[Cite as State v. Wolfe, 2016-Ohio-5607.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 16-CA-21
DAVID A. WOLFE

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Licking County Court of
                                               Common Pleas, Case No. 2013CR00327




JUDGMENT:                                      Reversed and Vacated




DATE OF JUDGMENT ENTRY:                        August 22, 2016



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

KENNETH W. OSWALT                              ERIC M. HEDRICK
Licking County Proseuctor                      Assistant State Public Defender
CHRISTOPHER REAMER                             250 East Broad Street, Suite 1400
Assistant Prosecutor                           Columbus, Ohio 43215
20 S. Second Street
Newark, Ohio 43055
Licking County, Case No. 16-CA-21                                                             2

Hoffman, J.

       {¶1}   Defendant-appellant David A. Wolfe appeals the March 8, 2016 Judgment

Entry entered by the Licking County Court of Common Pleas, which denied his motion to

vacate his judicial-sanction sentence. Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE CASE AND FACTS

       {¶2}   On December 7, 2009, Appellant was sentenced to an aggregate 21 month

term of incarceration for various offenses, including one count of robbery, in violation of

R.C. 2911.02(A)(3), a third degree felony, in Licking County Court of Common Pleas Case

No. 09 CR 508. As part of his sentence, the trial court imposed a three year period of

post-release control.

       {¶3}   On March 2, 2010, Appellant was sentenced to a term of incarceration of

11 months for possession of crack cocaine, a felony of the fifth degree, in Licking County

Court of Common Pleas Case No. 09 CR 435. The trial court ordered the sentence in

Case No. 09 CR 435 to be served consecutively to the sentence in Case No. 09 CR 508.

The sentencing entry in Case No. 09 CR 435 advised Appellant he would be subject to a

three year period of post-release control.

       {¶4}   Appellant completed his prison sentences in both cases and was released

from prison on May 11, 2012. Appellant was then placed on three years of post-release

control.

       {¶5}   On June 6, 2013, the Licking County grand jury indicted Appellant in Licking

County Court of Common Pleas Case No. 13 CR 327, on two misdemeanor traffic

offenses as well as failure to comply with the order or signal of a police officer, in violation

of R.C. 2912.33(B)(C)(5)(a)(ii), a felony of the third degree. The state subsequently filed
Licking County, Case No. 16-CA-21                                                         3


a notice with the trial court, advising Appellant was subject to sentence enhancement for

a violation of his post-release control. Attached to the notice was a document prepared

by the Ohio Department of Rehabilitation and Corrections, which indicated Appellant was

subject to three years of his post-release control for his robbery conviction in Case No.

09 CR 508.

       {¶6}   Appellant executed an admission of guilt form to the charges in Case No.

13CR327 on August 7, 2013. The form included language informing Appellant if he was

presently on felony probation or parole his plea to the charge could result in an additional

consecutive sentence. Appellant sent a letter to the trial court on August 20, 2013,

requesting the trial court view a videotape related to the case. In his letter, Appellant

stated, “[t]he prosecutor told my lawyer he was going to give me two years and two years

P.R.C. ***”. The trial court treated the letter as a motion to withdraw his guilty plea and

set the matter for hearing on September 18, 2013, the date on which the trial court had

originally scheduled sentencing.

       {¶7}   On September 18, 2013, Appellant appeared before the trial court and

withdrew his motion to withdraw his guilty plea. The trial court found Appellant guilty as

charged and sentenced him to an aggregate term of imprisonment of two years, and

ordered the sentence to be served consecutive to Appellant’s period of post-release

control, 599 days. Appellant did not file an appeal from the sentence.

       {¶8}   On October 19, 2015, Appellant filed a motion to vacate the 599 day judicial-

sanction sentence, arguing the language employed by the trial court in the 2009

sentencing entries in Case No. 09 CR 508 and 09 CR 435 was deficient, rendering his

post-release control sanctions therein void.     The state filed a memorandum contra,
Licking County, Case No. 16-CA-21                                                        4


arguing the language in the 2009 sentencing entries provided Appellant with adequate

notice regarding post-release control; therefore, the sanctions were not void and

Appellant should have raised any challenge thereto on direct appeal.

       {¶9}   Via Judgment Entry filed March 8, 2016, the trial court denied Appellant’s

motion to vacate. It is from this judgment entry Appellant appeals, raising as his sole

assignment of error:

       {¶10} “I. THE TRIAL COURT ERRED BY DENYING MR. WOLFE’S MOTION TO

VACATE HIS VOID JUDICIAL-SANCTION SENTENCE.                    R.C. 2929.19(B)(2); R.C.

2967.28. (MOT. TO VACATE JUDICIAL-SANCTION SENTENCE, OCT. 19, 2015, EX. A-

E.)”

