[Cite as State v. King, 2012-Ohio-4580.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. Julie A. Edwards, J.
-vs-
                                                   Case No. CT2012-0009
CHAISE KING

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Muskingum County Court
                                               of Common Pleas, Case No. CR 2011 253


JUDGMENT:                                      Reversed and Remanded


DATE OF JUDGMENT ENTRY:                         October 1, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


ROBERT L. SMITH                                ERIC J. ALLEN
Assistant Prosecuting Attorney                 The Law Office of Eric J. Allen, Ltd.
27 North Fifth Street                          713 South Front
Zanesville, Ohio 43701                         Columbus , Ohio 43206
Muskingum County, Case No. CT2012-0009                                                  2

Hoffman, J.


         {¶1}   Defendant-appellant Chaise King appeals his sentence entered by the

Muskingum County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                                  STATEMENT OF THE CASE1

         {¶2}   On January 9, 2012, Appellant entered a plea of guilty to one count of

aggravated burglary, in violation of R.C. 2911.12, a felony of the first degree.      On

February 13, 2012, the trial court sentenced Appellant to a three year prison term. The

trial court also imposed a three year and ten month prison term for Appellant's alleged

violation of his post-release in Muskingum County Case Number CR 2003-7A.

         {¶3}   Appellant now appeals, assigning as error:

         {¶4}   “I. THE TRIAL COURT ERRED WHEN IT IMPOSED A JUDICIAL

SANCTION OF 1461 DAYS FOR POST RELEASE CONTROL IMPROPERLY

IMPOSED AND NEVER CORRECTED IN CASE NUMBER CR 2003-7A.”

         {¶5}   Appellant argues his post-release control in Muskingum County Case

Number CR2003-7A was improperly imposed because the trial court journal entry

reads,

         {¶6}   "The court further notified the defendant that post release control is

mandatory in this case up to a maximum of five (05) years as well as the consequences

for violating conditions imposed by the parole board under Revised Code §2967.28."

         {¶7}   The Ohio Supreme Court in State v. Fischer, 128 Ohio St.3d 92 (2010),

held a sentence that does not include the statutorily mandated term of post-release



1
 A rendition of the facts underlying the charge is unnecessary for our disposition of this
appeal.
Muskingum County, Case No. CT2012-0009                                                   3


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.

       {¶8}   Appellant's sentence imposing post-release control in the underlying case,

CR 2003-7A, was void as the trial court failed to state a definite term of post-release

control. Appellant had served his entire sentence in Case No. CR2003-7A, had not

been resentenced, and there was no nunc pro tunc entry filed correcting the improper

post-release control imposition according to State v. Bloomer 122 Ohio St.3d 200, 2009-

Ohio-2462 and State v. Simpkins 117 Ohio St.3d 420, 2008-Ohio-1197. Accordingly,

we find the trial court erred in imposing a prison term for violating a “void” post release

control sanction.

       {¶9}   The sole assignment of error is sustained, and Appellant's sentence in the

Muskingum County Court of Common Pleas is reversed, and the matter remanded to

the trial court for the limited purpose of resentencing.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur                            s/ William B. Hoffman _________________
                                              HON. WILLIAM B. HOFFMAN


                                              s/ W. Scott Gwin _____________________
                                              HON. W. SCOTT GWIN


                                              s/ Julie A. Edwards___________________
                                              HON. JULIE A. EDWARDS
Muskingum County, Case No. CT2012-0009                                              4


          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
CHAISE KING                               :
                                          :
       Defendant-Appellant                :         Case No. CT2012-0009


       For the reason stated in our accompanying Opinion, Appellant's sentence in the

Muskingum County Court of Common Pleas is reversed, and the matter is remanded to

the trial court for the limited purpose of resentencing in accordance with our Opinion

and the law. Costs to Appellee.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
