[Cite as State v. Billiter, 2011-Ohio-2230.]


                                          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. Patricia A. Delaney, J.
-vs-
                                                    Case No. 2010CA00292
DONALD BILLITER

         Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Stark County Court of
                                                 Common Pleas, Case No. 2004CR00452


JUDGMENT:                                        Affirmed


DATE OF JUDGMENT ENTRY:                          May 9, 2011


APPEARANCES:


For Plaintiff-Appellee                           For Defendant-Appellant


JOHN D. FERRERO,                                 STEPHEN P. HARDWICK
PROSECUTING ATTORNEY,                            Assistant Public Defender
STARK COUNTY, OHIO                               250 East Broad Street, Suite 1400
                                                 Columbus, Ohio 43215
BY: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2010CA00292                                                             2

Hoffman, J.


         {¶1}   Defendant-appellant Donald Billiter appeals the denial of his motion to

withdraw his plea of guilty in the Stark County Court of Common Pleas.                 Plaintiff-

appellee is the State of Ohio.

                                   STATEMENT OF THE CASE1

         {¶2}   In 1998, Appellant entered a plea of guilty to one count each of

aggravated burglary and domestic violence. As a result of his plea and subsequent

conviction, Appellant was sentenced to an aggregate prison term of three years. The

sentencing judgment entry included an incorrect statement of his post-release control

obligations. The trial court’s entry noted Appellant would be subject to post-release

control for a period of up to three years.

         {¶3}   The Court had further notified the defendant post release control is

mandatory in this case up to a maximum of three (3) years, as well as the

consequences for violating conditions of post release control imposed by the Parole

Board under Revised Code 2967.28. The defendant was 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.

         {¶4}   Appellant was released from prison on May 20, 2001. Within the three

year period of post release control, Appellant entered a plea of guilty to escape from his

post release control detention on April 26, 2004.         On June 3, 2004, the trial court

sentenced Appellant to a community control sanction on his escape conviction.

Appellant did not file an appeal.        Subsequently, Appellant violated the terms and

1
    A statement of the facts is unnecessary to our disposition of the within appeal.
Stark County, Case No. 2010CA00292                                                         3


conditions of his community control sanction, resulting in the revocation of his probation

by the trial court. The trial court then sentenced Appellant to a six year prison term.

Appellant did not appeal the revocation or the imposition of the prison sentence.

       {¶5}   On July 21, 2008, Appellant filed a motion to suspend further execution of

sentence based upon Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126.

However, the trial court overruled the motion finding the imposition of the erroneous

period of post-release control benefitted Appellant; not prejudiced him as Appellant had

committed the escape within the lesser time period.

       {¶6}   Appellant filed an appeal of the trial court’s judgment entry overruling his

motion to suspend execution to this Court. Appellant argued the trial court should have

vacated the escape conviction as he was not validly on post-release control This Court

rejected the argument, affirming the judgment of the trial court, citing the Ohio Supreme

Court’s opinion in Watkins v. Collins, 111 Ohio St.3d 425. The next day, the Ohio

Supreme Court announced its decision in State v. Bloomer 122 Ohio St.3d 200, 2009-

Ohio-2462. In Bloomer, the Supreme Court held a sentence including a term of post-

release control is void where the trial court failed to “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”. Appellant did not seek reconsideration or

appeal this Court’s decision to the Ohio Supreme Court.

       {¶7}   In 2010, Appellant filed a motion to withdraw his guilty plea on the ground

his conviction for the offense of escape was a nullity. The trial court overruled the

motion based, in part, on res judicata.

       {¶8}   Appellant now appeals, assigning as error:
Stark County, Case No. 2010CA00292                                                     4


       {¶9}   “I. THE TRIAL COURT ERRED BY DENYING HIS MOTION TO

WITHDRAW HIS PLEA.”

       {¶10} Ohio Criminal Rule 32.1 governs motions to withdraw pleas, and reads:

       {¶11} “A motion to withdraw a plea of guilty or no contest may be made only

before sentence is imposed; but to correct manifest injustice the court after sentence

may set aside the judgment of conviction and permit the defendant to withdraw his or

her plea.”

       {¶12} Appellant argues the trial court erred in denying his motion to withdraw his

plea of guilty to the charge of escape because his conviction of escape was based upon

“detention” which resulted from a void sentence.      Specifically, Appellant argues the

Adult Parole Authority was without authority to enforce his post-release control as the

same arose from a void sentence because the imposing court failed to properly impose

a mandatory five year term of post release control.

       {¶13} Ohio law states that portion of a sentence which does not include the

statutorily mandated terms of post-release control is void. State v. Fischer 2010-Ohio-

6238. Here, Appellant was not properly advised of the terms of post-release control

when he was sentenced on the aggravated burglary and domestic violence charges;

therefore, that part of his sentence imposing post control release is void. Because

Appellant had already served the prison term of the sentence, he could not then be

resentenced to properly impose the correct terms of post-release control.       State v.

