[Cite as State v. Quillen, 2013-Ohio-3672.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




STATE OF OHIO,                                      :
                                                          CASE NO. CA2012-10-217
        Plaintiff-Appellee,                         :
                                                                OPINION
                                                    :            8/26/2013
    - vs -
                                                    :

TERRANCE QUILLEN,                                   :

        Defendant-Appellant.                        :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2000-03-0306



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Terrance Quillen, #A412908, Marion Correctional Institution, P.O. Box 57, Marion, Ohio
43302, defendant-appellant, pro se



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Terrance Quillen, appeals pro se from the Butler County

Court of Common Pleas decision denying his motion to dismiss his indictment on three

counts of rape, as well as its decision to resentence him to a mandatory five-year postrelease

control term. For the reasons outlined below, we affirm in part, reverse in part, and remand

for further proceedings.
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       {¶ 2} On April 9, 2001, Quillen pled guilty to three counts of rape in violation of R.C.

2907.02(A)(1)(b), all first-degree felonies.    Quillen was subsequently sentenced to an

aggregate 18-year jail term and properly notified of his mandatory five-year postrelease

control obligations. However, as part of his sentencing entry, the trial court improperly

included language indicating Quillen's postrelease control obligations were merely "up to" a

maximum of five years. Quillen did not appeal from his conviction or sentence.

       {¶ 3} On March 23, 2012, Quillen filed a pro se motion to dismiss his indictment and

sentence. In support of this motion, Quillen argued that his sentence was void due to the

improper imposition of his mandatory five-year postrelease control term, and therefore, "the

statutory jurisdiction granted to the Butler County Common Pleas Court over the subject-

matter of this motion" has ceased. The trial court denied Quillen's motion to dismiss on

speedy trial grounds. However, finding Quillen's mandatory five-year postrelease control

term was improperly imposed, the trial court ordered a new sentencing hearing limited to the

proper imposition of his mandatory five-year postrelease control term.

       {¶ 4} On October 9, 2012, the trial court held a resentencing hearing during which the

court properly advised Quillen of his mandatory five-year postrelease control obligations.

The trial court then issued an amended sentencing entry that properly notified Quillen that

postrelease "control is mandatory in this case for 5 years." The trial court also made a

finding that Quillen was entitled to 4,187 days of jail time credit.

       {¶ 5} Quillen now appeals from the trial court's decision, raising three assignments of

error for review. For ease of discussion, Quillen's first assignment of error will be addressed

out of order.

       {¶ 6} Assignment of Error No. 2:

       {¶ 7} THE TRIAL JUDGE ABUSED HIS DISCRETION BY SENTENCING THE

APPELLANT WHILE HE WAS MENTALLY INCOMPETENT WHICH DENIES HIS
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SUBSTANTIVE AND PROCEDURAL DUE PROCESS GUARANTEES OF THE UNITED

STATES CONSTITUTION FOURTEENTH AMENDMENT.

       {¶ 8} In his second assignment of error, Quillen argues the trial court erred by

resentencing him to the mandatory postrelease control term when he made "several

incomprehensible statements" during his resentencing hearing indicating he was "not

competent during those proceedings." In support of this claim, Quillen points to the following

discussion before the trial court:

              [DEFENSE COUNSEL]: My client has some notes here and I've
              asked him about it and he says that what the Court has told him
              up to this point hasn't answered his questions. The first is that
              he says he's unsure of why he's actually in court today given the
              nature of the motions that he's filed up to this point, it's my
              understanding; is that correct, Terrence?

              THE DEFENDANT: Yes; yes, it is.

       {¶ 9} However, Quillen conveniently ignores the remainder of that same discussion,

which included, in pertinent part, the following:

              THE COURT: I thought I answered that, but I'll do it again. He's
              here today for a resentencing on the portion of the sentencing
              entry which was in error, which was the portion of the sentencing
              entry regarding post-release control. * * * [Y]ou were placed on
              post-release control for a period of up to five years, okay? That's
              wrong. The Judge should have told you that the mandatory –
              that the post-release control is five years and it's mandatory. It's
              not 'up to.' It's mandatory. So we're here today to correct that
              entry. That's the reason we're here today. Does that answer
              that question?

