[Cite as State v. Hutter, 2018-Ohio-3488.]



             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  MAHONING COUNTY

                                             STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                        RAYMOND HUTTER,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                             Case No. 17 MA 0152


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                    Case No. 06 CR 305

                                          BEFORE:
                  Kathleen Bartlett, Gene Donofrio, Carol Ann Robb, Judges.


                                    JUDGMENT:
                      REVERSED; POSTRELEASE CONTROL VACATED


Atty. Ralph Rivera, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503 for
Appellee and

Atty. Attorney Edward Czopur, 42 North Phelps Street, Youngstown, Ohio 44503, for
Appellant.



                                        Dated: August 29, 2018
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BARTLETT, J.

      {¶1}   Defendant-Appellant, Raymond Hutter, appeals the September 27, 2017
decision of the Mahoning County Court of Common Pleas denying his Motion to Vacate
Postrelease Control.
      {¶2}   For the following reasons, Appellant’s sole assignment of error has merit.
Appellant was improperly notified of postrelease control, and he has completed his
original term of imprisonment. Accordingly, the portion of the sentencing entry imposing
postrelease control against Appellant is vacated.
                        FACTS AND PROCEDURAL HISTORY
      {¶3}   Appellant was indicted for two counts of rape, in violation of Revised Code
Section 2907.02 (A)(1)(b)(B), two counts of gross sexual imposition, in violation of
Revised Code Section 2907.05(A)(4)(B), and two counts of disseminating matter
harmful to juveniles, in violation of Revised Code Section 2907.31(A)(1)(F). Pursuant to
a plea agreement, counts one and two were amended to rape, in violation of
2907.02(A)(1)(b), both felonies of the first degree, and the remaining counts were
dismissed.
      {¶4}   On September 23, 2008 Appellant executed a Plea of Guilty form and
appeared at his Change of Plea Hearing before the trial court. The Plea of Guilty form
dated September 23, 2008, states the following with regard to postrelease control:

      If the court imposes a prison sanction, I may be subject to a period of
      supervision known as post-release control (PRC) following release. The
      control period may be a maximum of five years. A violation of any PRC
      rule or condition can result in a more restrictive sanction while released,
      an increased duration of PRC up to the maximum set out above and/or re-
      imprisonment which can be imposed in segments of thirty, sixty, or ninety
      days up to nine months. But the time cannot exceed a maximum of one-
      half of the total term imposed for all the offenses set out above.      If I
      commit another felony while under PRC, I may be subject to an additional
      prison term consisting of the maximum period of unserved time remaining



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       on PRC or twelve (12) months, whichever is greater. This prison term
       must be served consecutively to any term imposed for the new felony
       following conviction.

(9/23/08 Plea of Guilty at 4-5).
       {¶5}   Appellant entered guilty pleas to two counts of rape, each being a felony
of the first degree. (9/23/08 Tr. 9). The trial court advised Appellant of mandatory
postrelease control at that Change of Plea hearing:

       The Court:     Prison is presumed, and if the Court that sentences you
       imposes a prison sanction, you may be subject to a period of post-release
       control following your release.    Well, he will be.   It’s five years.   It’s
       mandatory?

       Mr. Zena: Yes.

       The Court:      If you violate the post-release control, the terms and
       conditions set by the Adult Parole Authority, you can be sent back for nine
       months. They can accumulate these nine month periods of sentence up
       to one half of your original sentence. Do you understand that?

       The Defendant: Yes, Your Honor.

       The Court: Okay. If you are convicted of another felony while on post-
       release control, in addition to the sentence for the new felony, you can be
       sent back on these charges for one year or whatever is remaining on your
       post-release control, whichever is longer. Do you understand that?

       The Defendant: Yes, Your Honor.

       Mr. Zena: Your Honor, I’m going to interrupt. You were correct. This is
       the compelling section, so it is mandatory also.

       The Court: That’s what I thought.




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       Mr. Zena: I’m sorry, you’re right, Your Honor. I was not thinking properly.
       This is under –

       Ms. Frenchko: I was going to say.

       The Court: As long as you know it’s mandatory prison.

