[Cite as State v. McCall, 2013-Ohio-2653.]


                                       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-
                                                  Case No. CT2013-0014
EUGENE B. MCCALL

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. CR2000-0194


JUDGMENT:                                     Reversed and Remanded



DATE OF JUDGMENT ENTRY:                        June 24, 2013



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

D. MICHAEL HADDOX                             KENNETH R. SPIERT
PROSECUTING ATTORNEY                          250 East Broad Street
ROBERT L. SMITH                               Suite 1400
ASSISTANT PROSECUTOR                          Columbus, Ohio 43215
27 North Fifth Street, Suite 201
Zanesville, Ohio 43701
 Muskingum County, Case No. CT2013-0014                                                 2

 Wise, J.

        {¶1}   Appellant Eugene McCall appeals the February 16, 2013, decision of the

Muskingum County Court of Common Pleas denying his motion to vacate post-release

control.

        {¶2}   Appellee is the State of Ohio.

        {¶3}   This case comes to us on the accelerated calendar. App.R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

        {¶4}   “(E) Determination and judgment on appeal. The appeal will be

determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R.

12(A) for the statement of the reason for the court’s decision as to each error to be in

brief and conclusionary form. The decision may be by judgment entry in which case it will

not be published in any form.”

        {¶5}   This appeal shall be considered in accordance with the aforementioned

rule.

                          STATEMENTS OF FACTS AND CASE

        {¶6}   Appellant Eugene McCall was convicted on one count of aggravated

robbery, in violation of R.C. §2901.01(A)(1), a first-degree felony, and one count of

robbery, in violation of R.C. §2901.02(A)(2), a second-degree felony.

        {¶7}   On February 12, 2001, Appellant appeared before the Muskingum County

Court of Common Pleas for sentencing. At the sentencing hearing, the trial court merged

the offenses and imposed a ten (10) year prison term for the aggravated robbery charge.

During the hearing, the trial court advised Appellant “that it would be mandatory that you
 Muskingum County, Case No. CT2013-0014                                                 3


be placed upon five years of post-release control once you’re released from the

institution.”

        {¶8}    In its February 15, 2001, Sentencing Entry, the trial court stated "[t]he

Court further notified the Defendant that 'Post Release Control' is mandatory in this case

up to a maximum of three (03) years as well as the consequences for violating conditions

…"

        {¶9}    On March 20, 2006, following the Ohio Supreme Court decision in State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, Appellant was resentenced. At that time, the

trial court imposed the same ten-year term of incarceration. The March 27, 2006,

Sentencing Entry stated that "the Court further notified the Defendant that 'Post Release

Control' is mandatory in this case up to a maximum of five (5) years[.]" (Emphasis

added.)

        {¶10}   On October 8, 2010, Appellant moved for resentencing based upon the

improper imposition of post-release control. The trial court found Appellant was advised

that "he was subject to post-release control for a period of up to five (5) years[.]" The

court also stated that "based on the defendant's own admission he has served his entire

sentence with respect to the charges for which he stands convicted. Therefore, the Court

finds Defendant's motion to be moot."

        {¶11}   On August 20, 2011, Appellant was released from prison and placed on

post-release control.

        {¶12}   On June 22, 2012, Appellant moved the trial court to vacate the post-

release control.

        {¶13}   On February 26, 2013, the trial court denied the motion to vacate.
 Muskingum County, Case No. CT2013-0014                                                   4


      {¶14}    Appellant now appeals, setting forth the following assignment of error:



                                ASSIGNMENT OF ERROR

      {¶15}    “I. THE TRIAL COURT ERRED IN FAILING TO VACATE THE VOID, "UP

TO" FIVE-YEAR TERM OF POSTRELEASE CONTROL IMPOSED UPON MR. MCCALL

FOR A FIRST-DEGREE FELONY. THIS ERROR VIOLATES MR. MCCALL'S RIGHTS

TO DUE PROCESS AND EQUAL PROTECTION UNDER THE OHIO AND UNITED

STATES CONSTITUTIONS.”

                                              I.

      {¶16}    In his sole Assignment of Error, Appellant argues that the trial court erred

in denying his motion to vacate post-release control.

      {¶17}    Upon review, we find that post-release control was not properly imposed

in this case, and that the trial court cannot correct the error at this juncture because

Appellant has already completed his prison sentence.

      {¶18}    The Supreme Court of Ohio has held that “[a] sentence that does not

include the statutorily mandated term of post-release 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. The Supreme Court has explained that “ Fischer applies to

every criminal conviction, including a collateral attack on a void sentence[.]” State v.

Billiter, 134 Ohio St.3d 103, 2012–Ohio–5144, ¶ 11.

      {¶19}    In this case, Thomas was convicted of aggravated robbery pursuant to

R.C. §2911.01(A)(1), a felony of the first degree. Therefore, Appellant was subject to a
 Muskingum County, Case No. CT2013-0014                                                   5


mandatory five-year term of post-release control. R.C. §2967.28(B)(1). As set forth

above, Appellant was not properly sentenced to post-release control in accord with the

statutory mandate.       Since the trial court did not impose post-release control in

accordance with the terms set forth in R.C. §2967.28(B), that portion of the sentencing

entry is void. Fischer at paragraph one of the syllabus.

       {¶20}    We therefore find that the trial court erred in denying the motion to vacate

post-release control filed by Appellant after he was released from prison. While the lawful

elements of Appellant's sentence remained in place during the time he was serving his

term of incarceration, the sentence was void in specific regard to post-release control.

Fischer, paragraphs one and three of the syllabus. Once a defendant is released from

prison, the interest in finality takes hold and the trial court does not have authority to

correct a post-release control error. State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-

2462, ¶ 70.

       {¶21}    As the trial court did not properly impose post-release control at the time

Appellant was sentenced, and it failed to correct the problem before he was released

from prison, we conclude that Appellant was not subject to post-release control following

his release from prison. State v. Baker, 9th Dist. No. 26411, 2012–Ohio–5645, ¶ 4–5,

citing Billiter at ¶ 11–12.

       {¶22}    This Court, therefore, remands this matter to the trial court to vacate the

portion of the 2006 sentencing entry that attempted to impose post-release control. The

trial court is also instructed to note on the record that, because Appellant has completed

his prison sentence, he will not be subject to resentencing pursuant to law.
 Muskingum County, Case No. CT2013-0014                                              6


       {¶23}   Based on the foregoing, this Court finds Appellant’s sole Assignment of

Error well-taken and hereby sustains same.

       {¶24}   The decision of the Court of Common Pleas of Muskingum County, Ohio,

is reversed and this matter is remanded for further proceedings consistent with the law

and this opinion.



By: Wise, J.

Hoffman, J., and

Farmer, J., concur.


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                                             ___________________________________


                                             ___________________________________

                                                               JUDGES
 JWW/d 0614
Muskingum County, Case No. CT2013-0014                                        7


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




STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
EUGENE B. MCCALL                            :
                                            :
       Defendant-Appellant                  :         Case No. CT2013-0014




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio, is reversed and

remanded for further proceedings consistent with this opinion.

       Costs assessed to Appellant.




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                                            ___________________________________


                                            ___________________________________

                                                                 JUDGES
