[Cite as State v. Rink, 2019-Ohio-4379.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-19-1130

        Appellee                                 Trial Court No. CR0200201826

v.

Stanley Lee Rink                                 DECISION AND JUDGMENT

        Appellant                                Decided: October 25, 2019

                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Stanley Lee Rink, pro se.

                                           *****

        MAYLE, P.J.

        {¶ 1} In this accelerated appeal, appellant, Stanley Rink, appeals the May 23, 2019

judgment of the Lucas County Court of Common Pleas denying his “Motion To Vacate

5-Year Sentence For Violating Post-Release Control, Declared Void By This Court And
Credit The Time Served To The Current Sentence Imposed [sic].” For the following

reasons, we reverse.

                                 I. Background and Facts

         {¶ 2} In 1999, Rink was convicted of one count of rape and sentenced to three

years in prison (“1999 case”). He was released in 2001 and placed on postrelease

control.

         {¶ 3} In 2002, shortly after his release from prison, Rink was convicted of two

counts of rape in the case underlying this appeal (“2002 case”). The trial court sentenced

Rink to 10 years in prison on each rape count, as well as 5 years in prison for violating

postrelease control. The court ordered Rink to serve the prison terms consecutively, with

the 5-year postrelease control sanction to be served first. Rink appealed to this court,

arguing that the trial court erred by imposing maximum sentences. We affirmed. State v.

Rink, 6th Dist. Lucas No. L-02-1307, 2003-Ohio-4097.

         {¶ 4} In 2008, the trial court issued a nunc pro tunc sentencing entry once again

sentencing Rink to 10 years on each rape count and five years on the postrelease control

violation. The court again ordered Rink to serve the sentences consecutively, with the

postrelease control sanction to be served first. Rink did not appeal the nunc pro tunc

entry.

         {¶ 5} Beginning in 2014, Rink filed a series of motions seeking to have the 5-year

prison sentence for the postrelease control violation vacated on the basis that postrelease

control was not properly imposed in the 1999 case.




2.
       {¶ 6} In his 2014 motion, Rink argued that the trial court did not sentence him to

postrelease control in the 1999 case, so the Adult Parole Authority was not authorized to

place him on postrelease control when he finished his 3-year sentence in 2001. And

because the Adult Parole Authority was not authorized to place him on postrelease

control, Rink claimed, the trial court lacked jurisdiction to sentence him in the 2002 case

for violating postrelease control. Rink asked the trial court to remove the 5-year sentence

for the postrelease control violation from the sentencing entry in the 2002 case. In its

response to the 2014 motion, the state conceded that (1) postrelease control was not

properly imposed in the 1999 case, (2) the court could not correct the error because Rink

had served the entire sentence imposed in the 1999 case, and (3) the postrelease control

sanction in the 2002 case should be vacated. Nevertheless, the trial court inexplicably

denied Rink’s motion. Rink did not appeal the trial court’s decision.

       {¶ 7} In 2015, Rink filed a second motion seeking to have the 5-year prison

sentence for the postrelease control violation vacated. In his motion, he clarified that he

was seeking to have the postrelease control sanction in the 2002 case vacated, not seeking

to have the court correct the postrelease control imposed in the 1999 case. In its

opposition, the state argued that Rink was not entitled to have his 5-year sentence vacated

because he had already served the entire five years and was serving one of his 10-year

rape sentences, which was separate and distinct from the sentence for the postrelease

control violation. The trial court agreed with the state and denied Rink’s motion. Rink

did not appeal the trial court’s decision.




3.
       {¶ 8} In 2018, Rink filed a motion seeking a determination that he was wrongfully

imprisoned during the five years he served for the postrelease control violation. The state

opposed the motion, arguing that Rink could not meet the statutory elements required to

find that a person was wrongfully imprisoned. The trial court again agreed with the state

and denied Rink’s motion.

       {¶ 9} Finally, in 2019, Rink filed the motion underlying this appeal. In it, he

sought both to have the 5-year postrelease control sanction vacated and to have the time

he served for the postrelease control sanction credited to his 20-year sentence for the

rapes. In its opposition, the state argued that Rink waived or forfeited the remedy of

sentence credit because he did not raise the issue in any of his prior motions and Rink’s

motion was barred by laches and the law-of-the-case doctrine. On May 23, 2019, the trial

court denied Rink’s motion.

       {¶ 10} Rink now appeals, assigning the following error:

              The trial court abused its discretion when it denied Appellant’s

       request to credit him with the 5 years he served for a void post release

       control violation toward the total aggregate sentence imposed on his current

       term of incarceration for this case.

                                  II. Law and Analysis

       {¶ 11} In his assignment of error, Rink contends that he should receive credit

toward his 20-year rape sentence in the 2002 case for the five years he served for

violating postrelease control. He argues that, because postrelease control was not




4.
properly imposed in the 1999 case (making the postrelease control portion of his 1999

sentence void), the time he has already served on the postrelease control violation in the

2002 case was served on a void sentence and the remedy in such a case is crediting his

rape sentence with the time he served for the void postrelease control sanction. The state

responds that Rink did not timely raise this issue, so he has waived or forfeited it, his

claim is barred by laches, and his claim is barred by the law-of-the-case doctrine.

Because Rink served five years in prison on a void sentence, we agree with Rink that he

should receive credit toward his 20-year sentence for rape.

       {¶ 12} When a trial court fails to properly impose postrelease control as part of a

sentence, the postrelease control portion of the sentence is void. State v. Fischer, 128

Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26. In such a case, because that

portion of the sentence is void, the sentence “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. Moreover, any later criminal

convictions or postrelease control sanctions that are imposed under a void postrelease

control sentence are likewise void and subject to collateral attack. State v. Billiter, 134

Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960 (finding that the trial court lacked

jurisdiction to convict the defendant of escape—a charge based on the defendant’s

violation of the terms of his postrelease control—because the underlying postrelease

control was not properly imposed, resulting in a void judgment that was subject to

collateral attack).




5.
       {¶ 13} Generally, for criminal sentences imposed before July 11, 2006, the proper

remedy for a void postrelease control sentence is remand to the sentencing court for a

limited sentencing hearing restricted to properly imposing postrelease control.1 Fischer

at paragraph two of the syllabus; State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-

6434, 920 N.E.2d 958, paragraph one of the syllabus. If the trial court properly informed

the defendant about postrelease control at sentencing, but failed to incorporate the

necessary information into its sentencing entry, the error can be corrected by a nunc pro

tunc judgment entry. State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d

718, syllabus. However, the appropriate corrective action must be taken before the

defendant finishes serving the prison sentence to which the postrelease control is attached

because “a trial court loses jurisdiction to resentence a defendant for the purpose of

imposing postrelease control once the defendant has served his entire sentence of

incarceration.” State v. Holdcraft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382,

¶ 5; Qualls at ¶ 24 (“The original sentencing entry can be corrected to reflect what

actually took place at the sentencing hearing, through a nunc pro tunc entry, as long as

the correction is accomplished prior to the defendant’s completion of his prison term.”).




1
 Effective July 11, 2006, the general assembly enacted R.C. 2929.191, which outlines
how trial courts are to correct improperly-imposed postrelease control. 2006
Am.Sub.H.B. No. 137. The statutory process is only applicable to defendants who were
sentenced on or after July 11, 2006, however, Singleton at paragraph two of the syllabus,
so it is inapplicable to Rink’s case.




6.
       {¶ 14} In cases—like this one—where the defendant is incarcerated for violating

postrelease control that is later determined to be void and cannot be corrected because the

defendant finished serving his prison term, the remedy is vacating the sentence imposed

for the postrelease control violation. See, e.g., State v. Cupp, 2016-Ohio-8462, 75 N.E.3d

940 (4th Dist.) (vacating prison term imposed for violating postrelease control because it

was based on a void order of postrelease control); State v. Strowder, 8th Dist. Cuyahoga

No. 103156, 2015-Ohio-5270 (vacating prison term imposed for violating postrelease

control because it was based on a void order of postrelease control). In considering cases

where the underlying postrelease control is void and the defendant had served all of the

prison term imposed for a postrelease control violation, the Second District Court of

Appeals determined that the time served should be credited against the defendant’s

remaining prison term for the underlying felony because the defendant’s sentence for

violating postrelease control “arose out of” the underlying felony convictions. State v.

Tanksley, 2d Dist. Clark No. 2015-CA-80, 2016-Ohio-2963, ¶ 24; State v. Spencer, 2d

Dist. Clark No. 2017-CA-22, 2018-Ohio-873, ¶ 12.

       {¶ 15} Here, Rink argues, the state concedes, and the trial court found that

postrelease control was not properly imposed in the 1999 case and that the 5-year

postrelease control sanction is void. The record also shows that Rink has served the

entire 5-year sentence that the trial court imposed as a sanction for violating postrelease

control. Therefore, the usual remedy of vacating the postrelease control sanction is

insufficient. We agree with the Second District that, because the improper postrelease




7.
control sanction arose out of Rink’s underlying rape convictions, the appropriate remedy

is crediting the time Rink served for the postrelease control sanction toward the prison

terms imposed for the underlying rape convictions. Tanksley at ¶ 24; Spencer at ¶ 12.

       {¶ 16} Further, we find that the state’s arguments against granting Rink credit are

unpersuasive. First, because the underlying postrelease control was improperly imposed

and is void, res judicata does not preclude review of the void sentence, and Rink was

entitled to attack the void judgment at any time. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238, 942 N.E.2d 332, at paragraph one of the syllabus.

       {¶ 17} Second, the record shows that Rink did not waive or forfeit the issue.

“Waiver is the intentional relinquishment or abandonment of a right * * *.” State v.

Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 23. Forfeiture, on the

other hand, “is a failure to preserve an objection * * *.” Id. Rink repeatedly brought the

issue of his void postrelease control to the trial court’s attention and attempted numerous

times to receive relief from the trial court. This does not show that Rink intentionally

relinquished or abandoned the issue or that he failed to object to the trial court’s

decisions.

       {¶ 18} Third, laches does not apply here. Laches is a party’s failure to assert a

right for an unreasonable and unexplained period of time under circumstances that cause

prejudice to the opposing party. Connin v. Bailey, 15 Ohio St.3d 34, 35, 472 N.E.2d

328 (1984). Delay alone is an insufficient basis to support laches, however; the party

asserting laches must also show that it was materially prejudiced by the opposing party’s




8.
delay. Smith v. Smith, 168 Ohio St. 447, 156 N.E.2d 113 (1959), paragraph three of the

syllabus. Material prejudice exists when a party shows (1) the loss of evidence helpful to

the party’s case or (2) a change in the party’s position that would not have occurred if the

opposing party had asserted his rights sooner. Junkins v. Spinnaker Bay Condo. Assn.,

6th Dist. Ottawa No. OT-01-007, 2002 WL 337780, *12 (Mar. 1, 2002). The state has

not shown the loss of evidence helpful to its case or that it changed its position in a way it

would not have if Rink had asserted his rights sooner. Thus, the state cannot show any

material prejudice resulting from Rink’s delay in raising the issue of void postrelease

control. Accordingly, it cannot show that Rink’s claim is barred by laches.

       {¶ 19} Finally, the law-of-the-case doctrine does not bar Rink’s claims. Under the

law-of-the-case doctrine “a reviewing court’s decision [is] the law in the reviewed case

for all legal questions and for all subsequent proceedings in the case.” State ex rel. Sharif

v. McDonnell, 91 Ohio St.3d 46, 47, 741 N.E.2d 127 (2001). The purpose of the doctrine

is to “compel trial courts to follow the mandates of reviewing courts.” Nolan v. Nolan,

11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). Moreover, “[t]he doctrine is considered to be

a rule of practice rather than a binding rule of substantive law and will not be applied so

as to achieve unjust results.” Id. Prior to this decision, we have not had occasion to issue

an opinion regarding the postrelease control sanction imposed in the 2002 case. Thus,

there were no mandates from us that the trial court was following when it denied Rink’s

motion to vacate his sentence, and the law-of-the-case doctrine is inapplicable.




9.
       {¶ 20} In sum, because Rink was serving a prison sentence based on improperly-

imposed postrelease control (which the parties and the trial court agree resulted in a void

sentence) we find that Rink is entitled to credit against his underlying felony sentences.

Rink’s assignment of error is well-taken.

                                     III. Conclusion

       {¶ 21} Based on the foregoing, the May 23, 2019 judgment of the Lucas County

Court of Common Pleas is reversed and remanded for proceedings consistent with this

decision. The state is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                         Judgment reversed and remanded.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                            _______________________________
                                                            JUDGE
Christine E. Mayle, P.J.
                                                _______________________________
Gene A. Zmuda, J.                                           JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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