       Mr. Zena: He understands that probation or community control is not an
       option.

(9/23/08 Tr. 7-8).
       {¶6}   At the sentencing hearing held on February 5, 2009, Appellant was
sentenced to ten (10) years on each count, with those sentences running concurrently,
for a total term of ten (10) years. (2/5/09 Tr. 10).   At the hearing, the trial court stated:

       In addition, thereto, I have an obligation to advise you that upon your
       completion of your jail sentence, your prison sentence you would then be
       subject to postrelease control for – in this case it will be anywhere from
       three to five years.

(2/5/09 Tr. at 11).
       {¶7}   The trial court’s entry addressed postrelease control, in pertinent part:

       In addition, as part of this sentence, post release control shall be imposed
       up to a maximum period of five (5) years. Any violation of post release
       control could result in the Defendant being returned to prison for a period
       of up to nine (9) months, with a maximum period for repeated violations
       that could equal up to fifty (50) percent of the stated term. If the violation
       is a new felony the Defendant may be returned to prison for the remaining
       period of post release control, or twelve (12) months, whichever is greater,
       in addition to receiving a consecutive prison term for the new felony
       offense.

(2/11/09 JE at 2).
       {¶8}   Appellant subsequently completed his prison terms and was released on


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July 9, 2016, subject to postrelease control supervision.
       {¶9}     Appellant filed his Motion to Vacate Postrelease Control on July 12, 2017.
On September 27, 2017, the trial court overruled that motion, stating that the Court
“properly advised [Appellant] of the fact that he would be subject to a mandatory Post
Release Control prison sanction.” (9/27/17 JE). The trial court further stated that the
Court “placed on the record the elements of Post Release Control that applied to
[Appellant] and thus satisfied the standard set in State v. Grimes, 2017-Ohio-2927”.
(9/27/17 JE).
       {¶10} Appellant filed the instant appeal.
                                   Assignment of Error

       Appellant argues the trial court failed to properly impose postrelease
       control at the time of sentencing which voids that portion of Appellant’s
       sentence.

       {¶11} Appellant argues that the use of the term “up to” in the sentencing
judgment entry in this case is similar to the language criticized in State v. Williams, 7th
Dist. No. 09 BE 11, 2010-Ohio-2702, and is an insufficient imposition of postrelease
control. Appellee argues that the trial court properly notified Appellant at the sentencing
hearing, and properly incorporated the necessary notifications into the sentencing entry.
       {¶12} 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. Fischer, 942 N.E.2d 332, 2010-Ohio-6238, 128 Ohio St.3d 92, ¶ 1. In Ohio, the
notices regarding postrelease control must be delivered directly to the defendant at the
plea hearing or at the sentencing hearing, as well as in the sentencing judgment entry.
State v. Wells, 7th Dist. No. 14 JE 5, 2014-Ohio-5504, ¶ 10, citing State v. Qualls, 131
Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18; Woods v. Telb, 89 Ohio St.3d
504, 733 N.E.2d 1103 (2000), paragraph two of the syllabus; State v. Mock, 187 Ohio
App.3d 599, 2010-Ohio-2747, 933 N.E.2d 270, ¶ 45 (7th Dist.). Unless a sentencing
entry that did not include notification of the imposition of postrelease control is corrected
before the defendant completed the prison term for the offense for which postrelease


