, 104 Ohio St.3d 21,

2004-Ohio-6085 (where post-release control notification is absent from the sentencing hearing,

the sentence is void). Unlike Billiter, Baker failed to show that he received an improper post-

release control notification. In fact, because Baker failed to fulfill his duty to provide the trial

court with the necessary transcripts, we must presume that he actually did receive a proper

notification. Billiter, therefore, does not apply.

       {¶15} Absent an improper post-release control notification, termination of post-release

control is not a proper remedy. See Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶ 20-24;
                                                9


Lynch, 2012-Ohio-2975, ¶ 12-14. The only remedy Baker sought was a termination of his post-

release control term. As set forth above, the court properly denied his motion.


APPEARANCES:

E. KELLY MIHOCIK, Assistant State Public Defender, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
