         [Cite as State v. Duncan, 2013-Ohio-381.]




                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-120324
                                                         TRIAL NO. B-0101407
        Plaintiff-Appellee,                          :

  vs.                                                :      O P I N I O N.

THOMAS DUNCAN,                                       :

    Defendant-Appellant.                             :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified and Cause Remanded

Date of Judgment Entry on Appeal: February 8, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Office of the Ohio Public Defender and Jeremy J. Masters, Assistant State Public
Defender, for Defendant-Appellant.




Please note: we have removed this case from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS



HENDON, Judge.

        {¶1}     Defendant-appellant Thomas Duncan presents on appeal two

assignments of error that, when reduced to their essence, challenge the Hamilton

County Common Pleas Court’s judgment overruling Duncan’s “Motion to Vacate

Postrelease Control.”     We affirm the court’s judgment.           But we remand to the

common pleas court with instructions to discharge Duncan from his prison sentence

for violating the terms of postrelease-control supervision that was not properly

imposed.

        {¶2}     Duncan was convicted of murder in 2001. We reversed his conviction

on appeal. State v. Duncan, 154 Ohio App.3d 254, 2003-Ohio-4695, 796 N.E.2d

1006. On remand in 2003, Duncan entered a guilty plea to voluntary manslaughter

and was sentenced to ten years in prison.1 From his 2003 conviction, he took no

direct appeal.

        {¶3}     In February 2011, Duncan was released from prison and was placed on

postrelease control under the supervision of the Ohio Adult Parole Authority. In

December 2011, Duncan was indicted in the case numbered B-1108237 for drug and

weapons offenses. He pled guilty to drug trafficking and having weapons under a

disability and was sentenced in August 2012 to concurrent prison sentences totaling

18 months. The drug and weapons charges also led the adult parole authority, in

January 2012, to find that Duncan had violated the terms of his postrelease control

and to sanction his postrelease-control violation by imposing a prison term of 240

days.

        {¶4}     In March 2012, Duncan filed his “Motion to Vacate Postrelease

Control.” In his motion, he asked the court to “vacate” both the postrelease-control


1 The 2003 judgment of conviction incorrectly stated that Duncan had been convicted upon a jury
verdict finding him guilty of voluntary manslaughter.


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                 OHIO FIRST DISTRICT COURT OF APPEALS



supervision imposed in February 2011 upon his release from prison and the 240-day

prison sentence imposed in January 2012 for his postrelease-control violation. He

argued that his 2003 voluntary-manslaughter sentence is void to the extent that the

trial court had failed to adequately notify him concerning postrelease control, that

the offending portion of his sentence could not be corrected after he had been

released from the prison term imposed for voluntary manslaughter, and that he

could not thereafter be sanctioned for violating the terms of postrelease-control

supervision that had not been properly imposed.

       {¶5}   “Motion to Vacate Postrelease Control” was reviewable

and subject to dismissal under R.C. 2953.21 et seq. Duncan did not

specify in his motion the statute or rule under which he sought relief. R.C. 2953.21 et

seq., governing the proceedings upon a postconviction petition, provide “the exclusive

remedy by which a person may bring a collateral challenge to the validity of a

conviction or sentence in a criminal case.” R.C. 2953.21(J). Therefore, the common

pleas court should have reviewed Duncan’s motion as a postconviction petition

under the standards provided by R.C. 2953.21 et seq. See State v. Schlee, 117 Ohio

St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12.

       {¶6}   But Duncan filed his motion well after the expiration of the time

prescribed by R.C. 2953.21(A)(2). And the record does not demonstrate either that

he was unavoidably prevented from discovering the facts underlying his claims, or

that his claims were predicated upon a new or retrospectively applicable federal or

state right recognized by the United States Supreme Court since the time for filing a

postconviction petition had expired. Because Duncan satisfied neither the time

strictures of R.C. 2953.21(A)(2) nor the jurisdictional requirements of R.C.

2953.23(A), the postconviction statutes did not confer upon the common pleas court



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jurisdiction to entertain Duncan’s postconviction claims on their merits, and his

motion was subject to dismissal. We, therefore, overrule his assignments of error.

       {¶7}   Court could not correct inadequate postrelease-control

notification after release from prison. Nevertheless, a trial court retains

jurisdiction to correct a void judgment. State ex rel. Cruzado v. Zaleski, 111 Ohio

St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. And Duncan’s 2003 voluntary-

manslaughter sentence is void to the extent that he was not adequately notified

concerning postrelease control.

       {¶8}   A felony prison sentence must include a term of postrelease control.

R.C. 2967.28 and 2929.14(F). And the sentencing court must notify the offender at

the sentencing hearing concerning postrelease control and must incorporate

postrelease-control notification in the judgment of conviction. R.C. 2929.19(B)(3)(c)

through (B)(3)(e); State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d

864, paragraph one of the syllabus. Specifically, the court must notify the offender,

with respect to each offense, of the length and mandatory or discretionary nature of

postrelease control, of the consequences of violating postrelease control, and of the

length of confinement that could be imposed for a postrelease-control violation. See

R.C. 2929.19(B)(3)(c) through (B)(3)(e) and 2967.28(B) and (C); State v. Ketterer,

126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 77-79; State v. Bloomer, 122

Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 69.

       {¶9}   Thus, in sentencing Duncan for the first-degree felony of voluntary

manslaughter, the trial court was required to notify Duncan, at sentencing and in the

judgment of conviction, that upon his release from prison, he would be subject to a

mandatory five-year period of postrelease-control supervision.             See R.C.

2929.19(B)(3)(c) and 2967.28(B)(1). And the court was required to notify Duncan,




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again at sentencing and in the judgment of conviction, of the consequences of

violating postrelease control and of the length of confinement that could be imposed

for violating postrelease control. See R.C. 2929.19(B)(3)(e).

       {¶10} In deciding Duncan’s “Motion to Vacate Postrelease Control,” the

common pleas court did not have before it a transcript of the proceedings at Duncan’s

2003 sentencing hearing, because he had not appealed his convictions, and because he

did not request that a transcript be prepared for the common pleas court’s decision on

the motion.    In the absence of that transcript, Duncan’s sentences were not

demonstrably void for inadequate postrelease-control notification at the sentencing

hearing.

       {¶11} But it is the incorporation of postrelease-control notification in the

judgment of conviction that empowers the adult parole authority to impose

postrelease control. Woods v. Telb, 89 Ohio St.3d 504, 513, 733 N.E.2d 1103 (2000).

And the notification incorporated in Duncan’s 2003 judgment of conviction simply

stated that “[a]s part of the sentence in this case, the defendant is subject to the post

release [sic] control supervision of R.C. 2967.28.” It did not specify the duration or

the mandatory nature of the postrelease-control supervision, the consequences of

violating postrelease control, or the length of confinement that could be imposed for

a postrelease-control violation.

       {¶12} The common pleas court overruled Duncan’s “Motion to Vacate

Postrelease Control” on the ground that it had no authority to grant the relief sought.

Citing State ex rel. Pruitt v. Cuyahoga Cty. Court of Common Pleas, 125 Ohio St.3d

402, 2010-Ohio-1808, 928 N.E.2d 722, the court insisted that, because the judgment

of conviction “include[d] language that made postrelease control a part of [Duncan’s]

sentence, it fell [to] him to challenge the imposition of postrelease control in an




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appeal.” And the court cited Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-

126, 844 N.E.2d 301, to hold that it “lack[ed] jurisdiction to consider [the] motion,”

because “an action against the Department of Rehabilitation and Corrections” was

“the appropriate vehicle” for challenging the imposition of postrelease control after

Duncan had been released from his 2003 prison term for voluntary manslaughter.

       {¶13} But, again, the postrelease-control statutes and the supreme court’s

postrelease-control decisions require that, with respect to each offense, a sentencing

court notify the offender, both at the sentencing hearing and in the judgment of

conviction, of the length and mandatory or discretionary nature of postrelease

control, of the consequences of violating postrelease control, and of the length of

confinement that could be imposed for a postrelease-control violation. See Ketterer,

126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, at ¶ 77-79; Bloomer, 122 Ohio

St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, at ¶ 69. To the extent that a sentence

is not imposed in conformity with the statutory mandates concerning postrelease

control, it is void. And when the matter has come to a court’s attention, whether on

direct appeal or in a collateral challenge, the court “cannot ignore” the matter, State

v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422, ¶ 12; see also State

v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 23, and “the

offending portion of the sentence is subject to review and correction.” State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the

syllabus and ¶ 27. Accord State v. Billiter, ___ Ohio St.3d ___, 2012-Ohio-5144,

___ N.E.2d ___ (holding that res judicata did not bar a collateral challenge to

postrelease-control notification after the offender had been convicted of escape for

violating postrelease control).




