         [Cite as State v. Wilson, 2013-Ohio-1813.]




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



STATE OF OHIO,                                        :   APPEAL NO. C-120511
                                                          TRIAL NO. B-0208347
        Plaintiff-Appellee,                           :

  vs.                                                 :      O P I N I O N.

GEORGE WILSON,                                        :

    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: May 3, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

George Wilson, pro se.




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



Per Curiam.

         {¶1}   Defendant-appellant George Wilson presents on appeal a single

assignment of error, challenging the Hamilton County Common Pleas Court’s

judgment overruling his “Motion to Vacate and Correct a Void Sentence.” We affirm

the court’s judgment, but remand this case for the proper imposition of postrelease

control.

         {¶2}   In 2003, Wilson was convicted upon jury verdicts finding him guilty of

felonious assault, aggravated robbery, tampering with evidence, and having weapons

under a disability. He unsuccessfully challenged his convictions in a direct appeal to

this court, State v. Wilson, 1st Dist. No. C-030549 (Aug. 25, 2004), and, collaterally,

in a postconviction petition filed in 2004 and in his “Motion to Vacate and Correct a

Void Sentence” filed in 2012. In this appeal from the overruling of his 2012 motion,

he contends that the common pleas court erred in overruling the motion, because his

sentences are void to the extent that the trial court had failed to adequately notify

him concerning postrelease control.

         {¶3}   Motion was reviewable and subject to dismissal under

the postconviction statutes. Wilson did not specify in his motion the statute

or 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, Wilson’s motion was reviewable under the

standards provided by the postconviction statutes. See State v. Schlee, 117 Ohio

St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12.




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                   OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}     But Wilson 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 Wilson 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 Wilson’s postconviction claim on its merits.

       {¶5}     Common      pleas     court     had    jurisdiction      to   correct

sentences to the extent postrelease-control notification was

inadequate. Nevertheless, a 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 Wilson’s sentences are void to the extent that he was not

adequately notified concerning postrelease control.

       {¶6}     The postrelease-control statutes in effect in 2003, when Wilson was

sentenced, required 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 former R.C. 2929.14(F),

2929.19(B)(3)(c) through (e), and 2967.28(B) and (C) (superseded in 2011 by R.C.

2929.14[D], 2929.19[B][2][c] through [B][2] [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.




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                 OHIO FIRST DISTRICT COURT OF APPEALS



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

Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the

syllabus. Accord State v. Smith, 1st Dist. No. C-120163, 2012-Ohio-5965, ¶ 10-11.

       {¶7}   Thus, in sentencing Wilson for the first-degree felony of aggravated

robbery, the trial court was required to notify him with respect to each offense, both

at sentencing and in the judgment of conviction, that upon his release from prison,

he would be subject to a mandatory five-year period of postrelease-control

supervision. See former R.C. 2929.19(B)(3)(c) and 2967.28(B)(1) (superseded by

R.C. 2929.19[B][2][c] and 2967.28[B]). In sentencing him for the second-degree

felonies of felonious assault, the court was required to notify Wilson that upon his

release, he would be subject to a mandatory three-year period of postrelease control.

See former R.C. 2929.19(B)(3)(c) and 2967.28(B)(2) (superseded by R.C.

2929.19[B][2][c] and 2967.28[B]). In sentencing him for the third-degree felony of

tampering with evidence and the fifth-degree weapons-under-a-disability felony, the

court was required to notify Wilson that upon his release, he would be subject to a

discretionary period of postrelease control of up to three years. See former R.C.

2929.19(B)(3)(d) and 2967.28(C) (superseded by R.C. 2929.19[B][2][d] and

2967.28[C]). And the court was required to notify him of the consequences of

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

for violating postrelease control. See former R.C. 2929.19(B)(3)(e) (superseded by

R.C. 2929.19[B][2][e]).

       {¶8}   At Wilson’s sentencing hearing, the trial court advised him concerning

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

that could be imposed for violating postrelease control. But with respect to the




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                  OHIO FIRST DISTRICT COURT OF APPEALS



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

advised Wilson that “[a]fter prison release you may have up to three years or five

years of postrelease control.”

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

less informative, simply stating 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.

       {¶10} To the extent that postrelease control is not properly imposed, a

sentence is void, and the offending portion of the sentence is subject to review and

correction at any time, whether on direct appeal or in a collateral challenge. 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. Thus, Wilson’s sentences are void to the

extent they were not imposed in conformity with the statutory mandates concerning

postrelease control. And because his motion brought the matter to the common

pleas court’s attention, the court had jurisdiction to review and correct the offending

portions of Wilson’s sentences.

       {¶11} We affirm, but remand for resentencing. We, therefore, hold

that Wilson’s “Motion to Vacate and Correct a 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.      Accordingly, upon the

authority of App.R. 12(A)(1)(a), we modify the judgment appealed from to reflect the

dismissal of the motion. And we affirm the judgment as modified.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶12} But Wilson’s sentences are void to the extent that he was not

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

for correction of the offending portions of his sentences in accordance with the law

and this opinion.

                                                                Judgment accordingly.

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


Please note:

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




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