[Cite as State v. Murphy, 2015-Ohio-3598.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :   JUDGES:
                                              :
                                              :   Hon. John W. Wise, P.J.
   Plaintiff-Appellee                         :   Hon. Patricia A. Delaney, J.
                                              :   Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :   Case No. CT2015-0023
                                              :
JOHN MURPHY                                   :
                                              :
                                              :
   Defendant-Appellant                        :   OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Muskingum County
                                                  Court of Common Pleas, Case No.
                                                  CR2013-0261



JUDGMENT:                                         REVERSED




DATE OF JUDGMENT ENTRY:                           September 1, 2015




APPEARANCES:

For Plaintiff-Appellee:                           For Defendant-Appellant:

D. MICHAEL HADDOX                                 STEPHEN P. HARWICK
MUSKINGUM COUNTY PROSECUTOR                       250 East Broad St., Suite 140
                                                  Columbus, OH 43215
GERALD V. ANDERSON II
27 North Fifth St., P.O. Box 189
Zanesville, OH 43702-0189
Muskingum County, Case No.CT2015-0023                                                2

Delaney, J.

       {¶1} Defendant-Appellant John Murphy appeals the April 14, 2015 judgment

entry of the Muskingum County Court of Common Pleas denying his motion to vacate

post-release control. Plaintiff-Appellee is the State of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} On February 22, 2010, Defendant-Appellant John Murphy pleaded guilty

to two counts of gross sexual imposition, fourth-degree felonies in violation of R.C.

2907.02(A)(1). State v. Murphy, Case No. CR2010-0019. The trial court sentenced

Murphy to 18 months in prison on each count, to be served consecutively for an

aggregate prison term of three years. The sentencing entry stated as to post-release

control:

       The Court further notified Defendant that “Post Release Control” is

       mandatory in this case for five (5) years as well as the consequences for

       violating conditions of post release control imposed by Parole Board under

       Revised Code §2967.28. The Defendant is ordered to serve as part of this

       sentence any term for violation of that post release control.

       {¶3} Murphy completed his prison sentence and was released on July 11,

2012. He was placed on five years of post-release control.

       {¶4} On November 27, 2013, Murphy entered a plea of guilty to one count of

failure to register (address change), a fourth-degree felony in violation of R.C.

2950.05(A). State v. Murphy, Case No. CR2013-0261. The trial court held a sentencing

hearing on January 13, 2014 and issued its sentencing entry on January 16, 2014. The

trial court sentenced Murphy to a prison term of eight months for the violation of R.C.
Muskingum County, Case No.CT2015-0023                                                     3


2950.05(A). The trial court further found that Murphy was on post-release control at the

time of the commission of the offense. Pursuant to R.C. 2929.141, the trial court

terminated Murphy’s period of post-release control and ordered Murphy to serve the

remainder of the post-release control. The sentence was to be served consecutively to

the eight months.

         {¶5} Murphy completed his eight-month prison term in September 2014.

         {¶6} On April 6, 2015, Murphy filed a motion to vacate post-release control.

Murphy argued the post-release control imposed in the February 22, 2010 sentencing

entry was void because the trial court failed to set forth the penalties for violating post-

release control. The trial court denied the motion on April 14, 2015.

         {¶7} It is from this judgment entry Murphy now appeals.

                                ASSIGNMENT OF ERROR

         {¶8} Murphy raises one Assignment of Error:

         {¶9} “THE TRIAL COURT ERRED BY DENYING MR. MURPHY’S MOTION

TO VACATE POSTRELEASE CONTROL. JOURNAL ENTRY (APRIL 14, 2015); R.C.

2929.19.”

                                        ANALYSIS

         {¶10} Murphy argues in his sole Assignment of Error that based on our decision

in State v. Richard-Bey, 5th Dist. Muskingum Nos. CT2014-0012, CT2014-0013, 2014-

Ohio-2923, the trial court erred in denying his motion to vacate post-release control. We

agree.

         {¶11} In State v. Richard-Bey, the trial court sentenced appellant to eight years

in prison on July 16, 2004. The trial court notified the appellant of mandatory post-
Muskingum County, Case No.CT2015-0023                                                      4

release control for up to five years. Id. at ¶ 1. The appellant was resentenced on August

30, 2010 to address the sole issue of post-release control pursuant to State v. Bloomer,

122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254. The trial court sentenced the

appellant to an aggregate term of eight years in prison and notified him of mandatory

post-release control for five years. The sentencing entry was silent, however, as to the

consequences of violating post-release control. Id. at ¶ 17. The trial court did not inform

the appellant “that if he violated his supervision or a condition of postrelease control, the

parole board could impose a maximum prison term of up to one-half of the prison term

originally imposed” pursuant to R.C. 2929.19(B)(3)(e) [now R.C. 2929.19(B)(2)(e)]. Id.