Bezak 114 Ohio St.3d 94, 2007 Ohio 3250. Nevertheless Appellant plead guilty to the

escape charge based upon the improperly imposed post release control. The trial court

properly imposed sentence on the escape charge.
Stark County, Case No. 2010CA00292                                                      5


      {¶14} The issue becomes whether Appellant’s conviction for escape is void

because it was based on a void post release control order. We hold it is not.

      {¶15} In a analogous situation in State v. Huber, 2010-Ohio-5598, the Eighth

District addressed the issue as to whether a void sentence could lawfully serve as a

predicate to a repeat violent offender specification, where, as here, the sentence had

already been served and could not be corrected. The court held,

      {¶16} “A review of the record reveals that appellant was not advised of

postrelease control when he was sentenced in CR-407661, and thus the sentence in

that case is void. State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961,

¶ 16. A void sentence is a legal nullity and should be treated as if it never occurred.

State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 25.

Because a conviction encompasses both a finding of guilt and imposition of a sentence,

appellant argues that there was no valid conviction in CR-407661, and therefore CR-

407661 could not precipitate a repeat violent offender specification.

      {¶17} “In Bezak, the defendant was not properly notified of postrelease control

when his sentence was imposed, and thus his sentence was void. Id. at ¶ 16. Because

the defendant in Bezak had already served his sentence, the Court held that he could

not be resentenced and postrelease control could not be imposed. Id. at ¶ 18. Appellant

relies on this outcome to argue that his sentence cannot be corrected and will remain

void; therefore, it is to be ignored and cannot serve as the basis for a repeat violent

offender specification. We find that appellant is construing the holdings in Bezak and its

progeny too narrowly.
Stark County, Case No. 2010CA00292                                                      6


       {¶18} “‘As a court of law, we must be careful to avoid obtaining results that are

absurd or unreasonable whenever possible.’ State v. Biondo, Portage App. No.2009-P-

0009, 2009-Ohio-7005, ¶ 45. As in the instant case, the defendant in Biondo had

already served his sentence when the court realized that the sentence was void. Biondo

sought to avoid his obligation to pay mandatory fines and costs by arguing that the void

sentence was a legal nullity. The court in Biondo rejected this argument and held that

‘[t]owards this end, the order set forth in Bezak implies that a conviction (guilt plus

sentence) can withstand a court's determination that a felon was not provided adequate

statutory notice of post-release control. Such a conclusion can only be drawn by

treating, at the very least, the completion of a term of imprisonment (following a valid

finding of guilt), as sufficient to meet the definition of a sentence under the unique

circumstances created by the facts in Bezak and, by implication, the facts of the case

sub judice.’ Biondo at ¶ 48.

       {¶19} “In Bezak, the court noted that, although a sentence imposed without the

defendant being advised of postrelease control is ordinarily void, Bezak could not be

resentenced because he had already completed his term of imprisonment. Bezak at ¶

18. It is noteworthy, however, that the court in Bezak did not vacate the conviction, but

merely remanded the case to the trial court with instructions to note on the record that

Bezak had completed his sentence and would not be subject to resentencing. Id. As

noted in Biondo, this holding “has odd conceptual implications: Bezak's sentence was

void and therefore a legal nullity because he was not properly notified of the possibility

of post-release control; however, the court made a point to emphasize that he had

already served his sentence. This begs the question: How can one have served a
Stark County, Case No. 2010CA00292                                                      7


sentence that does not exist? Much like a Zen Koan, such a paradox cannot be

resolved by deductively following the concepts which created the entanglement, but

must be dissolved by following a different course.” (Emphasis in original.) Biondo at ¶

47.

      {¶20} “Numerous complications have resulted from the holdings in Bezak and its

progeny. It is illogical to presume, however, that the Ohio Supreme Court intended

Bezak to stand for the proposition that an unchallenged sentence that is technically

“void” due to an improper postrelease control advisement cannot then serve as the

basis for a repeat violent offender specification, especially in a case such as this where

the offender has already completed his prison sentence.”

      {¶21} Because we find Appellant’s conviction for escape is not void, res judicata

applies based upon Appellant’s failure to directly appeal his escape conviction and this

Court’s prior opinion affirming the trial court’s subsequent denial of his motion to

suspend further execution of sentence.

      {¶22} We find Appellant’s conviction on the escape charge and subsequent

sentence do not constitute a manifest injustice under the circumstances of this case.

Accordingly, the sole assignment of error is overruled.
Stark County, Case No. 2010CA00292                                                8


      {¶23} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur

                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ W. Scott Gwin _____________________
                                         HON. W. SCOTT GWIN


                                         s/ Patricia A. Delaney _________________
                                         HON. PATRICIA A. DELANEY
Stark County, Case No. 2010CA00292                                                9


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


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
DONALD BILLITER                           :
                                          :
       Defendant-Appellant                :        Case No. 2010CA00292


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is affirmed. Costs to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY