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control was to be imposed, postrelease control cannot be imposed. State v. Baird, 7th
Dist. No. 15 MA 0155, 2016-Ohio-8211, ¶ 17, citing State v. Bundy, 7th Dist. No. 12 MA
86, 2013-Ohio-2501, ¶ 16, quoting Qualls, supra at ¶ 16. Moreover, once an offender
has been released from prison, it has been consistently held that he/she cannot be
subjected to another sentencing to correct a trial court’s flawed imposition of
postrelease control. State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d
382, at ¶ 11, citing State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d
1254, at ¶ 70; and State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d
568, at syllabus and ¶ 38.
       {¶13} In Wells, supra, the Defendant alleged that there were errors in both the
sentencing hearing and the sentencing judgment entry, and requested that the court
declare his postrelease control as void. Id. at ¶ 5. The sentencing entry stated: “[up]on
completion of the prison term, the offender shall be subject to such further period of
supervision being under post-release control as the parole board may determine
pursuant to law.” Id. at ¶ 9. The Wells Court stated that the trial court’s notice in the
sentencing entry correctly stated that Defendant shall be subject to postrelease control,
but failed to state that the length of the postrelease control shall be five years. Id. at ¶
12. The Court further noted that “[t]he Supreme Court has determined that the notice
was insufficient without mentioning the length of postrelease control.”          Id., citing
Bloomer, supra, at ¶ 69.
       {¶14} In Williams, the appellant had pled guilty to eight felony offenses, including
a burglary offense. Id. at ¶ 2. The Williams court sentenced the appellant to two years
for the burglary and one year for each of the other seven counts, with six of the one
year offenses to run concurrently and the burglary and arson sentences to run
concurrently, for a total of six years in prison. Id. at ¶ 3. At the sentencing hearing, the
court ordered that appellant “may be subject to a period of supervision under post
release control as the Parole Board may determine pursuant to law for a period of up to
three years.” Id. at ¶ 4. The sentencing entry repeated the exact language regarding
postrelease control. Id.
       {¶15} The Williams court noted that a mandatory three year term of postrelease
control was required in that case. Id. at ¶ 8, citing R.C. 2967.28(B)(2). The court cited



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State v. Jones, 7th Dist. No. 06 MA 17, 2009-Ohio-794, for the proposition that “a trial
court’s statement that the defendant may be subject to post-release control of ‘up to
three years’ is a statement that the defendant may be subject to less than three years,
possibly even no years, of post-release control” and as such is insufficient to impose
mandatory post-release control. Id. at ¶ 10. The language at the sentencing hearing as
well as the sentencing entry in Williams both stated “offender may be subject to a
period of supervision * * * as the Parole Board may determine * * *.” This consistently
demonstrates the discretionary nature of the language used in that case rather than the
mandatory term that was required.       Likewise, the language used in the sentencing
hearing in Jones, supra, stated “upon your release from the penitentiary you’ll be
ordered to serve an additional term of up to three years of post-release control.” Jones,
supra at ¶ 2. The sentencing entry in Jones did not restate the terms of postrelease
control, but merely stated that the “defendant was also advised pursuant to R.C.
2967.28.” Id.
       {¶16} Similarly, the Appellant herein was advised of postrelease control at his
change of plea and sentencing hearings. However, the information provided at the two
hearings was inconsistent and failed to advise Appellant of the mandatory five year
period of postrelease control. Appellant executed a Plea of Guilty form that advised of
postrelease control, but that advisement was stated in purely discretionary terms,
stating that Appellant “may be subject to a period of supervision…the control period
may be a maximum of five years.” (Plea of Guilty Form at 4). The trial court then
accurately advised Appellant at the change of plea hearing that he would have a
mandatory period of postrelease control for five years, but at the sentencing hearing,
the trial court stated that Appellant “would then be subject to postrelease control * * *
anywhere from three to five years.” (9/23/08 Tr. 11). The Appellant was not accurately
informed of the time period of postrelease control. Additionally, in the sentencing entry,
the trial court stated that postrelease control “shall be imposed up to a maximum period
of five (5) years”, again failing to accurately inform Appellant that his term of postrelease
control is a mandated five (5) years.
       {¶17} Appellee relies upon State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927,
85 N.E.3d 700 (2017), in support of its contention that the trial court properly advised



