[Cite as State v. Wells, 2017-Ohio-7763.]



                           STATE OF OHIO, JEFFERSON COUNTY
                                   IN THE COURT OF APPEALS
                                            SEVENTH DISTRICT

STATE OF OHIO                                        )
                                                     )
        PLAINTIFF-APPELLEE                           )
                                                     )            CASE NO. 16 JE 0033
VS.                                                  )
                                                     )                  OPINION
CARL WELLS                                           )
                                                     )
        DEFENDANT-APPELLANT                          )

CHARACTER OF PROCEEDINGS:                            Criminal Appeal from the Court of
                                                     Common Pleas of Jefferson County,
                                                     Ohio
                                                     Case No. 02 CR 125

JUDGMENT:                                            Reversed.

APPEARANCES:
For Plaintiff-Appellee                               Attorney Jane Hanlin
                                                     Jefferson County Prosecutor
                                                     16001 State Route 7
                                                     Steubenville, Ohio 43952

For Defendant-Appellant                              Carl Wells, Pro se
                                                     335 Madison Avenue, #2
                                                     Akron, Ohio 44320

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb


                                                     Dated: September 21, 2017
[Cite as State v. Wells, 2017-Ohio-7763.]
DeGENARO, J.

        {¶1}     Pro se Defendant–Appellant, Carl Wells, appeals the trial court's
judgment denying his motion to vacate or terminate his post-release control
obligations. On appeal, Wells argues the trial court erred by overruling his motion
because post-release control was improperly imposed during his 2002 sentencing,
and therefore that portion of his sentence is void. For the following reasons, Wells'
assignment of error is meritorious. Accordingly, the judgment is reversed and the
case remanded with instructions for the trial court to discharge Wells from post-
release control supervision.
        {¶2}     In 2002, following a guilty plea, Wells was convicted of three counts of
sexual battery, R.C. 2907.03(A)(5), third-degree felonies. The trial court imposed an
aggregate sentence of 12 years in prison. The sentencing entry states that Wells'
prison sentence will be "followed by mandatory post-release control" and that he had
been notified of that sentencing condition. However, the entry does not state the
duration of the post-release control term or whether it is discretionary or mandatory.
Wells did not appeal.
        {¶3}     On June 7, 2014, Wells was released from prison, and the Ohio
Department of Rehabilitation & Correction website indicates he is subject to five
years of post-release control.1
        {¶4}     In 2014 and 2015 Wells filed pro se motions asking the trial court to
vacate his post-release control; the trial court overruled both motions. Wells did not
appeal either judgment. On November 14, 2016, Wells filed a third pro se motion to
vacate or terminate his post-release control. The trial court denied his third motion.
        {¶5}     Wells, still acting pro se, timely appealed the third judgment. Wells'
praecipe indicates that no transcript is required, thus there is no sentencing hearing
transcript contained in the record before us to aid our evaluation of the arguments
raised in Wells' merit brief. The State has not filed an Appellee brief.
                                        Post-release Control
        {¶6}     In his sole assignment of error, Wells asserts:
1
 See http://odrc.drc.ohio.gov/OffenderSearch/details.aspx?id=A434504&pg=x (Last accessed, August
23, 2017).
                                                                                 -2-


              The trial court erred when it denied Defendant[-]Appellant's
       "Motion to Vacate a Partially Void Sentence and Terminate Void
       Imposition of Post Release Control" as the post release control portion
       of the sentence is void as it was improperly journalized and could not
       be corrected as the defendant had been released from prison violating
       the Fifth and Fourteenth Amendments to the United States Constitution.

       {¶7}   Wells argues the trial court was required—but failed—to properly advise
him about post-release control in the judgment entry of sentence. He asserts the trial
court did not notify him of the mandatory nature of the post-release control term or its
length. Additionally, he asserts the court did not notify him that if he violated the
conditions of post-release control the parole board could impose a prison term of up
to one-half of the original prison term. Wells argues the trial court's failure to provide
him with proper notices renders the post-release control portion of his sentence void.
He further argues that because he has completed his prison term, he cannot be
resentenced to correct post-release control errors. Therefore, he asserts the trial
court erred by overruling his motion to vacate his post-release control and release
him from his post-release control obligations.
       {¶8}   Wells was convicted of and sentenced for felony sex offenses in 2002.
Defendants sentenced prior to July 11, 2006, are not subject to the post-release
control correction procedures found in R.C. 2929.191. See State v. Pullen, 7th Dist.
No. 11 MA 10, 2012-Ohio-1498, ¶ 12, citing State v. Singleton, 124 Ohio St.3d 173,
2009-Ohio-6434, 920 N.E.2d 958, at ¶ 23, 27, 32, 35. For defendants sentenced prior
to the effective date of R.C. 2929.191, the procedures for dealing with post-release
control errors have evolved through case law.
       {¶9}   "A trial court must provide proper advice to a defendant regarding
postrelease control at the time of sentencing, including notifying the defendant of the
details of the postrelease control and the consequences of violation." State v. Baird,
7th Dist. No. 15 MA 0155, 2016-Ohio-8211, ¶ 9, citing State v. Qualls, 131 Ohio St.3d
499, 2012–Ohio–1111, 967 N.E.2d 718, ¶ 18. Further, the trial court "must include
                                                                                 -3-


