[Cite as State v. Burns, 2012-Ohio-1626.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                             HIGHLAND COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 11CA19
                               :
     vs.                       : Released: March 30, 2012
                               :
STEPHAN L. BURNS,              : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Conrad A. Curren, Greenfield, Ohio, for Appellant.

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} This is an appeal from a Highland County Court of Common

Pleas decision and entry denying Appellant’s motion to vacate the post

sentence control portion of his sentence, which was imposed by the

Highland County Court of Common Pleas as a result of a violation of post

sentence control originally imposed in Brown County. On appeal, Appellant

contends that 1) the trial court erred to his detriment when it found the nunc

pro tunc issued by the Brown County court valid; and 2) the trial court erred
Highland App. No. 11CA19                                                         2


to his detriment by refusing to vacate the part of his sentence that is based on

a void post release control sanction.

      {¶2} In light of our conclusion that the Brown County Court failed to

properly impose post release control when it originally sentenced Appellant

in 2004, as well as our conclusion that the post release control portion of that

sentence was void as a result, the Highland County court’s denial of

Appellant’s motion to vacate is reversed, and that part of the judgment of the

Highland County trial court imposing a 34 month sentence for the post

release control violation is vacated. Thus, Appellant’s first and second

assignments of error are sustained. Accordingly, this cause is remanded to

the trial court with instructions to notify the appropriate authorities of the

modified sentence. Further, Appellant is ordered to be discharged

immediately.

                                    FACTS

      {¶3} On February 11, 2004, in Brown County Court of Common

Pleas Case No. 2003-2167, Appellant pled guilty and was convicted of five

counts of sexual battery, in violation of R.C. 2907.03(A)(9), all felonies of

the third degree. On June 9, 2004, the Brown County court sentenced

Appellant to stated prison terms of three years on each offense, to be served

concurrently. During the sentencing hearing, the trial court notified
Highland App. No. 11CA19                                                         3


Appellant that he would be subject to a mandatory five year period of post

release control; however, the sentencing entry stated that post release control

would be “mandatory in this case up to five years[.]” (Emphasis added).

There is no information in the record before us on appeal indicating that

Appellant directly appealed from his convictions and sentences issued in the

Brown County court in 2004. Further, the record indicates that Appellant

was released from prison in 2007 and was placed on post release control.

      {¶4} While serving the term of post release control imposed in

connection with the Brown County conviction, on June 19, 2009, Appellant

pled guilty to grand theft, a fourth degree felony, in the Highland County

Court of Common Pleas. On August 5, 2009, the Highland County court

sentenced Appellant to seventeen months on the grand theft conviction, as

well the balance of the five years of post release control on the post release

control violation, which was 1019 days, or approximately 34 months. There

is no indication that Appellant directly appealed from these convictions or

sentences.

      {¶5} However, on August 30, 2010, Appellant filed a motion for

resentencing and to vacate a void judgment of conviction in the Highland

County Court of Common Pleas. In his motion, Appellant asserted that his

34 month sentence stemming from the post release control violation should
Highland App. No. 11CA19                                                                                    4


be vacated, arguing that the original imposition of post release control by the

Brown County court was void. Specifically, Appellant argued that because

his sentencing entry stated that he would be subject to post release control

“up to” five years rather than a mandatory five year term, it was improperly

imposed and therefore void. The State opposed the motion, contending it

was an improper collateral attack on the Brown County sentence, which the

Highland County court had no jurisdiction to address. The trial court denied

Appellant’s motion on October 13, 20101, agreeing with the State that the

only remedy for a void sentence in Brown County must lie in Brown

County.

         {¶6} As such, Appellant subsequently filed, in the Brown County

Court of Common Pleas, a motion for determination that the 2004

sentencing entry was void. In response, the Brown County court held a

hearing on January 5, 2011, nearly four years after Appellant had been

released from prison on the Brown County conviction, where it

acknowledged that the 2004 sentencing entry “did not properly state the

necessary language required by the statute for imposition of Post Release

Control.” The court went on to state, however, that “the proper action, as



1
 It appears this exact entry was filed a second time on November 16, 2010, due to an error in the clerk’s
office.
Highland App. No. 11CA19                                                          5


clarified by State v. Fischer,2 is to correct only the post release portion of

said entry nunc pro tunc.” The court then went on to re-sentence Appellant

to a mandatory five year term of post release control via a nunc pro tunc

entry and remanded him for return to the Ohio Department of Corrections.

