         [Cite as State v. Ringer, 2013-Ohio-2442.]




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



STATE OF OHIO,                                        :   APPEAL NO. C-120606
                                                          TRIAL NO. B-0010086
        Plaintiff-Appellee,                           :

  vs.                                                 :      O P I N I O N.

TONY M. RINGER,                                       :

    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: June 14, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Tony M. Ringer, pro se.




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



HILDEBRANDT, Judge.

       {¶1}     Defendant-appellant Tony M. Ringer appeals from the Hamilton

County Common Pleas Court’s judgment overruling his “Motion for Merger Hearing

Pursuant to R.C. 2941.25.” We affirm the court’s judgment as modified. But we

remand this case to the common pleas court for the proper imposition of postrelease

control.

       {¶2}     Ringer was convicted in 2002 upon guilty pleas to two counts of

voluntary manslaughter.      He took no direct appeal, but, instead, challenged his

convictions in a series of postconviction motions. See State v. Ringer, 1st Dist. No.

C-080590 (May 20, 2009).

       {¶3}     In January 2012, Ringer filed his “Motion for Merger Hearing

Pursuant to R.C. 2941.25.” In his motion, he argued that the trial court could not,

consistent with R.C. 2941.25, have sentenced him on both counts of voluntary

manslaughter, because the offenses are allied offenses of similar import that were

committed with the same conduct. And he contended that his sentences are void to

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

In this appeal from the overruling of that motion, Ringer advances two assignments

of error.

       {¶4}     No jurisdiction to grant allied-offenses claim. In his first
assignment of error, Ringer challenges the common pleas court’s denial of, and its

failure to conduct an evidentiary hearing on, his allied-offenses claim. The challenge

is untenable.

       {¶5}     Ringer did not specify in his motion the statute or rule under which he

sought postconviction 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 motion was reviewable as a postconviction petition


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                 OHIO FIRST DISTRICT COURT OF APPEALS



under the standards provided by the postconviction statutes. See State v. Schlee, 117

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

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

prescribed by R.C. 2953.21(A)(2). R.C. 2953.23 closely circumscribes the jurisdiction

of a common pleas court to entertain a late postconviction petition: the petitioner

must show either that he was unavoidably prevented from discovering the facts upon

which his petition depends, or that his claim is predicated upon a new or

retrospectively applicable federal or state right recognized by the United States

Supreme Court since the expiration of the time prescribed by R.C. 2953.21(A)(2) or

since the filing of his last petition; and he must show “by clear and convincing

evidence that, but for constitutional error at trial, no reasonable factfinder would

have found [him] guilty of the offense of which [he] was convicted.”

       {¶7}   The record before us does not, as it could not, demonstrate that, but

for the claimed sentencing error, no reasonable factfinder would have found Ringer

guilty of the offenses of which he was convicted. Thus, because Ringer did not satisfy

either the time restrictions of R.C. 2953.21(A)(2) or the jurisdictional requirements

of R.C. 2953.23, the postconviction statutes neither conferred upon the common

pleas court jurisdiction to entertain Ringer’s postconviction motion, nor imposed

upon the court an obligation to conduct an evidentiary hearing on the motion. See

R.C. 2953.21(C), 2953.21(E), and 2953.21(G); State v. Pankey, 68 Ohio St.2d 58, 428

N.E.2d 413 (1981); State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980).

       {¶8}   A court nevertheless has jurisdiction to correct a void judgment. See

State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d

263, ¶ 18-19. But the Ohio Supreme Court has not held that the imposition of a

sentence in violation of R.C. 2941.25 renders a judgment of conviction void. See

State v. Lee, 1st Dist. No. C-120307, 2013-Ohio-1811, ¶ 8.




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       {¶9}   We, therefore, hold that the common pleas court properly denied

Ringer’s allied-offenses claim without a hearing. Accordingly, we overrule the first

assignment of error.

       {¶10} The sentences were void and subject to correction to
the extent that postrelease-control notification was inadequate. In
his second assignment of error, Ringer asserts that his sentences are void to the

extent that he was not adequately notified concerning postrelease control. We agree.

       {¶11} The postrelease-control statutes in effect when Ringer was sentenced
required 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 former R.C. 2929.14(F), 2929.19(B)(3)(c)

through (e), and 2967.28(B) and (C) (superseded in 2011 by R.C. 2929.14[D],

2929.19[B][2][c] through [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; State v. Jordan, 104 Ohio St.3d 21,

2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the syllabus. Accord State v.

Smith, 1st Dist. No. C-120163, 2012-Ohio-5965, ¶ 10-11.           To the extent that

postrelease control is not properly imposed, the sentence is void, and the offending

portion of the sentence is subject to review and correction at any time, whether in the

direct appeal or in a collateral proceeding. State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus and ¶ 27.

       {¶12} At Ringer’s sentencing hearing, the trial court provided no postrelease-
control notification. And the notification incorporated in the 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 supervisions of R.C. 2967.28”; it did not specify the


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                    OHIO FIRST DISTRICT COURT OF APPEALS



duration or 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.

       {¶13} Thus, to the extent that Ringer’s sentences were not imposed in
conformity with the statutory mandates concerning postrelease control, the

sentences are void, and the offending portions of the sentences are subject to

correction. We, therefore, sustain the second assignment of error.

       {¶14} We affirm, but remand for resentencing.                   Ringer’s allied-

offenses claim was subject to dismissal without an evidentiary hearing, 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 the dismissal of the

motion. And we affirm the judgment as modified.

       {¶15} But Ringer’s sentences are void to the extent that he was not
adequately notified concerning postrelease control. We, therefore, remand this case

for correction of the offending portions of his sentences in accordance with the law

and this opinion.

                                                                Judgment accordingly.

HENDON, P.J., and FISCHER, J., concur.



Please note:

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




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