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the Appellant at the sentencing hearing and incorporated the necessary notifications
into the sentencing entry. It was undisputed in Grimes that the trial court properly
advised of postrelease control at the sentencing hearing, and the analysis turned to
whether the sentencing entry properly notified of the consequences of violating
postrelease control.   Id. at ¶ 2, 6.   The Court held that in order to validly impose
postrelease control when the trial court orally provides all the required advisements at
the sentencing hearing, the sentencing entry must contain the following information: (1)
whether postrelease control is discretionary or mandatory, (2) the duration of the
postrelease control period, and (3) a statement to the effect that the Adult Parole
Authority (“APA”) will administer the postrelease control pursuant to R.C. 2967.28 and
that any violation by the offender of the conditions of postrelease control will subject the
offender to the consequences set forth in that statute. Id. at ¶ 1.
       {¶18} Notably, the Grimes Court held that “our holding is limited to those cases
in which the trial court makes the proper advisements to the offender at the sentencing
hearing.” Id.at ¶ 20. In the instant case, there were errors at the sentencing hearing
and in the sentencing entry. At the hearing, Appellant was provided a range of “three to
five years” which does not accurately inform Appellant of his postrelease control, since
a mandatory five year period was applicable to his case. In addition, the sentencing
entry imposed a time period of “up to five years” which can be construed to mean a
shorter time period than the five year mandatory period which should have been
imposed. The language used at the sentencing hearing and in the sentencing entry did
not accurately advise Appellant of the duration of the postrelease control period, and
further raised questions as to whether the postrelease control was mandatory or
discretionary.
       {¶19} Other districts have held that a trial court’s sentencing entry that stated
“postrelease is mandatory in this case up to a maximum of five years” failed to properly
impose postrelease control and reversed and remanded for limited resentencing for
postrelease control. State v. Gaut, 11th Dist. No. 2010-T-0059, 2011-Ohio-1300, ¶ 20-
21; citing State v. O’Neal, 9th Dist. No. 09CA0045-M, 2010-Ohio-1252, ¶ 6 (finding that
the trial court’s statement at sentencing hearing that “prison authority could put on
postrelease control for up to five years” and the sentencing entry which stated that



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“postrelease control is mandatory up to a maximum of five years” did not conform to the
statutory requirement); State v. Ingram, 9th Dist. No. 09CA0020-M, 2009-Ohio-6371, ¶
6 (refusing to address merits of appeal, court held that the journal entry was void and
remanded for a sentencing hearing due to improper notification in the entry stating
“postrelease control is mandatory in this case up to a maximum of 5 years").
       {¶20} Here, the Appellant was not sufficiently informed of the period of
postrelease control based upon the differing language between the sentencing hearing
and the sentencing entry. Appellant was advised as to postrelease control, that “it will
be anywhere from three to five years” at the sentencing hearing, and then in the
sentencing entry that postrelease control would be imposed “up to a maximum period of
five (5) years.” Both references to the time period of postrelease control could leave the
Appellant believing that his postrelease control period could be 3, 4 or 5 years in length.
This does not constitute sufficient notice to Appellant, since he should have been
advised that postrelease control was mandatory for a five year period.
       {¶21} Lastly, due to the fact that Appellant has completed his prison term, he
cannot be subjected to resentencing to correct the flawed imposition of postrelease
control.   See State v. Wells, 7th Dist. No. 16 JE 0033, 2017-Ohio-7763, ¶ 15
(discharging defendant from postrelease control since his prison sentence had been
completed, where sentencing transcript was not provided for review, but sentencing
entry was clearly erroneous since the duration of postrelease control was not specified);
State v. Davis, 7th Dist. No 15 BE 0034, 2016-Ohio-7319, 71 N.E.3d 1254, ¶ 10-11
(reversing for a limited resentencing regarding postrelease control where the sentencing
entry and hearing both stated a postrelease control period of “up to three years” rather
than the mandatory three year period that was required).
       {¶22}   For the foregoing reasons, the sole assignment of error is meritorious
and the judgment of the trial court denying Appellant's motion to vacate is reversed.
Appellant was improperly notified of postrelease control, and he has completed his
original term of imprisonment. Accordingly, the portion of the sentencing entry imposing
postrelease control against Appellant is vacated.
Donofrio, J., concurs.
Robb, P.J., concurs.



Case No. 17 MA 0152
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       For the reasons stated in the Opinion rendered herein, the assignment of error is
sustained and it is the final judgment and order of this Court that the judgment of the
trial court denying Appellant's motion to vacate is reversed and the portion of the
sentencing entry of the Court of Common Pleas of Mahoning County, Ohio, imposing
postrelease control against Appellant is vacated. Costs are waived.
       A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                  NOTICE TO COUNSEL

       This document constitutes a final judgment entry.




Case No. 17 MA 0152