the postrelease control advice in the sentencing entry to reflect the notification it gave
at the sentencing hearing." Baird, at ¶ 9, citing Qualls at ¶ 19.
       {¶10}    " '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.' "
State v. Billiter, 134 Ohio St.3d 103, 2012–Ohio–5144, 980 N.E.2d 960, ¶ 7, quoting
State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332, paragraph
one of the syllabus. However, "[o]nly the offending portion of the sentence [i.e., the
erroneous postrelease control,] is subject to review and correction." Fischer at ¶ 27.
       {¶11}    Accordingly, the fact that Wells failed to file a direct appeal from his
conviction and sentence and the trial court's judgment denying his first two motions to
vacate post-release control, does not bar consideration of the merits of the denial of
his third motion.
       {¶12} Wells' sentencing entry states that his 12-year prison sentence will be
"followed by mandatory post-release control." The entry also notes that Wells "has
been given notice of post release control." The entry does not state the duration of
the post-release control term or whether it is discretionary or mandatory. Pursuant to
the law in effect at that time, as now, Wells' conviction for felony sex offense carried
with it a mandatory five-year term of post-release control. R.C. 2967.28(B)(1), 2002
Ohio Laws File 121 (H.B. 327). Wells has served the entirety of his prison sentence;
he was released from prison in June 2014.
       {¶13} This court dealt with similar facts and arguments on appeal in Baird,
where the appellant was convicted of rape and sentenced in 2004. Baird was
released from prison in 2014, placed on a five-year term of post-release control, and
thereafter filed a motion in the trial court to vacate post-release control and terminate
supervision which the trial court denied. Baird at ¶ 2-4, 6. We noted that Baird did
not take issue with the post-release control advisements the trial court gave at his
sentencing hearing, only with the advisement in the sentencing entry. Id. at ¶ 11:

               As to postrelease control, the judgment entry states only: "The
                                                                               -4-


       Defendant has been given notice under R.C. 2929.13(B)(3) and of
       appellate rights under R.C. 2953.08." At the time of appellant's
       sentencing, R.C. 2929.13(B)(3) contained the required postrelease
       control advisements. Thus, the court's only reference to postrelease
       control in the sentencing entry was to state that it gave appellant the
       notice required by the postrelease control statute.

Baird at ¶ 11.
       {¶14} We reversed the trial court's judgment, reasoning:

                 His sentencing judgment entry does not contain either of the two
       required postrelease control advisements. It does not advise appellant
       of the details of the postrelease control nor does it advise him of the
       consequences of violation. A judgment entry of sentence that includes a
       term of postrelease control must advise the defendant of the details of
       the postrelease control and the consequences of violation. Qualls, 131
       Ohio St.3d at ¶ 18–19; State v. Smith, 9th Dist. No. 15CA010778,
       2016–Ohio–4688, ¶ 7; State v. Duncan 1st Dist. No. C120324, 2013–
       Ohio–381, ¶ 8; [State v.] Bundy, [7th Dist. No. 12 MA 86,] 2013–Ohio–
       2501, ¶ 29–30. And because appellant has already completed his
       prison term, a nunc pro tunc entry is not a proper remedy here.

Baird at ¶ 18.
       {¶15} Here, like in Baird, Wells only attacks the validity of the post-release
control notification in his sentencing entry. As mentioned, Wells failed to order a
sentencing transcript for inclusion in the appellate record; thus, we must presume the
regularity of those proceedings. See State v. Kergan, 7th Dist. No. 11 MA 72, 2012-
Ohio-1407, ¶ 14, citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400
N.E.2d 384 (1980). However, even assuming he was properly notified during the
hearing, the sentencing entry contains a clear error in that the duration of the post-
                                                                              -5-


release control term is not specified. Pursuant to Baird, and the cases upon which it
relies, the fact that Wells has fully served his prison sentence in this case precludes
the correction of this post-release control error. Instead, an order of the trial court
discharging Wells from post-release control supervision is the proper remedy. Bundy,
2013–Ohio–2501, ¶ 32.
       {¶16} Accordingly, Wells' sole assignment of error is meritorious; the
judgment of the trial court is reversed; and the case is remanded with instructions for
the trial court to discharge Wells from post-release control supervision.

Donofrio, J., concurs.

Robb, P. J., concurs.
