[Cite as State v. Tucker, 2011-Ohio-4620.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Sheila G. Farmer, J.
-vs-
                                                  Case No. 2011CA00084
ERIC TUCKER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 1998CR1366


JUDGMENT:                                       Reversed and Remanded

DATE OF JUDGMENT ENTRY:                         September 12, 2011

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                ERIC TUCKER, PRO SE
PROSECUTING ATTORNEY                           Richland Correctional Institution
STARK COUNTY, OHIO                             Inmate No. 368-090
                                               1001 Olivesburg Rd., P.O. 8107
BY: RONALD MARK CALDWELL                       Mansfield, Ohio 44901-8107
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2011CA00084                                                     2

Hoffman, J.


        {¶1}   Defendant-Appellant Eric Tucker appeals the March 16, 2011 Judgment

Entry entered by the Stark County Court of Common Pleas denying his motion to

correct sentence and for a de novo sentencing hearing. Plaintiff-appellee is the State of

Ohio.

                                 STATEMENT OF THE CASE

        {¶2}   On November 12, 1998, Appellant was indicted by the Stark County

Grand Jury on one count of aggravated burglary (R.C. 2911.11), one count of attempted

murder (R.C.2923.02), and one count of aggravated robbery (R.C.2911.01), with firearm

specifications accompanying each count. Appellant entered pleas of guilty in the Stark

County Common Pleas Court. The court accepted the pleas, convicted Appellant as

charged, and ordered a pre-sentence investigation.

        {¶3}   At the sentencing hearing, the court detailed the facts and circumstances

of the case, relying on the pre-sentence investigation, the victim impact statements, the

statements of the defendants, the lab reports, and photographs. The court then

articulated its reasons for imposing an aggregate sentence of twenty-one years of

incarceration. The twenty-one year sentence consisted of: eight years incarceration for

aggravated burglary; ten years incarceration for attempted murder; ten years

incarceration for aggravated robbery; and three years for each firearm specification. The

sentences for attempted murder and aggravated robbery ran concurrently with each

other, but consecutively to the aggravated burglary sentence. The court merged the

three firearm specifications into one count, and ordered Appellant to serve a mandatory
Stark County, Case No. 2011CA00084                                                       3


term of three years, running consecutively and prior to the sentences on the underlying

offenses.

      {¶4}   Appellant appealed his sentence to this Court arguing the evidence did not

support either a maximum or a consecutive sentence. This Court affirmed the sentence

imposed via Judgment Entry of September 20, 1999. State v. Tucker, Stark App. No.

1999CA00096.

      {¶5}   On November 5, 2001, Appellant filed a motion to withdraw his plea of

guilty in the trial court. The court overruled the motion, and Appellant again filed an

appeal with this Court. Via Judgment Entry of December 16, 2002, this Court affirmed

the decision of the trial court denying Appellant’s motion to withdraw his plea. State v.

Tucker, Stark App. No. 2002CA00158, 2002-Ohio-7009.

      {¶6}   On October 17, 2003, Appellant filed a petition for post conviction relief to

overturn his conviction and sentence. The trial court denied the petition, and Appellant

appealed to this Court. This Court overruled the assigned error, and affirmed the trial

court’s dismissal. State v. Tucker, Stark App. No. 2003CA00397, 2004-Ohio-3060.

      {¶7}   On August 3, 2007, appellant filed a motion for resentencing to require the

trial court to specify the terms of post-release control. The trial court overruled the

motion, noting it had notified appellant of his post-release control obligations at the

December 1998 guilty plea hearing. At the January 1999 sentencing hearing, the trial

court noted Appellant's counsel had acknowledged the prior notification and waived a

renotification of the post-release control obligation at this subsequent hearing. The trial

court included the transcript pages of these hearings that noted the notification and

waiver.
Stark County, Case No. 2011CA00084                                                      4


         {¶8}   This Court held the trial court did not commit reversible error in denying

Appellant's postconviction motion for resentencing. State v. Tucker, Stark App. No.

2007CA00306, 2008-Ohio-1067.

         {¶9}   On July 30, 2009, Appellant moved the trial court to correct the 1999

sentencing entry, and the trial court overruled the motion. Appellant did not file an

appeal from the trial court’s denial.