              THE DEFENDANT: Yeah.

              THE COURT: Okay. Next question.

              [DEFENSE COUNSEL]: Your Honor, I think, I can kind of
              summarize this. And when I said he didn't understand why
              he was in court today I don't think he's incompetent or
              anything, I think his point is that – these are all his pro se
              motions, Your Honor, so if I'm summarizing them incorrectly, I'm
              sure he can tell me, but it's my client's position that he was never
              sentenced to begin with correctly, and that his sentence is void
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              and that he can't be resentenced upon that void sentence. Is
              that your –

              THE DEFENDANT: Yes.

(Emphasis added.)

       {¶ 10} Quillen then went on to personally address the trial court regarding his position

that the court lacked subject matter jurisdiction to proceed, as well as challenges to his

speedy trial and due process rights. This included several citations to United States

Supreme Court decisions that he claimed supported his argument for dismissal.

       {¶ 11} As can be seen, when taken in its entirety, there is simply nothing in the record

that suggests Quillen was incompetent during his resentencing hearing.              See R.C.

2945.37(B); see also State v. Rodriguez, 12th Dist. Butler No. CA2008-07-162, 2009-Ohio-

4460, ¶ 50; State v. Marks, 8th Dist. Cuyahoga No. 92548, 2009-Ohio-6306, ¶ 26. To

suggest otherwise is nothing more than a mischaracterization of the record before this court.

The trial court, therefore, did not err by resentencing Quillen to correctly notify him of his

mandatory five-year postrelease control term without further inquiry as there was nothing to

suggest he lacked the necessary competency to proceed. See, e.g., State v. Burns, 12th

Dist. Butler Nos. CA2004-07-084 and CA2004-10-126, 2005-Ohio-5290, ¶ 34-40 (affirming

trial court's decision denying request for competency hearing following guilty plea where there

was no indicia of incompetence or good cause shown that would have entitled appellant to a

competency hearing prior to sentencing). Accordingly, as there was nothing to suggest

Quillen lacked the necessary competency, Quillen's second assignment of error is overruled.

       {¶ 12} Assignment of Error No. 3:

       {¶ 13} A QUESTION OF THE COMMON PLEAS COURTS JURISDICTION TO ACT

CAN BE RAISED AT ANYTIME, WHERE THAT COURT LOST JURISDICTION OVER

INDICTMENT AFTER ENTRY OF VOID SENTENCE, THE APPELLANT IS DENIED


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FUNDAMENTAL RIGHTS TO SPEEDY TRIAL GUARANTEED VIA THE 5TH, 6TH, 14TH,

AMENDMENTS U.S.C.A., INCONJUNCTION [sic] WITH STATUTORY RIGHTS OF

APPELLANT TO SPEEDY TRIAL WITHIN 90 DAYS OF ARREST, AND THOUGH GUILTY

PLEA WAIVES RIGHT TO SPEEDY TRIAL, SPEEDY TIME CLOCK IS NOT TOLLED BY A

VOID SENTENCE, SO COMMON PLEAS COURT ABUSED ITS DISCRETION BY NOT

GRANTING MOTION TO DISMISS INDICTMENT IN VIOLATION TO HIS FUNDAMENTAL

RIGHT TO LIBERTY.

       {¶ 14} In his third assignment of error, Quillen challenges the trial court's decision

denying his motion to dismiss the indictment against him. In essence, Quillen argues that his

indictment, conviction, and sentence are all void and must be dismissed as a violation of his

speedy trial rights because his case has been pending for over a decade since he was first

informed of his postrelease control obligations during his June 11, 2001 sentencing hearing.

We disagree.

       {¶ 15} Although the trial court incorrectly informed Quillen of his postrelease control

obligations as part of its original sentencing entry, contrary to Quillen's claims otherwise, this

case has not been pending for over a decade. As noted by the Ohio Supreme Court in State

v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, "a sentence that does not include the

statutorily mandated term of postrelease control is void, and the new sentencing hearing to

which a defendant is accordingly entitled is limited to proper imposition of postrelease

control." State v. Schleiger, 12th Dist. Preble No. CA2011-11-012, 2013-Ohio-1110, ¶ 16.

However, this has absolutely no impact on the "other aspects of the merits of the conviction,

including the determination of guilt." State v. Gipson, 12th Dist. Warren No. CA2011-02-015,

2011-Ohio-5747, ¶ 15, citing Fisher at ¶ 40.

       {¶ 16} Simply stated, it is only the "offending portion" of the sentence that is subject to

review and correction. State v. Watkins, 12th Dist. Butler Nos. CA2010-09-228 and CA2010-
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12-346, 2011-Ohio-5227, ¶ 27, quoting Fisher at ¶ 27. In fact, as this court recently stated, in

a resentencing hearing held for the purpose of properly imposing mandatory postrelease

control, such as the case here, "a trial court has no discretion and is required and limited to

imposing postrelease control the way it was required to do in the first place." Schleiger at ¶

16. Therefore, correcting a sentence to properly impose a mandatory five-year postrelease

control term does not violate or even implicate speedy trial rights. See State v. Peterson, 8th

Dist. Cuyahoga No. 97362, 2012-Ohio-2200, ¶ 11; see also State v. Spears, 9th Dist. Summit

No. 24953, 2010-Ohio-1965, ¶ 19-20.

       {¶ 17} Moreover, it is undisputed that Quillen pled guilty to three counts of rape. "[A]

guilty plea waives the defendant's right to raise a challenge to his conviction based on the

statutory right to a speedy trial on appeal." State v. Melampy, 12th Dist. Brown No. CA2007-

04-008, 2008-Ohio-5838, ¶ 11; State v. Kelley, 57 Ohio St.3d 127 (1991), paragraph one of

the syllabus.   Quillen also signed a waiver of his speedy trial rights.         As with other

fundamental rights, a defendant can waive the statutory right to a speedy trial, so long as the

waiver is "expressed in writing or made in open court on the record." State v. Cox, 12th Dist.

Clermont No. CA2008-03-028, 2009-Ohio-928, ¶ 14, quoting State v. King, 70 Ohio St.3d

158 (1994), syllabus. Such a waiver, when "made knowingly and voluntarily, also constitutes

a waiver of [the defendant's] speedy trial rights guaranteed by the United States and Ohio

Constitutions." State v. O'Hara, 12th Dist. Brown No. CA2009-04-015, 2010-Ohio-107, ¶ 12.

There is nothing in the record to suggest that Quillen's waiver was not knowingly and

voluntarily made. Therefore, Quillen's claim that the indictment must now be dismissed as a

violation of his speedy trial rights is without merit. Accordingly, Quillen's third assignment of

error is overruled.

       {¶ 18} Assignment of Error No. 1:

       {¶ 19} THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN
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ERROR WHEN THE JUDGE CHANGED JAIL TIME CREDIT FROM 4,648 DAYS TO 4,187

DAYS TOTAL JAIL CREDIT DENYING APPELLANT'S 14TH AMEND. U.S.C.A. RIGHT TO

EQUAL PROTECTION UNDER THE LAW.

       {¶ 20} In his first assignment of error, Quillen argues the trial court erred in calculating

the appropriate jail time credit. The state concedes, and we agree, that there was error in the

trial court's calculation and this matter should be remanded so that the court can properly

determine the amount of jail time credit Quillen should be afforded. Therefore, in light of the

record before this court, Quillen's second assignment of error is sustained and this matter is

reversed and remanded to the trial court for the limited purpose of making the factual

determination regarding the calculation and application of jail time credit. We take no

position as to the proper amount of jail time credit. However, we instruct the trial court that in

making its determination, the court should take into account both its January 3, 2007 nunc

pro tunc entry finding Quillen was entitled to 401 days of jail time credit for time served

between May 10, 2000 and June 14, 2001, as well as its October 4, 2012 nunc pro tunc entry

finding Quillen was entitled to 4,187 days of jail time credit for time served between March

20, 2000 to May 10, 2000 and June 15, 2001 to October 9, 2012.

       {¶ 21} Judgment affirmed in part, reversed in part, and remanded.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




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