[Cite as State v. Saturday, 2017-Ohio-4274.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      28372

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
NICHOLAS A. SATURDAY                                 COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 2014-05-1430

                                 DECISION AND JOURNAL ENTRY

Dated: June 14, 2017



        TEODOSIO, Judge.

        {¶1}     Appellant, Nicholas A. Saturday, appeals from an order denying his motion to

vacate judicial sanction sentence by the Summit County Court of Common Pleas. This Court

affirms.

                                                I.

        {¶2}     The Ashtabula Court of Common Pleas sentenced Mr. Saturday to prison for

unlawful sexual conduct with a minor. It is unclear from the record if he appealed. Upon his

release from prison, Mr. Saturday was placed on five years of mandatory post-release control.

        {¶3}     While on post-release control, Mr. Saturday was convicted in the Summit County

Court of Common Pleas of identity fraud against a disabled person and telecommunications

harassment. He was sentenced to two years in prison for identity fraud to be served concurrently

with 180 days in jail for telecommunications harassment. He also received an additional,

consecutive judicial sanction sentence of 1,215 days in prison for violating his Ashtabula County
                                                2


post-release control. Mr. Saturday appealed to this Court and the matter was reversed and

remanded for the limited purpose of allowing him the opportunity to seek a waiver of court costs.

State v. Saturday, 9th Dist. Summit No. 27521, 2015-Ohio-2136, ¶ 8-9. The State does not

dispute that Mr. Saturday has since served his sentences for identity fraud against a disabled

person and telecommunications harassment, and he is currently incarcerated solely on the 1,215-

day judicial sanction sentence.

         {¶4}   Mr. Saturday filed a motion to vacate judicial sanction sentence in his Summit

County case claiming that post-release control was improperly ordered in his Ashtabula County

case and, thus, his Ashtabula County post-release control and his Summit County judicial

sanction sentence were both void. The trial court denied the motion (1) as an untimely petition

for post-conviction relief, and alternatively (2) because Mr. Saturday was notified of the

consequences for violating post-release control in a “Notice (Prison Imposed)” form that was

incorporated into his Ashtabula County sentencing entry and signed by both Mr. Saturday and

his attorney.

         {¶5}   Mr. Saturday now appeals from the trial court’s order denying his motion to

vacate judicial sanction sentence and raises two assignments of error for this Court’s review.

         {¶6}   For ease of analysis, we rearrange and consolidate Mr. Saturday’s assignments of

error.

                                                II.

                              ASSIGNMENT OF ERROR TWO

         THE TRIAL COURT ERRED WHEN IT DENIED NICHOLAS SATURDAY’S
         MOTION TO VACATE HIS VOID JUDICIAL[ ]SANCTION SENTENCE
         BASED ON POST[-]RELEASE CONTROL FROM ASHTABULA COUNTY
         CASE NO. 12-CR-035 WHEN THE SENTENCING ENTRY OMITTED THE
         POTENTIAL CONSEQUENCES OF POST[-]RELEASE CONTROL
         VIOLATIONS. []
                                                 3



                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED WHEN IT DENIED NICHOLAS SATURDAY’S
       MOTION TO VACATE HIS VOID JUDICIAL SANCTION SENTENCE AS AN
       UNTIMELY PETITION FOR POST[-]CONVICTION RELIEF. []

       {¶7}    In his second assignment of error, Mr. Saturday argues that the Summit County

Court of Common Pleas erred in denying his motion because his Ashtabula County post-release

control and his Summit County judicial sanction sentence are both void. In his first assignment

of error, Mr. Saturday argues that the trial court erred in denying his motion as an untimely

petition for post-conviction relief. We disagree with both propositions.

                Voidness of Post-Release Control and Judicial Sanction Sentence

       {¶8}    Mr. Saturday argues that his Ashtabula County post-release control and Summit

County judicial sanction sentence are both void. 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.       “When a judge fails to properly impose statutorily

mandated post[-]release control as part of a defendant’s sentence, the post[-]release[ ]control

sanction is void.” State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, paragraph two of the

syllabus.

       {¶9}    Mr. Saturday argues that the sentencing entry in his Ashtabula County case did

not properly notify him of the consequences of violating the conditions of post-release control

and, therefore, his post-release control in that case is void. The Supreme Court of Ohio has

stated that “a trial court must provide statutorily compliant notification to a defendant regarding

post[-]release control at the time of sentencing, including notifying the defendant of the details of
                                                 4


the post[-]release control and the consequences of violating post[-]release control.” State v.

Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶ 18. The trial court “must incorporate into its

sentencing entry the notifications it provides to the offender relating to post[-]release control at

the sentencing hearing[,] but [] it need not repeat those notifications verbatim in the entry.” State

v. Grimes, 2017-Ohio-2927, ¶ 13. “[T]o validly impose post[-]release control, a minimally

compliant entry must provide the [Adult Parole Authority] the information it needs to execute the

post[-]release[ ]control portion of the sentence.” Id. The main focus is on the notification itself,

not the sentencing entry. Qualls at ¶ 19.

       {¶10} Mr. Saturday further argues that since he has already served his prison sentence

for the Ashtabula County case, he cannot be resentenced and properly advised of post-release

control in that case. “A trial court does not have the authority to resentence a defendant for the

purpose of adding a term of post[-]release control as a sanction for a particular offense after the

defendant has already served the prison term for that offense.” Holdcroft at paragraph three of

the syllabus.

       {¶11} Therefore, Mr. Saturday ultimately argues that his judicial sanction sentence in

his Summit County case is based on void post-release control and should be vacated as void.

The Supreme Court of Ohio has held that “an appellate court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence that the record does

not support the trial court’s findings under relevant statutes or that the sentence is otherwise

contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; see also R.C.

2953.08(G)(2). “Clear and convincing evidence is that measure or degree of proof which will

produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to

be established.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954).
                                                5


       {¶12} Mr. Saturday attached a copy of the Ashtabula County sentencing entry to his

motion filed in his Summit County case, which states “[i]n addition[,] the offender will be

subject to a period of five (5) years, of Post[-]Release Control, pursuant to R.C. 2929.14(F) and

R.C. 2967.28, after the offender is released from prison.”         The entry does not list the

consequences for violating the terms and conditions of post-release control, but it does state “IT

IS FURTHER ORDERED that the Prison Imposed Notice Form, which is attached hereto and

which was signed by the defendant and counsel on the record, is incorporated herein and made a

part thereof.”   (Emphasis sic.)   Mr. Saturday also attached a copy of the “Notice (Prison

Imposed)” form to his motion, which states the consequences for violating the terms and

conditions of post-release control. The time stamps on both the sentencing entry and the “Notice

(Prison Imposed)” form indicate that they were filed contemporaneously with one another on

June 25, 2012, at 8:32 A.M.

       {¶13} Although Mr. Saturday concedes that the “Notice (Prison Imposed)” form lists the

consequences for violating post-release control, he argues that the form is nonetheless a separate

document from his sentencing entry. “As a general matter, ‘[o]nly one document can constitute

a final appealable order,’ meaning that a single entry must satisfy the requirements of Crim.R.

32(C).” State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, ¶ 48, quoting State v. Baker, 119

Ohio St.3d 197, 2008-Ohio-3330, ¶ 17.

       {¶14} Mr. Saturday has not claimed that he has already successfully challenged his post-

release control as void in the Ashtabula County Court of Common Pleas.                Instead, he

acknowledges in his reply brief that “[i]n order to determine whether the judicial[ ]sanction

sentence imposed by Summit County is void, this Court will necessarily have to review the

Ashtabula County Court of Common Pleas’ judgment entry to see if it meets the requirements
                                                 6


for imposing post[-]release control.” Thus, Mr. Saturday’s arguments are wholly dependent

upon this Court making an initial determination that the post-release control ordered in his

Ashtabula County case is in fact void.

       {¶15} However, this Court does not have jurisdiction to review a judgment entered by

the Ashtabula County Court of Common Pleas. See State v. Shepherd, 9th Dist. Summit No.