           {¶7} On January 21, 2011, Appellant filed another motion in the

Highland County court, entitled motion to vacate a void judgment. In the

motion, Appellant explained that since the original denial of this motion by

the Highland County Court, Appellant had sought redress in Brown County.

In the motion, Appellant explained that the Brown County court vacated the

original 2004 imposition of post release control and re-sentenced him, but

that the re-sentencing was in error as his underlying prison term had already

expired. The State opposed the motion. The Highland County court

appointed counsel for Appellant and held two hearings on the motion. In its

June 8, 2011, decision and entry denying Appellant’s motion to vacate the

post release control portion of the sentence, the trial court essentially

determined that Appellant had waived the error related to the imposition of

post release control by failing to file a direct appeal from the 2004 decision,

and that because the 2004 sentencing entry mentioned post release control,

Appellant was sufficiently put on notice and should have filed a direct


2
    State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332
Highland App. No. 11CA19                                                        6


appeal. The trial court relied on State ex rel. Pruitt v. Cuyahoga Cty. Court

of Common Pleas (2010), 125 Ohio St.3d 402, 2010-Ohio-1808, 928 N.E.2d

722, in reaching this decision. It is from this decision and entry that

Appellant now brings his timely appeal, setting forth two assignments of

error for our review.

                        ASSIGNMENTS OF ERROR

“I.   THE TRIAL COURT ERRED TO THE DETRIMENT OF THE
      DEFENDANT WHEN IT FOUND THE NUNC PRO TUNC
      ISSUED BY THE BROWN COUNTY COURT VALID.

II.   THE TRIAL COURT ERRED TO THE DETRIMENT OF THE
      DEFENDANT BY REFUSING TO VACATE THE PART OF THE
      APPELLANT’S SENTENCE THAT IS BASED ON A VOID POST-
      RELEASE CONTROL SENTENCE.”

                             LEGAL ANALYSIS

      {¶8} As Appellant’s assignments of error are interrelated, we address

them in conjunction with one another. On appeal, Appellant contends that

the Highland County Court of Common Pleas erred to his detriment by

finding the nunc pro tunc entry issued by the Brown County Court of

Common Pleas to be valid, and also by refusing to vacate the part of the

Highland County sentence that is based upon a void post release control

sentence. Specifically, Appellant contends that the Brown County court did

not properly sentence him on post release control, which resulted in that part

of the sentence being void. Appellant also contends that the sentencing error
Highland App. No. 11CA19                                                          7


in Brown county could not be corrected with a nunc pro tunc order because

Appellant’s underlying sentence had expired at the time of the attempted

correction and as such, the Brown county court no longer had jurisdiction

over him. Appellant further contends that the Highland County Court of

Common Pleas’ post release control sanction should be vacated because it

was erroneously based upon a void sentence. Based upon the following, we

agree with Appellant and therefore sustain his arguments raised on appeal.

      {¶9} A situation very similar to the one sub judice was recently

addressed by the Second District Court of Appeals in State v. Portis, Clark

App. No. 2010-CA-95, 2011-Ohio-2429. Much like the facts herein, in

Portis, the trial court failed to properly impose post release control in 2004,

by stating in the sentencing entry that post release control was mandatory

“up to a maximum of three years” rather than “three years.” Id. at ¶ 5. After

completing his two year sentence, Portis committed a new felony in 2007

and was sentenced on the new felony, as well on the post release control

violation. Id. at ¶ 6. Portis filed a direct appeal from this conviction and

sentence, but did not raise any issues regarding the original imposition of

post release control. However, Portis later filed a motion to vacate the

sentence based upon the post release control violation. Id. In support of his

motion, Portis argued that because the trial court had not properly imposed
Highland App. No. 11CA19                                                         8


the post release control sanction in 2004, it was void. The trial court denied

Portis’ motion. Id. at ¶ 7. On appeal, however, the trial court’s decision was

reversed and the part of the sentence based upon the post release control

violation was vacated. Id. at ¶ 19.

      {¶10} In reaching its decision, the Portis court reasoned as follows:

       “Portis's argument is simple. He argues that the trial court, in the 2004
Robbery case, was required to impose post-release control for a period of
three years, not ‘up to’ three years. He relies upon State v. Bezak, 114 Ohio
St.3d 94, 2007-Ohio-3250, for the proposition that an improperly imposed
sentence of post-release control is not merely voidable, but void.

