[Cite as State v. Williamson, 2014-Ohio-3909.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 100563 and 101115



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                             MICHAEL WILLIAMSON
                                                       DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                   Criminal Appeals from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-01-406972

        BEFORE: E.A. Gallagher, P.J., E.T. Gallagher, J., and Stewart, J.

        RELEASED AND JOURNALIZED:                        September 11, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: Cullen Sweeney
Assistant Cuyahoga County Public Defender
310 Lakeside Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, P.J.:
       {¶1} Michael Williamson (“Williamson”), in these consolidated appeals, appeals

from a nunc pro tunc journal entry issued by the Cuyahoga County Court of Common

Pleas on September 30, 2013, and from a hearing conducted on February 13, 2014.

Williamson argues that the trial court may not use a nunc pro tunc journal entry to impose

postrelease control without first holding a new sentencing hearing and that the trial court

was without jurisdiction to conduct the February 13, 2014 hearing. He seeks to vacate

the trial court’s nunc pro tunc entry and remand for a new sentencing hearing on the issue

of postrelease control in one case and to vacate the entry relating to the February 13, 2014

hearing.   For the following reasons, we reverse.

       {¶2} In 2001, Williamson was convicted of 12 counts of rape in violation of R.C.

2907.02 and was sentenced to 12 consecutive life terms.            This court affirmed his

convictions in State v.Williamson, 8th Dist. Cuyahoga No. 80982, 2002-Ohio-6503. At

that time, Williamson did not raise any errors regarding his sentence or issues as to

postrelease control.

       {¶3} In 2011, Williamson filed, pro se, a “motion to vacate void judgment and

order new sentencing hearing.” In that motion, Williamson states: “The court notified the

Defendant about postrelease control during his sentencing being part of his prison

sentence * * * ” but he went on to claim that the trial court neglected to advise him of the

ramifications of violating postrelease control.     He claimed that this defect rendered his

sentence void and that the court should conduct a de novo sentencing hearing.

Williamson, however, failed to attach to the motion a copy of the transcript of the 2002
sentencing hearing in order to demonstrate the alleged inadequate notification by the trial

court.

         {¶4} In its response to Williamson’s motion, the state argued that because

Williamson failed to provide a copy of the sentencing transcript to support his claim that

he was inadequately advised of his postrelease control, his motion should be denied.

The state requested, however, that the trial court conduct a sentencing hearing prior to his

first scheduled parole hearing date, in November 2012 for the purpose of properly

imposing postrelease control.

         {¶5} In February 2012, the trial court issued a judgment entry, stating, “motion to

vacate void judgment and order new sentencing hearing is hereby denied.           Court will

resentence defendant on PRC issue only prior to release from prison if necessary.”

Williamson did not appeal from this order.

         {¶6} In November 2012, Williamson filed a “motion to correct sentence,” pro se.

Again, Williamson indicated that “Defendant was advised [of] postrelease control is a

part of this prison sentence for the maximum period allowed for the above felonies under

Ohio Revised Code 2967.28” and he requested a new sentencing hearing.         The trial court

denied the motion.      Williamson appealed, raising seven assignments of error.         He

claimed the trial court (1) erred in not advising him of his right to a direct appeal, (2)

failed to consider the sentencing principles set forth in R.C. 2929.11 and 2929.12, (3)

failed to determine the days of jail-time credit, (4) entered an incorrect journal entry, (5)

failed to advise him of his registration duties as a sexual predator, (6) erred by not
merging the 12 counts of rape at sentencing and (7) failed to properly impose postrelease

control.

       {¶7} This court found Williamson’s claims were barred under the doctrine of res

judicata, with one exception: the claim regarding the trial court’s failure to fully advise

him of postrelease control at sentencing and to properly impose postrelease control in the

sentencing entry. State v. Williamson, 8th Dist. Cuyahoga No. 99473, 2013-Ohio-3733,

¶ 11 (“Williamson II”). We noted that, pursuant to State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, the principles of res judicata did not preclude appellate

review of Williamson’s allegedly void sentence despite the fact that he did not raise the

error on direct appeal.   Because Williamson failed to provide the transcript of his 2002

sentencing hearing and, through his motions, represented that he was advised of

postrelease control, albeit in his opinion inadequately, this court presumed the regularity

and propriety of the lower court’s proceedings and found that Williamson had been

properly notified of postrelease control at sentencing. Id. at ¶ 16.

       {¶8} We found, however, that the trial court failed to include the proper

postrelease notification in Williamson’s sentencing judgment entry and issued a limited

remand for correction of the error with a nunc pro tunc journal entry. Id. at ¶ 23.

       {¶9} On September 30, 2013, the trial court issued a corrective nunc pro tunc

journal entry. Williamson appealed the nunc pro tunc entry in Court of Appeals Case

No. 100563, raising the following two assignments of error:

       1. The trial court erred in imposing postrelease control by a “conventional”
       nunc pro tunc journal entry when it did not impose postrelease control at the
       original sentencing hearing.

       2. The trial court erred in imposing postrelease control by nunc pro tunc
       journal entry when it did not impose postrelease control at the original
       sentencing hearing or at any subsequent hearing.