26748, 2014-Ohio-686, ¶ 11; compare State v. Smith, 11th Dist. Lake No. 2010-L-070, 2011-

Ohio-1014, ¶ 16 (stating the Eleventh District Court of Appeals “does not have jurisdiction to

review a judgment entered by the Cuyahoga County Court of Common Pleas” and determine

voidness). Article IV, Section 3(B)(2), of the Ohio Constitution states, in part, that “[c]ourts of

appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or

reverse judgments or final orders of the courts of record inferior to the court of appeals within the

district * * *.” (Emphasis added.); see also R.C. 2501.02. The only counties within this Court’s

jurisdiction are Lorain, Medina, Wayne, and Summit. R.C. 2501.01(I). Ashtabula County is

within the jurisdiction of the Eleventh District Court of Appeals. R.C. 2501.01(K).

       {¶16} Mr. Saturday urges this Court to follow persuasive authority from the Fourth

District Court of Appeals under State v. Romine, 4th Dist. Pickaway No. 16CA1, 2016-Ohio-

5308. We decline to do so, as Romine is distinguishable from the case sub judice. In Romine,

the Court disagreed with the trial court’s decision to not analyze another county’s entry based on

a lack of jurisdiction. Id. at ¶ 8. The Romine Court relied on its own prior decision in State v.

Burns where it concluded that Fischer provided the Court with the authority to cure an error in

sentencing that occurred in another county despite the fact that to do so necessitated review of

another county’s sentencing entry. Id., citing State v. Burns, 4th Dist. Highland No. 11CA19,

2012-Ohio-1626, ¶ 12. The Burns Court stated:
                                                 7


       [W]e 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.

Burns at ¶ 12. In Burns, however, the other county’s common pleas court had already held a

hearing and acknowledged that sufficient post-release control language was not stated in its

sentencing entry. Id. at ¶ 6. The trial court’s entry erroneously ordered “up to 5 years” post-

release control, a term that does not exist under Ohio law. Id. at ¶ 5; R.C. 2967.28(B) and (C).

       {¶17} In the case sub judice, there is nothing in the record stating that the Ashtabula

County Court of Common Pleas has held a hearing or determined that Mr. Saturday’s post-

release control is in fact void. Consequently, we are not persuaded that Romine or Burns are

applicable here. We conclude that appellate jurisdiction over Mr. Saturday’s sentence in the

Ashtabula County case, including the authority to determine whether post-release control is

actually void, simply does not rest in this Court. See Smith at ¶ 21.

                     Reclassification as a Petition for Post-Conviction Relief

       {¶18} Mr. Saturday also argues that the trial court should not have reclassified his

motion as a petition for post-conviction relief. In support of his argument, he relies on this

Court’s decision in State v. Holcomb, 184 Ohio App.3d 577, 2009-Ohio-3187 (9th Dist.). In

Holcomb, this Court adopted the approach suggested in State v. Boswell, 121 Ohio St.3d 575,

2009-Ohio-1577, ¶ 9 (stating “A motion to withdraw a plea of guilty or no contest made by a

defendant who has been given a void sentence must [] be considered as a presentence motion

under Crim.R. 32.1.”). Holcomb at ¶ 20. In Holcomb, we concluded:

       [A] defendant may request resentencing because of a trial court’s failure to
       properly include post[-]release control in a sentencing entry by filing a motion for
       resentencing. The trial court should not reclassify the motion or request as a
       petition for post[-]conviction relief. To the extent that this [C]ourt’s decisions,
       under these specific circumstances, require a trial court to reclassify a motion for
                                                 8


       resentencing as a petition for post[-]conviction relief, * * * or as a motion for
       relief from judgment under Civ.R. 60(B)(5), * * * those decisions should not be
       followed. If a sentence is void for failure to include proper post[-]release[
       ]control notification, the trial court—or the reviewing court—has an obligation to
       recognize the void sentence, vacate it, and order resentencing. * * * Further, a
       trial court, confronted with an untimely or successive petition for post[-
       ]conviction relief that challenges a sentence that is void, must ignore the
       procedural irregularities of the petition and vacate the void sentence and
       resentence the defendant.

Id.   However, Mr. Saturday’s reliance on Holcomb is misplaced.             In Holcomb, we were

reviewing an order from the Summit County Court of Common Pleas, not an order from a trial

court in another appellate district’s jurisdiction, as Mr. Saturday urges us to do here. See id. at ¶

22. We have already concluded above that we decline to overstep the bounds of this Court’s

jurisdiction and review judgment entries from other jurisdictions to determine voidness.

