State v. Filous , 95 N.E.3d 573 ( 2017 )

[Cite as State v. Filous, 2017-Ohio-7203.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
: Case No. 16CA16
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
NEIL E. FILOUS, :
:
Defendant-Appellant. : Released: 07/31/17
_____________________________________________________________
APPEARANCES:
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant
Ohio Public Defender, Columbus, Ohio, for Appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M.
Saunders, Assistant Athens County Prosecuting Attorney, Athens, Ohio, for
Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Neil Filous appeals the judgment of the Athens County Court of
Common Pleas finding he had violated the terms and conditions of his
community control/judicial release and sentencing him to the time remaining
on two concurrent twelve-month prison terms with a mandatory three-year
term of post-release control, to be served consecutively to a prison term
imposed in Cuyahoga County. On appeal, Appellant contends that the trial
Athens App. No. 16CA16 2
court erred by imposing post-release control for a prison term imposed for a
community control violation.
{¶2} We reject the arguments raised under Appellant's sole
assignment of error as meritless. However, because we find that the trial
court failed to properly notify Appellant of the correct term of post-release
control when it sentenced him to prison for a community control violation,
the imposition of post-release control is void. Further, because Appellant
has already completed the prison term re-imposed as a result of his
subsequent judicial release violation, the trial court has no jurisdiction to
correct the error related to the improper imposition of post-release control.
Accordingly, the judgment of the trial court is vacated to the extent it
purported to impose either an optional or mandatory three-year term of post-
release control. We additionally order Appellant discharged from further
supervision by the Adult Parole Authority.
FACTS
{¶3} Appellant, Neil Filous, was indicted for two counts of domestic
violence in violation of R.C. 2919.25, both third degree felonies. Appellant
pleaded guilty to the charges and was originally sentenced to a five-year
term of community control on September 24, 2012. The trial court orally
advised Appellant at his sentencing hearing that if he violated his
Athens App. No. 16CA16 3
community control, he would be sent to prison for twelve months. The trial
court made no reference to post-release control during the original
sentencing hearing. The initial judgment entry that was filed was followed
by a nunc pro tunc judgment entry stating Appellant would be sentenced to
two concurrent twelve-month prison terms and would be subject to an
optional three-year term of post-release control if he violated community
control.
{¶4} A notice of violation was filed on February 21, 2013. A First
Stage Revocation Hearing was held at which Appellant admitted to the
violation. The trial court terminated Appellant's community control and
imposed two twelve-month prison terms, to be served concurrently. The
trial court made no reference to post-release control, and once again the
judgment entry that followed stated Appellant would be subject to an
optional three-year term of post-release control. Approximately six months
later Appellant filed a motion for judicial release, which the trial court
granted. There is no hearing transcript from the judicial release hearing in
the record; however, the journal entry ordering judicial release stated
Appellant was placed on five years of community control to be supervised
by the Adult Parole Authority and the court reserved the right to re-impose
the sentence that was reduced if Appellant violated the terms of his judicial
Athens App. No. 16CA16 4
release/community control. The entry also stated Appellant would be
subject to an optional three-year term of post-release control if the court re-
imposed the prison sentence.
{¶5} A notice of violation of judicial release/community control was
filed on February 5, 2016. Another First Stage Revocation Hearing was held
on June 21, 2016. A discussion was held between the court and counsel
regarding the fact that Appellant had previously been sentenced to an
optional three-year term of post-release control when he should have been
sentenced to a mandatory three-year term of post-release control. After
deciding the mistake was a clerical error, the trial court proceeded to revoke
Appellant's judicial release and re-impose the suspended prison sentence.
The trial court advised Appellant during the hearing that he would now be
subject to a mandatory three-year term of post-release control. Appellant
was returned to prison for the balance of time remaining on his prison
sentence, which was approximately two and half months. At this time
Appellant has completed his prison term and was released under the
supervision of the Adult Parole Authority beginning on March 17, 2017 for a
period of three years. It is from the trial court's judgment entry revoking his
judicial release, returning him to prison and subjecting him to three years of
Athens App. No. 16CA16 5
mandatory post-release control that Appellant now brings his current appeal,
setting forth a single assignment of error for our review.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED BY IMPOSING POSTRELEASE
CONTROL FOR A PRISON TERM IMPOSED FOR A
COMMUNITY CONTROL VIOLATION.”