       {¶11} This case has been assigned to the Court's accelerated calendar docket

according to Ohio App.R. 11 and this Court's Loc.R. 6(B); therefore, pursuant to Ohio

App.R. 11 governing accelerated calendar cases, “It shall be sufficient compliance with

App.R. 12(A) for the statement of the reason for the court's decision as to each error to

be in brief conclusionary form.”



       {¶12} R.C. 2929.19(B)(2)(e) provides, at the sentencing hearing, the trial court

must notify the offender if a period of supervision is imposed following his or her release

from prison, and if the offender violates that supervision, then the parole board may

impose a prison term of up to one-half of the prison term originally imposed on the

offender. The trial court must notify the offender of the mandatory nature of the term of

post-release control and the length of that mandatory term. State v. Bloomer, 122 Ohio

St.3d 200, 2009–Ohio–2462, 909 N.E.2d 1254, ¶ 69. The trial court must also include
Licking County, Case No. 16-CA-21                                                         5

this notice in the sentencing entry. State v. Singleton, 124 Ohio St.3d 173, 2009–Ohio–

6434, 920 N.E. 2d 958, ¶ 11, 22.

       {¶13} In State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, the Ohio Supreme

Court held, in pertinent part, “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.”

Id., at paragraph one of the syllabus. See, also, State v. Jordan, 104 Ohio St.3d 21, 2004–

Ohio–6085. In light of this voidness doctrine, where a prior sentence does not include a

statutorily mandated term of post-release control in the sentencing entry, the trial court

cannot order the remaining PRC time imposed upon a new violation and sentence. See

State v. Murphy, 5th Dist. Muskingum No. CT2013–0028, 2014–Ohio–323, ¶ 7.

       {¶14} In its December 7, 2009 Judgment Entry in Case No. 09 CR 508, the trial

court stated:

                The Court informed the defendant that upon release from prison he

       would be subject to postrelease control for 3 years unless sooner

       terminated by the Adult Parole Authority. The Court further notified the

       defendant that if he violates the conditions of postrelease control imposed

       by the Parole Board under Ohio Revised Code Section 2967.28, he could

       be returned to prison for up to nine months for those violations, and if the

       violation is a new felony, he could be returned to prison on the new felony

       as well. Id. at 2, unpaginated.

       {¶15} In its March 2, 2010 Judgment Entry in Case No. 09 CR 435, the trial court

stated:
Licking County, Case No. 16-CA-21                                                         6


              The Court sentences the defendant to a period of three (3) years of

       post-release control following any prison sentence imposed, and further the

       consequences for violating conditions of post-release control imposed by

       the Parole Board under Ohio Revised Code Section 2967.28, being the

       defendant is subject to being reincarcerated for a period of up to nine

       months, with a maximum for repeated violations of 50% of the stated prison

       term. If the violation is a new felony, the defendant may be returned to

       prison for the remaining period of control or 12 months, whichever is

       greater, plus receive a prison term for the new crime. Id. at 2, unpaginated.

       {¶16} We find the trial court did not properly impose post-release control in Case

No. 09 CR 508. The sentencing entry therein states, if Appellant violated the terms of his

post-release control, “he could be returned to prison for up to nine months for those

violations”. This statement is erroneous. In actuality, if Appellant violated the conditions

of his post-release control, “the parole board may impose a prison term of up to one-half

of the prison term originally imposed”, i.e., one-half of twenty-one months. Further, the

trial court did not expressly advise Appellant post-release control was mandatory.

       {¶17} Likewise, the trial court did not properly impose post-release control in Case

No. 09 CR 435. The sentencing entry therein sentenced Appellant to a mandatory period

of post-release control of three years. Because Appellant was convicted of a fourth-

degree felony, he was only subject to a discretionary period of post-release control. R.C.

2967.28(C).

       {¶18} We conclude the trial court’s imposition of post-release control in the 2009

cases was void. Because Appellant has already completed the stated prison terms for the
Licking County, Case No. 16-CA-21                                                     7


2009 convictions, the trial court no longer has the authority to correct the improper

language. State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462; State v. McCall, 5th

Dist. No. CT 2013-0014, 2013-Ohio-2653. Therefore, the imposition of post-release

control remains void, as if such had never been imposed. Accordingly, the trial court

could not impose post-release control sanctions based upon the 2009 convictions in Case

No. 13 CR 327.

       {¶19} Appellant's sole assignment of error is sustained.

       {¶20} The judgment of the Licking County Court of Common Pleas is reversed

and the 599 day judicial sanction sentence Appellant received for violating post-release

control is vacated.

By: Hoffman, J.

Farmer, P.J. and

Delaney, J. concur