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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14} In light of these legislative and judicial mandates, Pruitt cannot be

read to establish either a rule of substantial compliance with the postrelease-control

statutes when the judgment of conviction makes some reference to postrelease

control, or a rule of waiver or forfeiture when postrelease-control notification is not

challenged on direct appeal. State v. Smith, 1st Dist. No. C-120163, 2012-Ohio-5965.

Nor can Hernandez be read to establish habeas corpus as the only means for

challenging the imposition of postrelease control after the offender’s release from

prison. See, e.g., Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254,

at ¶ 70-73; State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 18;

Simpkins at syllabus.

       {¶15} The supreme court has also held that any “correction” to postrelease-

control notification must be accomplished before the offender has been released

from prison. If it is not, the adult parole authority can neither impose postrelease

control nor sanction the offender for a postrelease-control violation, and the

defendant is entitled to be discharged. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-

2462, 909 N.E.2d 1254, at ¶ 70-73; Simpkins at syllabus; Bezak at ¶ 18; see also State

v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 24 (holding that if

postrelease-control notification was properly given at the sentencing hearing, flawed

notification in the judgment of conviction may be corrected by a Crim.R. 36 nunc pro

tunc entry, “as long as the correction is accomplished prior to the defendant’s

completion of his prison term”).

       {¶16} Duncan’s 2003 judgment of conviction is void to the extent that it did

not specify the duration or the mandatory nature of postrelease-control supervision,

the consequences of violating postrelease control, or the length of confinement that

could be imposed for a postrelease-control violation. His 2012 “Motion to Vacate




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                  OHIO FIRST DISTRICT COURT OF APPEALS



Postrelease Control” brought this matter to the common pleas court’s attention. But

the court could not correct the deficiencies in the postrelease-control notification

after Duncan had been released from prison, and he was entitled to be discharged

from the prison sentence imposed for his postrelease-control violation.

       {¶17} We affirm, but remand for discharge. We, therefore, hold that

Duncan’s “Motion to Vacate Postrelease Control” was subject to dismissal because

the postconviction statutes did not confer on the common pleas court jurisdiction to

entertain the motion on its merits.       Accordingly, upon the authority of App.R.

12(A)(1)(a), we modify the judgment appealed from to reflect a dismissal of the

motion. And we affirm the judgment as modified.

       {¶18} But Duncan’s 2003 voluntary-manslaughter sentence is void to the

extent that he had not been adequately notified concerning postrelease control. And

because the common pleas court could not correct the deficiencies in the postrelease-

control notification after Duncan had been released from prison, we remand this

case to the common pleas court with instructions to enter judgment discharging

Duncan from the prison sentence imposed for violating postrelease control.

                                                                  Judgment accordingly.

HILDEBRANDT, P.J., concurs.
DINKELACKER, J., concurs in part and dissents in part.

DINKELACKER, J., concurring in part and dissenting in part.
       {¶19} I agree that the trial court should have dismissed Duncan’s “Motion to

Vacate Postrelease Control” because the trial court lacked jurisdiction to consider it. But

I cannot concur in the majority’s decision that “Duncan’s 2003 voluntary-manslaughter

sentence is void to the extent that he had not been adequately notified concerning

postrelease control.”




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶20} The “Judgment Entry: Sentence: Incarceration” entered of record

December 9, 2003 states the following regarding postrelease control: “As part of the

sentence in this case, the defendant is subject to the post release control supervision of

R.C. 2967.28.”

       {¶21} My interpretation of the statutory authority relevant to postrelease

control and the Ohio Supreme Court’s pronouncements in Watkins v. Collins, 111 Ohio

St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, and State ex rel. Pruitt v. Cuyahoga Cty.

Court of Common Pleas, 125 Ohio St.3d 402, 2010-Ohio-1808, 928 N.E.2d 722, causes

me to conclude that the language of the entry more than adequately notified Duncan of

the postrelease-control requirements.

       {¶22} Therefore, I respectfully dissent from that portion of the majority’s

opinion.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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