[Cite as State v. Reed, 2019-Ohio-2544.]


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

STATE OF OHIO                                        C.A. No.       29284

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
LAWRENCE W. REED                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 07-05-1385

                                 DECISION AND JOURNAL ENTRY

Dated: June 26, 2019



        HENSAL, Judge.

        {¶1}     Lawrence Reed appeals a judgment of the Summit County Court of Common

Pleas that denied his motion to vacate and release from post-release control supervision. For the

following reasons, this Court reverses.

                                                I.

        {¶2}     In 2007, Mr. Reed pleaded guilty to and was convicted of multiple offenses. The

trial court sentenced him to four years imprisonment. Although he completed his sentence in this

case in 2011, he remained imprisoned for other offenses until March 2019.

        {¶3}     In November 2018, Mr. Reed filed a motion to vacate and release from post-

release control supervision, arguing that, although the trial court had informed him that he would

be subject to a period of post-release control following his release, it failed to notify him about

the consequences he could face for violating post-release control. He, therefore argued that the
                                                  2


court’s imposition of post-release control was void. He also argued that, because he had already

completed his four-year sentence, the court could not correct its mistake.

       {¶4}    The trial court denied Mr. Reed’s motion, finding that it had, in fact, informed

Mr. Reed of his post-release control conditions. Mr. Reed has appealed, assigning as error that

the trial court incorrectly denied his motion to vacate.

                                                 II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION
       TO VACATE AND RELEASE FROM POST-RELEASE CONTROL
       SUPERVISION. THE SENTENCING JOURNAL DID NOT INCLUDE OR
       PROVIDE    APPELLANT    WITH    STATUTORILY    COMPLIANT
       NOTIFICATION OF POST RELEASE CONTROL SUPERVISION
       CONSEQUENCES, NOR DID THE TRIAL COURT ALLOCATE
       AUTHORITY/JURISDICTION TO THE OHIO ADULT PAROLE
       AUTHORITY TO ENFORCE POST-RELEASE CONTROL SANCTIONS,
       THUS FAILING TO COMPLY WITH SEPARATION-OF-POWERS, AND
       FULFILL ALL STATUTORY REQUIREMENTS OF POST-RELEASE
       CONTROL TO BE INCLUDED IN APPELLANT’S SENTENCING JOURNAL
       ENTRY.

       {¶5}    Mr. Reed argues that the trial court failed to give him the proper post-release

control notifications or incorporate them into its sentencing entry. He also argues that, since he

has completed his sentence for the offenses in this case, the trial court does not have jurisdiction

to resentence him.1

       {¶6}    “[I]n order to comply with separation-of-powers concerns and to fulfill the

requirements of the postrelease-control-sentencing statutes, * * * a trial court must provide


       1
         Although Mr. Reed completed his sentence for the offenses in this case in 2011, at
which point the court lost the ability to impose post-release control, he remained incarcerated on
other matters. Post-release control does not commence until action by the parole board “after the
offender’s release from imprisonment.” R.C. 2967.28(B); State v. Bigelow, 6th Dist. Lucas No.
L-17-1306, 2018-Ohio-3508, ¶ 3 (explaining that that post-release control period begins upon
defendant’s ultimate release from imprisonment). Thus, Mr. Reed’s argument is not moot.
                                                3


statutorily compliant notification to a defendant regarding postrelease control at the time of

sentencing.” State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶ 18, citing R.C. 2929.19(B)

and 2967.28. This includes “notifying the defendant of the details of the postrelease control and

the consequences of violating postrelease control.” Id. The trial court must also “incorporate

into the sentencing entry the postrelease-control notice to reflect the notification that was given

at the sentencing hearing[,]” which includes incorporating the consequences of violating post-

release control. Id. at ¶ 19; State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, ¶ 11

(“[T]he imposed post-release control sanctions are to be included in the judgment entry

journalized by the court.”); State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, ¶ 1. “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, 128 Ohio St.3d 92, 2010-Ohio-6238, at

paragraph one of the syllabus.

       {¶7}    The trial court’s sentencing entry indicates that, after Mr. Reed’s release from

prison, he is ordered to serve three years of post-release control.2 The entry, however, does not

incorporate the consequences of violating post-release control in any way. See Grimes at ¶ 16-

19. The Ohio Supreme Court has recognized that, “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 control was to be imposed, postrelease

control cannot be imposed.” Qualls at ¶ 16; Grimes at ¶ 15. This includes correcting a




       2
        The record does not contain a transcript of Mr. Reed’s sentencing hearing, so we must
presume that the trial court provided the appropriate notifications at that hearing. State v.
Figueroa, 9th Dist. Lorain No. 15CA010856, 2016-Ohio-6969, ¶ 7.
                                                 4


sentencing entry through a nunc pro tunc entry “to reflect what actually took place at the

sentencing hearing[.]” Qualls at ¶ 24.

       {¶8}    The State concedes that Mr. Reed’s sentencing entry does not include the

consequences of a post-release control violation. It also concedes that Mr. Reed has been

released from prison and that the trial court cannot resentence him. Upon review of the record,

we agree that the trial court did not properly incorporate the statutorily required post-release

control notices into its sentencing entry. Accordingly, the trial court incorrectly denied Mr.

Reed’s motion to vacate. Mr. Reed’s assignment of error is sustained.

                                                III.

       {¶9}    Mr. Reed’s assignment of error is sustained. The judgment of the Summit County

Court of Common Pleas is reversed, and this matter is remanded for further proceedings

consistent with this decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       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
                                                5


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 Appellee.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT



CALLAHAN, P. J.
CARR, J.
CONCUR.


APPEARANCES:

LAWRENCE W. REED, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