      State v. Bezak, supra, was modified in State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, but only to the extent that it is just the post-release-
control part of the sentence - not the rest of the sentence, and not the
underlying conviction - that is void because it is defective. In State v.
Fischer, supra, the Supreme Court of Ohio stated its holding in its opening
paragraph:

       ‘ * * * 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. Although the doctrine of res judicata does not
preclude review of a void sentence, res judicata still applies to other aspects
of the merits of a conviction, including the determination of guilt and the
lawful elements of the ensuing sentence.’ Id. at ¶ 1.

       This holding is clear enough, and forces us to reject the State's
argument that Portis is barred from challenging the propriety of the post-
release control imposed in the 2004 case by virtue of res judicata, because he
could have, but did not, raise that issue in his direct appeal from the sentence
imposed in his 2007 case, which included a one-year sentence for the post-
release control violation.” Id. at ¶¶ 11-14.
Highland App. No. 11CA19                                                                                        9


         {¶11} We are persuaded by the sound reasoning of the Second District

Court of Appeals and conclude that the issue presented sub judice demands

the same result. Having determined that Appellant’s post release control

sanction was void, he was not on post release control at the time of his

felony offense in 2009 in Highland County.3 Further, by the time the Brown

County court attempted to re-sentence Appellant and issued its nunc pro tunc

entry, Appellant’s prison term had long since expired. As a result, the

Brown County court no longer had jurisdiction over Appellant and could no

longer correct the sentencing error that occurred in 2004. See State v. Ables,

Mercer App. No. 10-11-03, 2011-Ohio-5873 at ¶ 8; citing State v. Bloomer,

122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 70; State v.

Bezak, supra, at ¶ 18; and State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-

1197, 884 N.E.2d 568, at the syllabus.

         {¶12} Further, although the State and the Highland County court were

both concerned about the jurisdictional issues related to addressing the

Brown County court’s actions, we conclude Fischer provides us with


3
 In its June 8, 2011, decision and entry denying Appellant’s motion to vacate, the Highland County Court
of Common Pleas stated that despite the error in the original Brown County 2004 sentencing entry, it
believed Appellant was properly sentenced to post release control, citing State ex rel. Pruitt v. Cuyahoga
County Court of Common Pleas, 125 Ohio St.3d 402, 2010-Ohio-1808, 928 N.E.2d 722, in support.
However, in Pruitt, the Court denied a complaint for a writ of mandamus seeking issuance of a revised
sentencing entry, based upon the reasoning that the “sentencing entry sufficiently included language that
postrelease control was part of [the Appellant’s] sentence so as to afford him sufficient notice to raise any
claimed errors on appeal rather than by extraordinary writ.” Id. at ¶ 4. As Pruitt dealt with a mandamus
action, we do not find its reasoning applicable to the facts sub judice.
Highland App. No. 11CA19                                                          10


authority to cure the error in sentencing that occurred in Highland County in

2009. Specifically, as set forth above, the Supreme Court, in State v.

Fischer, stated that “ * * * 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.” Id. at ¶ 1 (Emphasis added). Thus,

we have the authority to recognize the Brown County court’s sentencing

entry to be void with respect to its attempted imposition of post release

control, despite the fact that Appellant has attacked its validity collaterally

through the Highland County Court of Common Pleas. “It follows that any

sentence imposed as a sanction for a violation of that post-release control is

also void, and subject to vacation.” State v. Portis at ¶ 19; citing State v.

Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 192; relying on

State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753.

      {¶13} Accordingly, Appellant’s arguments are sustained and the trial

court’s judgment denying Appellant’s motion to vacate is reversed. As such,

that part of the Highland County judgment imposing sentence on the post

release control violation is vacated and this cause is remanded to the trial

court with instructions to notify the appropriate authorities of the modified
Highland App. No. 11CA19                                                   11


sentence. Portis at ¶ 21. Further, Appellant is ordered to be discharged

immediately.

                                JUDGMENT VACATED AND CAUSE
                                REMANDED.
Highland App. No. 11CA19                                                             12



                              JUDGMENT ENTRY

    It is ordered that the JUDGMENT BE VACATED AND CAUSE
REMANDED and that the Appellant recover of Appellee 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
Highland County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Exceptions.

Harsha, J. and Kline, J.: Concur in Judgment and Opinion.

                             For the Court,

                             BY:    _________________________
                                    Matthew W. McFarland, Judge

                             NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