         {¶10} Appellant then filed a complaint for mandamus seeking a writ requiring the

trial court resentence him. In the complaint, Appellant alleged the term of post-release

control was not properly imposed. This Court dismissed the mandamus action, holding

Appellant had an adequate remedy at law by way of an appeal to challenge the legality

of his sentence. This Court’s Judgment Entry was then affirmed by the Ohio Supreme

Court.

         {¶11} On January 18, 2011, Appellant filed a motion to correct sentence and for

a de novo sentencing hearing with the trial court. Appellant argued his sentence was

void due to the improper imposition of post release control. The trial court overruled the

motion based upon the doctrine of res judicata, via Judgment Entry of March 16, 2011

         {¶12} It is from the March 16, 2011 Judgment Entry Appellant now appeals,

assigning as error:

         {¶13} “I. THE TRIAL COURT ERRED WHEN IT DID NOT CORRECT THE

SENTENCING ORDER TO SPEAK THE TRUTH.

         {¶14} “II. THE COURT LACKED JURISDICTION OR IN THE ALTERNATIVE

ABUSED ITS DISCRETION WHEN A JUDGE NOT ASSIGNED TO THE CASE

ENTERTAINED A MOTION AND ISSUED A JUDGMENT ENTRY WITHOUT
Stark County, Case No. 2011CA00084                                                          5


REASONS BY THE PRESIDING JUDGE OF THE STARK COUNTY COURTS OF

COMMON PLEAS.

       {¶15} “III. THE TRIAL COURT ERRED WHEN IT ADDRESSED THE

APPELLANT’S       MOTION       CONCERNING         THE     FACTS     WITH     THE     EQUAL

PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT IN THE UNITED

STATES CONSTITUTION.”

                                                  I

       {¶16} As a general rule, issues raised in a prior appeal or which could have

been raised in a previous appeal are barred by law of the case doctrine. However, a

void judgment cannot act to bar subsequent litigation since the trial court lacked

jurisdiction to issue the erroneous judgment entry. State v. Simpkins 117 Ohio St.3d

420, 2008-Ohio-1197.

       {¶17} The trial court’s February 1, 1999 Change of Plea and Sentencing

Judgment Entry states,

       {¶18} “The Court has further notified the defendant that post release control is

mandatory in this case up to a maximum of 5 years, as well as the consequences for

violating conditions of post release control imposed by the Parole Board under Revised

Code Section 2967.28. The defendant is ordered to serve as part of this sentence any

term of post release control imposed by the Parole Board, and any prison term for

violation of that post release control.” (Emphasis added.)

       {¶19} In State v. Green Stark App. No. 2010CA000198, 2011-Ohio-1636, this

Court addressed the issue of whether “up to” language as found in Appellant’s

sentencing entry is sufficient for a trial court to properly impose post release control:
Stark County, Case No. 2011CA00084                                                      6


      {¶20} “Appellant claims the trial court erred in denying his motion to correct a

void sentence and request for resentencing. We agree.

      {¶21} “‘In 1996, the General Assembly imposed a duty on trial courts to notify an

offender at the sentencing hearing of the imposition of post release control and of the

authority of the parole board to impose a prison term for a violation; the General

Assembly also required that a court include any post release-control sanctions in its

sentencing entry. See former R.C. 2929.14(F) and former R.C. 2929.19(B)(3)(b)

through (d) and (B)(4), Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, 7470, 7486–

7487.’ State v. Singleton, 124 Ohio St.3d 173, 920 N.E.2d 958, 2009–Ohio–6434, ¶ 22.

      {¶22} “The Singleton court at paragraph one of the syllabus held, ‘[f]or criminal

sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose

post release control, trial courts shall conduct a de novo sentencing hearing in

accordance with decisions of the Supreme Court of Ohio.’ Appellant sub judice was

sentenced on November 8, 2000.

      {¶23} “In his motion to correct a void sentence and request for resentencing filed

June 16, 2010, appellant argued during his sentencing, the trial court erred in imposing

post release control because he was informed postrelease control was mandatory ‘up to

a maximum of 5 years’ when in fact five years was the mandatory time:

      {¶24} “‘The trial court in defendant's sentencing entry only journalized the post

release control period for ‘maybe the Maximum term of five years.’ (sic) on page (2) of

the sentencing entry. As required by R.C. 2967.28 the period for a first degree felony is

the maximum of five mandatory years, the notice given by the trial court indicates that

defendant can and would be given post release control by the parole board for any
Stark County, Case No. 2011CA00084                                                       7


period of 1, 2, 3 or 5 years of post release control which is contrary to law and therefore

void in this case.’

       {¶25} “In the trial court's judgment entry on sentencing filed November 8, 2000,

post release control was imposed as follows:

       {¶26} “‘The Court has further notified the defendant that post release control is

mandatory in this case up to a maximum of 5 years, as well as the consequences for

violating conditions of post release control imposed by the Parole Board under Revised

Code Section 2967.28. The defendant is ordered to serve as part of this sentence any

term of post release control imposed by the Parole Board, and any prison term for

violation of that post release control.’

       {¶27} “***

       {¶28} “There is no doubt that appellant was notified of mandatory post release

control and assented to it. However, appellant argues his sentence is void because he

was not informed that the mandatory term was five years as opposed to ‘up to’ five

years. R.C. 2967.28(B)(1). We agree with appellant's argument. The trial court failed to

satisfy ‘our existing precedent—that it notify the offender of the mandatory nature of the

term of post release control and the length of that mandatory term and incorporate that

notification into its entry.’ State v. Bloomer, 122 Ohio St.3d 200, 909 N.E.2d 1254,

2009–Ohio–2462, ¶ 69. [Footnote omitted.] As such, appellant's sentence is void. See,

State v. Jordan, 104 Ohio St.3d 21, 817 N.E.2d 864, 2004–Ohio–6085; State v. Bezak,

114 Ohio St.3d 94, 868 N.E.2d 961, 2007–Ohio–3250; State v. Simpkins, 117 Ohio

St.3d 420, 884 N.E.2d 568, 2008–Ohio–1197.
Stark County, Case No. 2011CA00084                                                    8


      {¶29} “Upon review, we find the trial court erred in denying appellant's motion to

correct a void sentence and request for resentencing. Appellant is entitled to a de novo

sentencing hearing as mandated in Singleton, supra. We note the new sentencing

hearing ‘is limited to proper imposition of post release control.’ State v. Fischer, 128

Ohio St.3d 92, 942 N.E.2d 332, 2010–Ohio–6238, paragraph two of the syllabus.”

      {¶30} Other appellate districts similarly have found using “up to” language when

imposing post-release control is error—and renders the post-release control portion of

the sentence void—where mandatory post-release control for a specific number of

years is required. State v. Adkins 2011 Ohio 2819, 2nd District. See, e.g., State v.

Bregen, Clermont App. No.2010–06–039, 2011–Ohio–1872, ¶ 25; State v. Jones,

Wayne App. No. 10 CA 0022, 2011–Ohio–1450, ¶ 11–13; State v. Gaut, Trumbull App.

No.2010–T–0059, 2011–Ohio–1300, ¶ 20–24; State ex rel. Hazel v. Bender, Franklin

App. No. 10AP–435, 2011–Ohio–1027, ¶ 5; State v. Cottrill, Pickaway App. No. 10 CA

38, 2011–Ohio–2122, ¶ 9; State v. Green, Stark App. No.2010 CA 00198, 2011–Ohio–

1636, ¶ 16; State v. Jones, Cuyahoga App. No. 94216, 2010–Ohio–4136, ¶ 4–5.
Stark County, Case No. 2011CA00084                                                      9


      {¶31} Accordingly, we find that portion of Appellant’s February 1, 1999 sentence

imposing a period of post release control “up to five years” void, and the matter is

remanded to the trial court for a new sentencing hearing limited to the imposition of post

release control in accordance with the law and this Opinion.

      {¶32} Appellant’s first assignment of error is sustained.

                                             II & III

      {¶33} In light of our disposition of Appellant’s first assignment of error, we find

any discussion of these two remaining assignments of error to be premature.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur                           ___________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            ___________________________________
                                            HON. W. SCOTT GWIN


                                            ___________________________________
                                            HON. SHEILA G. FARMER
Stark County, Case No. 2011CA00084                                                  10


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


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
ERIC TUCKER                                :
                                           :
       Defendant-Appellant                 :         Case No. 2011CA00084


       For the reason stated in our accompanying Opinion, the March 16, 2011

Judgment Entry of the Stark County Court of Common Pleas is reversed, and the matter

remanded to the trial court for the limited purpose of imposing post-release control in

accordance with the law and our Opinion. Costs waived.




                                           ___________________________________
                                           HON. WILLIAM B. HOFFMAN


                                           ___________________________________
                                           HON. W. SCOTT GWIN


                                           ___________________________________
                                           HON. SHEILA G. FARMER