LEGAL ANALYSIS
{¶6} In his sole assignment of error, Appellant contends the trial court
erred by imposing post-release control for a prison term imposed for a
community control violation. Appellant asserts that the issue presented for
review is whether a defendant who finishes a prison term for a community
control violation is subject to post-release control or community control. The
State concedes this Court has consistently found that the sanction imposed for
a community control violation punishes the violation and not the underlying
crime. The State further argues that because the prison term to be imposed for
such a violation must be within the range of prison terms available for the
offense for which the sanction that was violated was imposed, post-release
control is part of the actual sentence.
{¶7} For the following reasons, we reject Appellant's argument and
find his sole assignment of error to be without merit. However, because we
find the trial court failed to properly impose post-release control when it
Athens App. No. 16CA16 6
terminated Appellant's community control and sent him to prison the first
time, and because Appellant has now completed his prison term, the post-
release control portion of Appellant's sentence is void and the trial court has
no jurisdiction to correct it. Accordingly, the decision of the trial court must
be vacated with regard to the imposition of post-release control.
{¶8} “Generally, when reviewing felony sentences, we apply the
standard of review set forth in R.C. 2953.08(G)(2).” State v. Baker, Athens
No. 13CA18, 2014-Ohio-1967, ¶ 25. See also State v. Brewer, Meigs No.
14CA1, 2014-Ohio-1903, 11 N.E.3d 317, ¶ 33 (“we join the growing number
of appellate districts that have abandoned the Kalish plurality's second-step
abuse-of-discretion standard of review; when the General Assembly reenacted
R.C. 2953.08(G)(2), it expressly stated that ‘[t]he appellate court's standard of
review is not whether the sentencing court abused its discretion’ ”).
{¶9} Under R.C. 2953.08(G)(2), we may only modify or vacate a
defendant's sentence if we find, clearly and convincingly, that (1) the record
does not support the mandatory sentencing findings, or (2) that the sentence
is “otherwise contrary to law.” We recognize that this is an “extremely
deferential standard of review.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d
453, ¶ 21. Although State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912,
896 N.E.2d 124, may not provide the standard of review framework for
Athens App. No. 16CA16 7
reviewing felony sentences, it does provide guidance for determining
whether a sentence is clearly and convincingly contrary to law. See State v.
Lee, 12th Dist. Butler No. CA2012–09–182, 2013-Ohio-3404, ¶ 10.
According to Kalish, a sentence is not clearly and convincingly contrary to
law when the trial court considered the purposes and principles set forth in
2929.11, as well as the factors listed in R.C. 2929.12, properly applies post-
release control, and sentences within the permissible statutory range. Id.; see
also State v. Kalish, at ¶ 18.
{¶10} We initially note, with respect to Appellant's argument that a
trial court cannot impose post-release control in connection with a prison
term imposed after a community control violation, that the Tenth District
Court of Appeals has rejected this exact argument in State v. Nutt, 10th Dist.
Franklin No. 00AP-190, 2000 WL 1537898, *4. Although we have been
unable to locate any other case that has considered this particular question,
we reject the argument as well. Appellant bases his argument, in part, upon
an idea that a trial court has no authority to end a defendant's community
control, except for good behavior as provided for in R.C. 2929.15 (C). We
believe this reasoning is flawed. Courts, including this District and the
Supreme Court of Ohio, routinely reference the termination or revocation of
community control. State v. Fraley, 105 Ohio St. 3d 13, 2004-Ohio-7110,
Athens App. No. 16CA16 8
821 N.E.2d 995; State v. Wolfson, 4th Dist. Lawrence No. 03CA25, 2004-
Ohio-2750, ¶ 8 (trial court’s decision to revoke community control may only
be reversed if the court abused its discretion). In our view, when a trial court
terminates or revokes a defendant's community control, it is implicit that the
term of community control ends. Although R.C. 2929.15 does not
specifically label the decision to impose a prison term for a community
control violation as a termination or revocation of the community control,
for all intents and purposes it is nevertheless ended. We believe this
reasoning is further bolstered by the fact that when the trial court granted
Appellant judicial release after it had imposed a prison term for a violation
of Appellant's community control, which will be discussed more fully
below, it was required, under the judicial release statute, to place Appellant
on community control. R.C. 2929.20(K). If Appellant's community control
continued when he was sent to prison, there would have been no reason for
the trial court to have to affirmatively place him on community control after
he was judicially released.
{¶11} Further, even if we were to accept Appellant's argument that
community control continues even after it is "terminated" or "revoked" by a
trial court when it imposes a prison sentence on an offender, this Court has
held that "[c]ommunity control sanctions and post-release control are
Athens App. No. 16CA16 9
separate statutory procedures." State v. Leedy, 4th Dist. Meigs Nos. 13CA7,
13CA8, 2015-Ohio-1718, ¶ 10. In Leedy, which involved the trial court
ordering a period of community control to be served consecutively to a
prison term, we reasoned as follows:
"While it is true individuals leaving prison may or may not be
subject to post release control, community control sanctions are
a distinct penalty the trial court imposes once an individual is
found guilty of an offense. See generally R.C. 2929.15." Id.
As such, we "did not find that the trial court's sentence of five years of
community control conflicts with the discretion of the Adult Parole
Authority's to enforce post-prison conditions." Id.
{¶12} We additionally note that courts routinely reference defendants
being placed on post-release control for prison terms imposed after
community control violations, including this District. See State v. Hart, 4th
Dist. Athens No. 13CA8, 2014-Ohio-3733, ¶ 4; State v. Evans, 4th Dist.
Meigs No. 00CA003, 2000 WL 33538779, *5; State v. Slater, 5th Dist. Stark
No. 2007-CA-00111, 2008-Ohio-439 (involving imposition of community
control, revocation of community control and imposition of a prison term
with post-release control); State v. Cunningham, 2nd Dist. Clark Nos. 2014-
CA-99, 2014-CA-100, 2015-Ohio-2554 (involving a prison term with post-
release control being imposed for a community control violation). As such,
and in the absence of any authority to the contrary, we find no error occurs
Athens App. No. 16CA16 10
when a trial court imposes post-release control in connection with a prison
term imposed after a community control violation. We now reject the
argument raised under Appellant's sole assignment of error. Unfortunately,
however, our analysis does not end here, as we sua sponte address another
problem that rendered the trial court's imposition of post-release control
void.
{¶13} As set forth above, Appellant was initially sentenced to a five-
year term of community control after he pleaded guilty to two counts of
domestic violence in violation of R.C. 2919.25(A), both third degree
felonies. He was orally advised at his original sentencing hearing that the
trial court would impose a twelve-month term of imprisonment in the event
he violated his community control. The trial court did not specify whether it
would impose a twelve-month term on each count, or whether the term(s)
would run concurrently or consecutively, nor did it mention post-release
control. However, the judgment entry filed by the court stated Appellant
would be sentenced to an eighteen-month prison commitment as well as
three years of optional post-release control in the event he violated his
community control. A nunc pro tunc judgment entry was then filed stating
all of the conditions in the prior entry were incorrect, and stating instead that
Appellant would be sentenced to twelve-month concurrent terms of
Athens App. No. 16CA16 11
imprisonment on each count and would be subject to an optional three-year
term of post-release control in the event he violated his community control.
No new hearing was held in conjunction with the issuance of this corrected
entry.
{¶14} When Appellant subsequently violated the terms of his
community control, the trial court terminated Appellant’s community control
and imposed two twelve-month prison terms, to be served concurrently. The
trial court did not orally advise Appellant that he would be subject to a term
of post-release control; however, the judgment entry that followed once
again stated Appellant would be subject to an optional three-year term of
post-release control. Another nunc pro tunc judgment entry followed, but
made no changes pertinent herein.
{¶15} Approximately six months later, Appellant filed a motion for
judicial release, which the trial court granted. There is no hearing transcript
from the judicial release hearing contained in the record before us, but the
journal entry ordering judicial release stated that the trial court placed
Appellant on five years of community control under the Adult Parole
Authority, reserved the right to re-impose the sentence that was reduced in
the event of a subsequent violation, and stated Appellant was subject to an
optional three-year term of post-release control. Thereafter, Appellant
Athens App. No. 16CA16 12
violated the terms of his judicial release and community control, which he
had been placed on when he was granted judicial release.
{¶16} At the hearing that was held on the second violation, a
discussion was had on the record between the trial court and counsel
regarding the fact that Appellant had previously been sentenced to an
optional three-year term of post-release control, which should instead have
been a mandatory term. It appears it was decided that the mistake was a
clerical error. The trial court then revoked Appellant's judicial release, re-
imposed the balance of the previously-suspended sentence and informed
Appellant he was subject to three years of mandatory post-release control.
According to the Ohio Department of Corrections webpage, Appellant was
released from prison on March 17, 2017 and is currently being supervised by
the Adult Parole Authority for a period of three years.1
{¶17} As such, this case presents us with a scenario where Appellant
was initially sentenced to a term of community control, which is controlled
by one statute, but then was sent to prison, granted judicial release and then
returned to prison, which is controlled by another statute. Accordingly, a
review of these pertinent statutes is necessary in order to explain why we
1
State ex rel. Everhart v. McIntosh, 115 Ohio St. 3d 195, 2007-Ohio-4798, 974 N.E.2d 516, ¶ 8, 10 (court
can take judicial notice of judicial opinions and public records accessible from the internet).
Athens App. No. 16CA16 13
have concluded the post-release control portion of Appellant's sentence is
void, and why we do not reach the merits of Appellant's arguments.
{¶18} With regard to Appellant's original sentence of community
control, R.C. 2929.19, which governs sentencing hearings, provides in
section (A)(4) that when a court determines at a sentencing hearing that a
community control sanction should be imposed, the court must do the
following:
"The court shall notify the offender that, if the conditions of the
sanction are violated, if the offender commits a violation of law,
or if the offender leaves this state without the permission of the
court or the offender's probation officer, the court may impose a
longer time under the same sanction, may impose a more
restrictive sanction, or may impose a prison term on the
offender and shall indicate the specific prison term that may be
imposed as a sanction for the violation, as selected by the court
from the range of prison terms for the offense pursuant to
section 2929.14 of the Revised Code." (Emphasis added).
R.C. 2929.15 governs community control sanctions and provides in section
(B)(1) the penalties that may be imposed by the trial court in the event
conditions of community control are violated, which include:
"(a) A longer time under the same sanction if the total time
under the sanctions does not exceed the five-year limit specified
in division (A) of this section;
(b) A more restrictive sanction under section 2929.16, 2929.17,
or 2929.18 of the Revised Code;
(c) A prison term on the offender pursuant to section 2929.14 of
the Revised Code." (Emphasis added).
R.C. 2929.15 further provides in section (B)(3) as follows:
Athens App. No. 16CA16 14
"[t]he prison term, if any, imposed upon a violator pursuant to
this division shall be within the range of prison terms available
for the offense for which the sanction that was violated was
imposed and shall not exceed the prison term specified in the
notice provided to the offender at the sentencing hearing
pursuant to division (B)(2) of the section 2929.19 of the
Revised Code."
{¶19} The Supreme Court of Ohio in State v. Brooks, 103 Ohio St. 3d
134, 2004-Ohio-4746, 814 N.E.2d 837, held at paragraph two of the syllabus
that "[p]ursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court
sentencing an offender to a community control sanction must, at the time of
the sentencing hearing, notify the offender of the specific prison term that
may be imposed for a violation of the conditions of the sanction, as a
prerequisite to imposing a prison term on the offender for a subsequent
violation." (Emphasis added). The Eighth District Court of Appeals has
interpreted the holding in Brooks to mean that the trial court must only
inform a defendant of the specific prison term at the original sentencing
hearing, and is not required to give all of the other advisements, including
advisements related to post-release control. State v. Harris, 8th Dist.
Cuyahoga No. 89971, 2008-Ohio-2175, ¶ 7 (* * * there is no requirement
that the court imposing community control sanctions must inform the
defendant that if he is later sentenced to a term of imprisonment for a
violation of the conditions of his sanctions, then post-release control may be
Athens App. No. 16CA16 15
imposed. These contingencies are not part of the 'specific prison term' that
can be imposed in the event of a future violation of the conditions of post-
release control."); State v. Oulhint, 8th Dist. Cuyahoga No. 99296, 2013-
Ohio-3250, ¶ 12 ("Absent from the above statutes [R.C. 2929.19 and R.C.
2929.15] is a requirement that a court that chooses to impose community
control sanctions as an initial sentence must inform the offender of
postrelease control. Such requirement applies, instead, when the trial court
chooses at the original sentencing hearing to impose the sanction of a prison
term."); citing R.C. 2967.28(B) and 2929.19(B)(3); see also State v. Parker,
5th Dist. Stark Nos. 2010CA00148, 2010CA00149, 2011-Ohio-595, ¶ 30. In
light of the foregoing, despite the trial court's failure to mention post-release
control at Appellant's original sentencing hearing in which the trial court
imposed a community control sanction, which we would normally consider
to be a post-release control notification error, we find no error.
{¶20} Here, we do find that an error occurred with regard to the
imposition of post-release control at the time Appellant's community control
was terminated and Appellant was sentenced to prison. In State v. Fraley,
supra, at ¶ 17, the Supreme Court of Ohio reasoned that "[f]ollowing a
community control violation, the trial court conducts a second sentencing
hearing. At this second hearing, the court sentences the offender anew and
Athens App. No. 16CA16 16
must comply with the relevant sentencing statutes." The decision of the
Supreme Court was split in this case, with Chief Justice Moyer dissenting
based upon his belief "that community control-violation hearings are not
sentencing hearings." Id. at ¶ 22. The dissenting opinion went on to state
that "[t]he application of these basic principles of felony sentencing in an
R.C. 2929.15(B) hearing does not transform that proceeding into an R.C.
2929.19 sentencing hearing." Id. at ¶ 23. Despite the disagreement, the
majority opinion concluded that each new community control violation
hearing in effect is a new sentencing hearing where the defendant is
sentenced "anew." Id. at ¶ 17.
{¶21} The Oulhint Court has reasoned as follows with regard to the
holding in Fraley:
"We construe the holding of the Supreme Court in Fraley
narrowly to mean that a trial court that fails to notify a
defendant of the specific penalty he will face upon a violation
of community control sanctions at the initial sentencing may
'cure' that failure at a subsequent violation hearing by then
advising the defendant of the definite term of imprisonment that
may be imposed upon any subsequent finding of violation. We
find nothing in the statute or Fraley that requires a legally
adequate notification in the first instance be given over and over
again." Oulhint at ¶ 19.
Applying the rationale of Brooks, in light of Fraley, Harris and Oulhint, it
appears that the trial court did not err in failing to mention post-release
control at Appellant's original sentencing hearing, as it was not part of the
Athens App. No. 16CA16 17
"specific" prison term. Further, it appears that when Appellant violated his
community control and was brought before the trial court and sentenced to
prison, that hearing was not actually a First Stage Revocation Hearing, as
referred to by the trial court, but under Fraley was a second sentencing
hearing in which Appellant was sentenced "anew" to two concurrent twelve-
month terms of imprisonment. Importantly, the trial court failed to mention
post-release control at this second sentencing hearing as well.
{¶22} Although the judgment entry stated Appellant was to be subject
to an optional three-year term of post-release control, the trial court did not
notify Appellant of this fact on the record during the sentencing. Under R.C.
2929.19(B)(2)(c) and (e), a trial court must notify certain felony offenders at
the sentencing hearing that: 1.) the offender is subject to statutorily
mandated post-release control; and 2.) the parole board may impose a prison
term of up to one-half of the offender's originally-imposed prison term if the
offender violates the post-release control conditions. Not only is a trial court
required to notify the offender about post-release control at the sentencing
hearing, it is further required to incorporate that notice into its journal entry
imposing sentence. However, the main focus of the post-release control
sentencing statutes is on the notification itself and not on the sentencing
entry. (Citations and quotations omitted.) State v. Adkins, 4th Dist. Lawrence
Athens App. No. 16CA16 18
No. 13CA17, 2014-Ohio-3389, 2014 WL 3824030, ¶ 36. “When a trial
court fails to provide the required notification at either the sentencing
hearing or in the sentencing entry, that part of the sentence is void and must
be set aside.” (Emphasis sic.) Id. at ¶ 37; citing State v. Fischer, supra, at
¶¶ 27-29; see also State v. Adams, 4th Dist. Lawrence No. 15CA2, 2016-
Ohio-7772, ¶ 87. “ ‘[I]n most cases, the prison sanction is not void and
therefore “only the offending portion of the sentence is subject to review and
correction.” ’ ” Id.; quoting State v. Holdcroft, 137 Ohio St. 3d 526, 2013-
Ohio-5014, 1 N.E.3d 382, ¶ 7; quoting Fischer at ¶ 27.
{¶23} Because the trial court failed to notify Appellant that he would
be subject to post-release control at this second sentencing hearing where the
trial court imposed a prison term and, in effect under Fraley, sentenced
Appellant "anew," this failure constitutes a notification error resulting in the
imposition of post-release control being void. We further note that because
Appellant's underlying convictions were two 3rd degree felonies that were
offenses of violence, and because the trial court was required to impose a
sentence from the range for the underlying offense, he should have been
subject to a mandatory three-year term of post-release control, not an
optional three-year term. R.C. 2967.28(B)(3). See State v. Nutt, 10th Dist.
Franklin No. 00AP-190, 2000 WL 1537898, *4 (reasoning that once a trial
Athens App. No. 16CA16 19
court imposes a prison term, rather than a more restrictive community
control sanction, post-release control was mandatory under R.C.
2967.28(B).)
{¶24} The trial court attempted to correct this error when Appellant's
judicial release was revoked and he was returned to prison. The record
reveals that during the hearing in which Appellant's judicial release was
revoked, the trial court and counsel engaged in a discussion regarding the
fact that Appellant had been previously sentenced to an optional three-year
term of post-release control rather than a mandatory term. After deciding
the error was a clerical one, the trial court sentenced Appellant to prison for
the time remaining on his previously-suspended sentence, which was
approximately two and a half months, and informed him he was now subject
to a mandatory three-year term of post-release control. This attempt by the
trial court to cure the error failed.
{¶25} As indicated above, judicial release is governed by a different
statute than community control. R.C. 2929.20, which governs judicial
release, provides in section (K) that when a court grants an offender judicial
release, it "shall reserve the right to reimpose the sentence that it reduced if
the offender violates the sanction." In State v. McConnell, 143 Ohio App. 3d
219, 757 N.E.2d 1187 (3rd Dist.2001), the court reasoned that R.C.
Athens App. No. 16CA16 20
2929.20(I) [now (K)] "permits the trial court merely to reinstate the reduced,
original prison term upon a violation of the conditions of early judicial
release." Further, in State v. Abrams, 7th Dist. Mahoning No. 15 MA 0217,
2016-Ohio-5581, ¶ 14, the court stated as follows:
"* * * according to the explicit language of the judicial release
statute, the trial court is bound by the specific term of
incarceration imposed at the original sentencing hearing. This
means the offender serves the remainder of the exact term of
incarceration that has only been suspended by the grant of
judicial release. R.C. 2929.20(K), see also State v. Mann, 3rd
Dist. No. 3-03-42, 2004-Ohio-4703, ¶ 13; State v. Darst, 170
Ohio App. 3d 482, 2007-Ohio-1151, 867 N.E.2d 882, ¶ 35.”
Because the trial court is limited to reimposing the sentence previously
imposed upon a violation of judicial release, it stands to reason that the court
cannot, at that time, correct a sentencing error that occurred when the
sentence was originally imposed. This is because the sentencing at a judicial
release revocation hearing is much more limited than the sentencing at a
community control revocation hearing, which was the situation in Fraley,
supra, where the court reasoned an offender is sentenced "anew."
{¶26} Further, and unfortunately, because Appellant has now already
completed his prison sentence, the trial court is without jurisdiction to correct
his sentence. "[O]nce an offender has completed the prison term imposed in
his original sentence, he cannot be subjected to another sentencing to correct
the trial court's flawed imposition of postrelease control." State v. Bloomer,
Athens App. No. 16CA16 21
122 Ohio St. 3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 70; citing State v.
Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 18, and State
v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, 884 N.E.2d 568, at
syllabus (overruled on other grounds by State v. Fischer, supra). “[W]here a
defendant has served his term of incarceration on the underlying sentence, the
parole authority lacks the authority to impose post-release control upon a
defendant and there can be no remand for resentencing.” State v. Biondo, 11th
Dist. Portage No. 2008-P-0028, 2008-Ohio-6560, ¶ 28; citing Hernandez v.
Kelly, 108 Ohio St. 3d 395, 844 N.E.2d 301, 2006-Ohio-126; State ex rel.
Cruzado v. Zaleski, 111 Ohio St. 3d 353, 856 N.E.2d 263, 2006-Ohio-5795.
Therefore, the post-release control portion of Appellant's is void and cannot
now be corrected.
{¶27} Accordingly, having found no merit to the assignment of error
raised by Appellant, it is overruled. However, having sua sponte found the
trial court's imposition of post-release control in this case to be void and the
trial court to be without jurisdiction to correct it because Appellant has already
completed his prison term, the judgment of the trial court must be vacated
with regard to the imposition of post-release control. We additionally order
Appellant discharged from further supervision by the Adult Parole Authority.
Athens App. No. 16CA16 22
State v. Biondo, supra, at ¶ 28 (a “defendant who has served his prison term is
entitled to release from post-release control.”).
JUDGMENT AFFIRMED IN
PART AND VACATED IN PART.
Athens App. No. 16CA16 23
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART AND
VACATED IN PART. Appellant and Appellee shall split costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Athens County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Concurs in Judgment Only.
For the Court,
BY: _____________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.