        {¶12} The appellant appealed the 2010 sentencing entry and we affirmed the

entry in State v. Richard-Bey, 5th Dist. Muskingum No. CT2010-Ohio-0051, 2011-Ohio-

3676.

        {¶13} On April 29, 2013, the appellant pleaded guilty to one count of having a

weapon while under disability in violation of R.C. 2923.13. Id. at ¶ 3. By sentencing

entry filed May 21, 2013, the trial court sentenced the appellant to 30 months. The trial

court also terminated the appellant’s post-release control in the 2004 case and ordered

the remaining time be imposed and served consecutively to the 30-month sentence. Id.

        {¶14} The appellant filed a petition for post-conviction relief in both the 2004 and

2013 cases, seeking relief from sentencing. Id. at ¶ 4. The appellant also filed a motion

for vacation of void post-release control violation in the 2013 case, claiming the balance

of his post-release control imposed in that case was an error because it was a nullity in

the 2004 case. The trial court denied the petition and motion and the appellant filed a

pro se appeal. Id.
Muskingum County, Case No.CT2015-0023                                                   5


      {¶15} On appeal, the appellant argued the trial court lacked jurisdiction to

impose the remainder of his void post release control sanction. We agreed. We stated:

      The 2004 sentencing entry in Case No.CR2004–119A was corrected on

      August 30, 2010 to address the sole issue of post-release control

      pursuant to State v. Bloomer, 122 Ohio St.3d 200, 2009–Ohio–2462. The

      entry was filed on September 7, 2010. The entry notified appellant that

      post-release control was mandatory for five years. However, the entry was

      silent as to the consequences of violating post-release control. Appellant

      was not “informed that if he violated his supervision or a condition of

      postrelease control, the parole board could impose a maximum prison

      term of up to one-half of the prison term originally imposed” pursuant to

      R.C. 2929.19(B)(3)(e) [now R.C. 2929.19(B)(2)(e) ]. State v. Ketterer, 126

      Ohio St.3d 448, 2010–Ohio–3831, ¶ 77 (reviewing a nunc pro tunc entry)

      (decided five days before appellant's resentencing). “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.” State v.

      Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, paragraph one of the

      syllabus. See also, State v. Billiter, 134 Ohio St.3d 103, 2012–Ohio–5144.

State v. Richard-Bey, 2014-Ohio-2923, ¶ 17.

      {¶16} The appellant had finished serving his sentence in the 2004 case.

“Because the trial court did not properly impose post-release control in its September 7,

2010 entry, the trial court cannot terminate appellant's post-release control in Case No.
Muskingum County, Case No.CT2015-0023                                                     6


CR2004–119A and order the remaining time be imposed and served consecutively to

the thirty month sentence in Case No. CR2013–0037.” State v. Richard-Bey, 2014-

Ohio-2923, ¶ 18. We found the trial court erred in denying the appellant’s motion for

vacation of void post-release control violation. Id. at ¶ 19.

       {¶17} We find Richard-Bey to be directly on point to the facts of the present

case. In the present case, the trial court did not inform Murphy in the February 22, 2010

sentencing entry 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 pursuant to R.C. 2929.19(B)(2)(e). The February 22, 2010

sentence in Case No. CR2010-0019 does not include a statutorily mandated term of

post-release control and is void. The trial court cannot terminate Murphy’s post-release

control in CR2010-0019 and order the remaining time be imposed and served

consecutively to the eight month sentence in Case No. CR2013-0261.

       {¶18} Based on this Court’s decision in Richard-Bey, we find the trial court erred

in denying Murphy’s motion to vacate post-release control. Murphy’s sole Assignment of

Error is sustained.
Muskingum County, Case No.CT2015-0023                                                7


                                    CONCLUSION

       {¶19} The only portion of the January 16, 2014 sentencing entry dealing with the

imposition of the remaining time of post-release control from Case No. CR2010-0019 is

reversed. The rest of the sentence in Case No. CR2013-0261 is left intact.

       {¶20} The judgment of the Muskingum County Court of Common Pleas is

reversed.

By: Delaney, J.,

Wise, P.J. and

Baldwin, J., concur.