Furthermore, Mr. Holcomb was never advised of post-release control at all in his case, so there

could be no question that his post-release control was void. See id. at ¶ 21. Again, there is

nothing in the record before us to show that Mr. Saturday’s Ashtabula County post-release

control has ever been found void by a court with jurisdiction to make such a finding.

       {¶19} Less than two years after Holcomb, we disagreed with an argument before us that

a trial court erred in construing a revised motion to vacate a void judgment as a petition for post-

conviction relief. State v. Childs, 9th Dist. Summit No. 25448, 2011-Ohio-913, ¶ 10, ¶ 12. Mr.

Childs relied on this Court’s post-release control case law, including Holcomb, and argued that

his claims were not untimely and he could raise his arguments, regardless of procedural

formalities, because his judgment was void. Id. at ¶ 12. We stated: “Apart from the fact that

much of this Court’s post-release control precedent has been largely eviscerated by [Fischer], we

are not convinced that R.C. 2953.23(A)’s requirements and res judicata are inapplicable here.”
                                                 9


Id. “As such, we are unwilling to extend any pre-Fischer law and conclude that Childs’ petition

was immune from procedural formalities and substantive rules of law, such as res judicata.” Id.

       {¶20} Because there is no evidence that Mr. Saturday’s Ashtabula County post-release

control has ever been found to be void, we conclude that the Summit County Court of Common

Pleas did not err when it reclassified his motion to vacate judicial sanction sentence as a petition

for post-conviction relief. See State v. Robinson, 9th Dist. Summit No. 27663, 2015-Ohio-3329,

¶ 5.

       {¶21} Generally, “[w]e review a trial court’s decision denying a petition for post-

conviction relief under an abuse of discretion standard.” State v. Daniel, 9th Dist. Summit No.

26670, 2013-Ohio-3510, ¶ 7. Our standard of review is de novo, however, when the trial court

denies a petition solely on the basis of an issue of law. Childs at ¶ 9. “Whether a defendant’s

post-conviction relief petition satisfied the procedural requirements set forth in R.C. 2953.21 and

R.C. 2953.23 is an issue of law.” Id. Here, the trial court denied Mr. Saturday’s motion as an

untimely petition for post-conviction relief because the court had “no authority to proceed on the

merits.” Therefore, a de novo standard of review applies. See id.

       {¶22} R.C. 2953.21(A)(2) provides:

       [A petition for post-conviction relief] shall be filed no later than three hundred
       sixty-five days after the date on which the trial transcript is filed in the court of
       appeals in the direct appeal of the judgment of conviction or adjudication or, if the
       direct appeal involves a sentence of death, the date on which the trial transcript is
       filed in the supreme court.

A court may not entertain successive or untimely petitions unless the petitioner satisfies certain

requirements. He must show that he was unavoidably prevented from discovering the facts he

relies on or that, subsequent to the R.C. 2953.21(A)(2) deadline, the United States Supreme

Court recognized a new federal or state right that applies retroactively to persons in his situation,
                                                10


and the petition asserts a claim based on that right. R.C. 2953.23(A)(1)(a). He must further

show “by clear and convincing evidence that, but for constitutional error at trial, no reasonable

factfinder would have found the petitioner guilty of the offense of which [he] was convicted” or,

“if the claim challenges a sentence of death that, but for constitutional error at the sentencing

hearing, no reasonable factfinder would have found the petitioner eligible for the death

sentence.” R.C. 2953.23(A)(1)(b).

       {¶23} Mr. Saturday appealed his sentence in his Summit County case and the transcript

was filed in this Court on December 3, 2014. He filed his motion to vacate judicial sanction

sentence in the trial court on June 6, 2016, which is beyond the timeframe provided for in R.C.

2953.21(A)(2). Mr. Saturday has failed to satisfy the requirements under R.C. 2953.23(A)(1) for

the trial court to entertain his untimely petition. Therefore, we conclude that the trial court did

not have statutory authority to consider the merits of the motion and correctly denied it. See

State v. Russell, 9th Dist. Summit No. 28206, 2017-Ohio-723, ¶ 5.

       {¶24} Mr. Saturday’s first and second assignments of error are overruled.

                                               III.

       {¶25} Mr. Saturday’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                11


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



HENSAL, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

KATHERINE ROSS-KINZIE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and TABITHA STEARNS, Assistant
Prosecuting Attorney, for Appellee.
