[Cite as State v. Murphy, 2014-Ohio-323.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




STATE OF OHIO                               :       JUDGES:
                                            :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                  :       Hon. Sheila G. Farmer, J.
                                            :       Hon. John W. Wise, J.
-vs-                                        :
                                            :
TERRY L. MURPHY                             :       Case No. CT2013-0028
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. CR2013-0059



JUDGMENT:                                           Reversed and Remanded




DATE OF JUDGMENT:                                   January 29, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

ROBERT SMITH                                        KENNETH R. SPIERT
27 North Fifth Street                               250 East Broad Street, 14th Floor
Zanesville, OH 43701                                Columbus, OH 43215
Muskingum County, Case No. CT2013-0028                                                 2

Farmer, J.

        {¶1}   On July 31, 2007, the Muskingum County Common Pleas Court

sentenced appellant, Terry Murphy, to an aggregate term of four years in prison, and

notified appellant that post-release control was optional up to three years (Case No.

CR2007-0070).

        {¶2}   On May 1, 2013, the trial court sub judice sentenced appellant to an

aggregate term of eight years in prison (Case No. CR2013-0059). The trial court further

found appellant had violated the terms of his post-release control in Case No. CR2007-

0070.    The trial court terminated appellant's post-release control in said case and

ordered him to serve the remainder of his post-release control consecutively to the eight

year sentence.

        {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

        {¶4}   "THE TRIAL COURT ERRED IN IMPOSING A JUDICIAL SANCTION

UNDER OHIO REVISED CODE SECTION 2929.141(A)(1) BASED UPON A VOID

ENTRY IMPOSING POSTRELEASE CONTROL.                    THIS ERROR VIOLATES MR.

MURPHY'S RIGHTS TO DUE PROCESS AND EQUAL PROTECTION UNDER THE

FIFTH     AND     FOURTEENTH       AMENDMENTS         TO     THE    UNITED      STATES

CONSTITUTION AND ARTICLE I, SECTIONS 2 AND 16 OF THE OHIO

CONSTITUTION."
Muskingum County, Case No. CT2013-0028                                                   3


                                            II

      {¶5}   "THE TRIAL COURT ERRED WHEN IMPOSING A SANCTION UNDER

OHIO REVISED CODE SECTION 2929.141(A)(1) BY FAILING TO STATE THE

NUMBER OF DAYS THAT MR. MURPHY IS REQUIRED TO SERVE ON THAT

SENTENCE. THIS ERROR VIOLATES MR. MURPHY'S RIGHTS TO DUE PROCESS

UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."

                                             I

      {¶6}   Appellant argues the trial court erred in ordering him to serve the

remainder of his post-release control from Case No. CR2007-0070, as the order of post-

release control was void. We agree.

      {¶7}   In Case No. CR2007-0700, appellant was notified that post-release control

was optional up to three years, when in fact it was a mandatory three year term;

therefore the order of post-release control was void and cannot now be used against

him. The state concedes this argument in its brief at 2-3, on the applicability of State v.

Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, ¶ 12:



             Here, the trial court failed to sentence Billiter to a correct term of

      postrelease control. Accordingly, his sentence was void. Fischer [128

      Ohio St.3d 92, 2010-Ohio-6238], paragraph one of the syllabus. 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. Jordan, 104 Ohio St.3d 21, 2004-
Muskingum County, Case No. CT2013-0028                                                  4


      Ohio-6085, 817 N.E.2d 864, ¶ 17. Although the Adult Parole Authority

      actually did place Billiter under supervision, see R.C. 2921.01(E), and

      Billiter did violate the terms of that postrelease control in violation of R.C.

      2921.34(A)(1), Billiter's escape conviction was based on an invalid

      sentence. Accordingly, the trial court was without jurisdiction to convict

      him on the escape charge.



      {¶8}    Assignment of Error I is granted.

                                            II

      {¶9}    Based upon our decision in Assignment of Error I, we find this assignment

to be moot.
Muskingum County, Case No. CT2013-0028                                           5


      {¶10} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby reversed, and the matter is remanded to said court for resentencing.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




SGF/sg 116