       {¶10} While that appeal was pending, the trial court ordered Williamson to appear

for a resentencing hearing and, on February 13, 2014, the trial court held a hearing for the

limited purpose of properly advising Williamson of his postrelease control. Williamson

appealed from the order resulting from that hearing in Court of Appeals Case No.

101115, raising the following two assignments of error:

       1. The trial court erred by conducting a hearing to remedy its previous
       failure to advise appellant of postrelease control, without having
       jurisdiction to do so.

       2. The trial court erred, having failed to impose postrelease control at
       appellant’s sentencing, erred by conducting a subsequent hearing limited to
       the narrow scope of postrelease control notification, rather than conducting
       a new sentencing hearing.

       {¶11} We have consolidated the two appeals for appropriate resolution. Both

Williamson’s assignments of error in Court of Appeals Case No. 100563 argue that he

was not properly advised of postrelease control at his original sentencing hearing in 2002.



       {¶12} 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. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus.       A trial court

may correct the omission at a new sentencing hearing. Id.       Williamson relies on State
v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, to support the

proposition that ordinarily nunc pro tunc journal entries cannot serve to correct the failure

to notify a defendant of postrelease control at a sentencing hearing. Id. at ¶ 26.   Instead,

a new sentencing hearing must be held for the narrow purpose of proper imposition of

postrelease control. Fischer at ¶ 29.

        {¶13} This is the second time that Williamson has placed the issue of “improper”

imposition of postrelease control at his 2002 sentencing hearing before this court. In

Williamson II, he failed to submit a transcript of his 2002 sentencing hearing to support

his claims.   When an appellant claims an improper postrelease control notification at the

sentencing hearing, “but fails to include in the record a transcript of the sentencing

hearing, the reviewing court must presume the regularity and propriety of that hearing and

find that appellant was properly notified.” In Williamson II we held that:

        [W]here a defendant failed to demonstrate a deficiency of postrelease
        control notification at the sentencing hearing, but the judgment entry failed
        to include a full notification, the defendant is not entitled to a new
        sentencing hearing regarding the postrelease control, because a nunc pro
        tunc entry may be used to correct any omission.

Id. ¶18

        {¶14} This court now has the original transcript of Williamson’s sentencing before

it.   Ordinarily, the doctrines of res judicata and the law of the case would preclude

further review of this matter. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d

332, paragraph one of the syllabus instructs us that the rules of res judicata and the law of

the case do not apply in the face of a void sentence.
       {¶15} However, this is not the ordinary case but rather an anomaly wrapped in an

enigma.    While we do not countenance multiple appeals of the same issues and

recognize the doctrine of the law of the case, we must preserve the sanctity of the

Constitutions of the United States and the State of Ohio and assure that this appellant is

afforded due process of law. The bottom line is that, with the benefit of the transcript, it

is now clear that the trial court never advised Williamson at sentencing of any of the

postrelease control provisions and, therefore, the mandate of this court to issue a nunc pro

tunc order was without foundation.

       {¶16} The trial court could not nunc what it did not first tunc.

       {¶17} We find merit to Williamson’s assignments of error in Court of Appeals

Case No. 100563.

       {¶18} As to the first assignment of error in appellate Court Case No. 101115, once

an appeal is taken, the trial court is divested of jurisdiction until the case is remanded to it

by the appellate court, except where the retention of jurisdiction is not inconsistent with

that of the appellate court to review, affirm, modify, or reverse the order from which the

appeal is perfected. State v. Abboud, 8th Dist. Cuyahoga Nos. 87660 and 88078,

2006-Ohio-6587, ¶ 11, citing State v. Taogaga, 8th Dist. Cuyahoga No. 79845,

2002-Ohio-5062; State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55

Ohio St.2d 94, 97, 387 N.E.2d 162 (1978). Where the trial court enters an order without

jurisdiction, its order is void and a nullity. Abboud at ¶ 13. A void judgment puts the

parties in the same position they would be in if it had not occurred. Abboud at ¶ 13.
As Williamson’s appeal of the trial court’s nunc pro tunc journal entry was pending at the

time of the trial court’s resentencing hearing, we agree that the lower court was without

jurisdiction and its action is void.

       {¶19} Williamson’s first assignment of error in appellate Case No. 101115 is

sustained.

       {¶20} Finally, in his second assignment of error in appellate Case No. 101115

Williamson argues that he is entitled to a de novo resentencing. However, pursuant to

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the

syllabus the new sentencing hearing to which an offender is entitled is limited to proper

imposition of postrelease control.     State v. White,      8th Dist. Cuyahoga No. 99280,

2013-Ohio-3808, ¶ 9; State v. Jones, 8th Dist. Cuyahoga No. 95882, 2011-Ohio-2929, ¶

8; State v. Braddy, 8th Dist. Cuyahoga No. 97816, 2012-Ohio-4720, ¶ 7.

       {¶21} Williamson’s second assignment of error in appellate Case No. 101115 is

overruled.

       {¶22} The judgment of the trial court is reversed.

       {¶23} We remand this case for vacation of the order dated February 13, 2014 and a

new sentencing hearing limited to the advisement of postrelease control.

       It is ordered that appellant recover from appellee the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR
