State v. Murphy

[Cite as State v. Murphy, 2015-Ohio-3598.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. CT2015-0023
:
JOHN MURPHY :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2013-0261
JUDGMENT: REVERSED
DATE OF JUDGMENT ENTRY: September 1, 2015
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX STEPHEN P. HARWICK
MUSKINGUM COUNTY PROSECUTOR 250 East Broad St., Suite 140
Columbus, OH 43215
GERALD V. ANDERSON II
27 North Fifth St., P.O. Box 189
Zanesville, OH 43702-0189
Muskingum County, Case No.CT2015-0023 2
Delaney, J.
{¶1} Defendant-Appellant John Murphy appeals the April 14, 2015 judgment
entry of the Muskingum County Court of Common Pleas denying his motion to vacate
post-release control. Plaintiff-Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} On February 22, 2010, Defendant-Appellant John Murphy pleaded guilty
to two counts of gross sexual imposition, fourth-degree felonies in violation of R.C.
2907.02(A)(1). State v. Murphy, Case No. CR2010-0019. The trial court sentenced
Murphy to 18 months in prison on each count, to be served consecutively for an
aggregate prison term of three years. The sentencing entry stated as to post-release
control:
The Court further notified Defendant that “Post Release Control” is
mandatory in this case for five (5) years as well as the consequences for
violating conditions of post release control imposed by Parole Board under
Revised Code §2967.28. The Defendant is ordered to serve as part of this
sentence any term for violation of that post release control.
{¶3} Murphy completed his prison sentence and was released on July 11,
2012. He was placed on five years of post-release control.
{¶4} On November 27, 2013, Murphy entered a plea of guilty to one count of
failure to register (address change), a fourth-degree felony in violation of R.C.
2950.05(A). State v. Murphy, Case No. CR2013-0261. The trial court held a sentencing
hearing on January 13, 2014 and issued its sentencing entry on January 16, 2014. The
trial court sentenced Murphy to a prison term of eight months for the violation of R.C.
Muskingum County, Case No.CT2015-0023 3
2950.05(A). The trial court further found that Murphy was on post-release control at the
time of the commission of the offense. Pursuant to R.C. 2929.141, the trial court
terminated Murphy’s period of post-release control and ordered Murphy to serve the
remainder of the post-release control. The sentence was to be served consecutively to
the eight months.
{¶5} Murphy completed his eight-month prison term in September 2014.
{¶6} On April 6, 2015, Murphy filed a motion to vacate post-release control.
Murphy argued the post-release control imposed in the February 22, 2010 sentencing
entry was void because the trial court failed to set forth the penalties for violating post-
release control. The trial court denied the motion on April 14, 2015.
{¶7} It is from this judgment entry Murphy now appeals.
ASSIGNMENT OF ERROR
{¶8} Murphy raises one Assignment of Error:
{¶9} “THE TRIAL COURT ERRED BY DENYING MR. MURPHY’S MOTION
TO VACATE POSTRELEASE CONTROL. JOURNAL ENTRY (APRIL 14, 2015); R.C.
2929.19.”
ANALYSIS
{¶10} Murphy argues in his sole Assignment of Error that based on our decision
in State v. Richard-Bey, 5th Dist. Muskingum Nos. CT2014-0012, CT2014-0013, 2014-
Ohio-2923, the trial court erred in denying his motion to vacate post-release control. We
agree.
{¶11} In State v. Richard-Bey, the trial court sentenced appellant to eight years
in prison on July 16, 2004. The trial court notified the appellant of mandatory post-
Muskingum County, Case No.CT2015-0023 4
release control for up to five years. Id. at ¶ 1. The appellant was resentenced on August
30, 2010 to address the sole issue of post-release control pursuant to State v. Bloomer,
122 Ohio St. 3d 200, 2009-Ohio-2462, 909 N.E.2d 1254. The trial court sentenced the
appellant to an aggregate term of eight years in prison and notified him of mandatory
post-release control for five years. The sentencing entry was silent, however, as to the
consequences of violating post-release control. Id. at ¶ 17. The trial court did not inform
the appellant “that if he violated his supervision or a condition of postrelease control, the
parole board could impose a maximum prison term of up to one-half of the prison term
originally imposed” pursuant to R.C. 2929.19(B)(3)(e) [now R.C. 2929.19(B)(2)(e)]. Id.
{¶12} The appellant appealed the 2010 sentencing entry and we affirmed the
entry in State v. Richard-Bey, 5th Dist. Muskingum No. CT2010-Ohio-0051, 2011-Ohio-
3676.
{¶13} On April 29, 2013, the appellant pleaded guilty to one count of having a
weapon while under disability in violation of R.C. 2923.13. Id. at ¶ 3. By sentencing
entry filed May 21, 2013, the trial court sentenced the appellant to 30 months. The trial
court also terminated the appellant’s post-release control in the 2004 case and ordered
the remaining time be imposed and served consecutively to the 30-month sentence. Id.
{¶14} The appellant filed a petition for post-conviction relief in both the 2004 and
2013 cases, seeking relief from sentencing. Id. at ¶ 4. The appellant also filed a motion
for vacation of void post-release control violation in the 2013 case, claiming the balance
of his post-release control imposed in that case was an error because it was a nullity in
the 2004 case. The trial court denied the petition and motion and the appellant filed a
pro se appeal. Id.
Muskingum County, Case No.CT2015-0023 5
{¶15} On appeal, the appellant argued the trial court lacked jurisdiction to
impose the remainder of his void post release control sanction. We agreed. We stated:
The 2004 sentencing entry in Case No.CR2004–119A was corrected on
August 30, 2010 to address the sole issue of post-release control
pursuant to State v. Bloomer, 122 Ohio St. 3d 200, 2009–Ohio–2462. The
entry was filed on September 7, 2010. The entry notified appellant that
post-release control was mandatory for five years. However, the entry was
silent as to the consequences of violating post-release control. Appellant
was not “informed that if he violated his supervision or a condition of
postrelease control, the parole board could impose a maximum prison
term of up to one-half of the prison term originally imposed” pursuant to
R.C. 2929.19(B)(3)(e) [now R.C. 2929.19(B)(2)(e) ]. State v. Ketterer, 126
Ohio St. 3d 448, 2010–Ohio–3831, ¶ 77 (reviewing a nunc pro tunc entry)
(decided five days before appellant's resentencing). “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, paragraph one of the
syllabus. See also, State v. Billiter, 134 Ohio St. 3d 103, 2012–Ohio–5144.
State v. Richard-Bey, 2014-Ohio-2923, ¶ 17.
{¶16} The appellant had finished serving his sentence in the 2004 case.
“Because the trial court did not properly impose post-release control in its September 7,
2010 entry, the trial court cannot terminate appellant's post-release control in Case No.
Muskingum County, Case No.CT2015-0023 6
CR2004–119A and order the remaining time be imposed and served consecutively to
the thirty month sentence in Case No. CR2013–0037.” State v. Richard-Bey, 2014-
Ohio-2923, ¶ 18. We found the trial court erred in denying the appellant’s motion for
vacation of void post-release control violation. Id. at ¶ 19.
{¶17} We find Richard-Bey to be directly on point to the facts of the present
case. In the present case, the trial court did not inform Murphy in the February 22, 2010
sentencing entry that if he violated his supervision or a condition of post-release control,
the parole board could impose a maximum prison term of up to one-half of the prison
term originally imposed pursuant to R.C. 2929.19(B)(2)(e). The February 22, 2010
sentence in Case No. CR2010-0019 does not include a statutorily mandated term of
post-release control and is void. The trial court cannot terminate Murphy’s post-release
control in CR2010-0019 and order the remaining time be imposed and served
consecutively to the eight month sentence in Case No. CR2013-0261.
{¶18} Based on this Court’s decision in Richard-Bey, we find the trial court erred
in denying Murphy’s motion to vacate post-release control. Murphy’s sole Assignment of
Error is sustained.
Muskingum County, Case No.CT2015-0023 7
CONCLUSION
{¶19} The only portion of the January 16, 2014 sentencing entry dealing with the
imposition of the remaining time of post-release control from Case No. CR2010-0019 is
reversed. The rest of the sentence in Case No. CR2013-0261 is left intact.
{¶20} The judgment of the Muskingum County Court of Common Pleas is
reversed.
By: Delaney, J.,
Wise, P.J. and
Baldwin, J., concur.