State v. Hendricks , 2017 Ohio 259 ( 2017 )

[Cite as State v. Hendricks, 2017-Ohio-259.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. CT2016-0010
:
CHRISTOPHER HENDRICKS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No. CR
2015-0161
JUDGMENT: AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED FOR
RESENTENCING
DATE OF JUDGMENT ENTRY: January 18, 2017
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX RICHARD L. CROSBY IIII
MUSKINGUM CO. PROSECUTOR RENDIGS, FRY, KIELY & DENNIS LLP
GERALD V. ANDERSON II 600 Vine Street, Ste. 2650
27 North Fifth St., P.O. Box 189 Cincinnati, OH 45202
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2016-
0010 2
Delaney, J.
{¶1} Appellant Christopher Hendricks appeals from the January 13, 2016 Entry
of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose when appellant and co-defendant Randall Cremeans
entered a house shared by Brent Mayle and Tameka Alexander.1 The defendants sought
Mayle and items of appellant’s that had allegedly been stolen. Present were Alexander,
several adult friends, and her two minor children. The two defendants drew firearms and
threatened Alexander into calling Mayle and telling him to come home. Appellant put his
gun to Alexander’s pregnant stomach and to her two minor children to convince her to
reveal Mayle’s whereabouts. Appellant threatened Mayle that if he didn’t come home, he
would find “seven stinking bodies.” The adult witnesses were tied up and their cell phones
seized. Appellant wanted to take the victims with them as they left the scene, but
Cremeans told him there wasn’t enough room and suggested they take the victims’ I.D.s
instead to identify “snitches” later.
{¶3} Appellant was charged by indictment as follows: Count I, aggravated
burglary pursuant to R.C. 2911.11(A)(2), a felony of the first degree; Counts II through V,
kidnapping pursuant to R.C. 2905.01(A)(2), all felonies of the first degree; Counts VI
through VIII, kidnapping pursuant to R.C. 2905.01(A)(3), all felonies of the first degree;
Counts IX through XIII, aggravated robbery pursuant to R.C. 2911.01(A)(1), all felonies
of the first degree; and Count XIV, having weapons while under disability pursuant to R.C.
1The co-defendant’s direct appeal from his convictions and sentence is State v.
Cremeans, 5th Dist. Muskingum No. CT2015–0062, 2016-Ohio-7930.
Muskingum County, Case No. CT2016-
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2923.13(A)(2), a felony of the third degree. Counts I through XIII are accompanied by
firearm specifications pursuant to R.C. 2941.145.
{¶4} Appellant entered pleas of not guilty and moved for a change of venue. The
motion was later withdrawn.
{¶5} On November 16, 2015, appellant appeared before the trial court and
changed his pleas of not guilty to ones of guilty as charged in the indictment. The trial
court deferred sentencing pending a pre-sentence investigation. On January 12, 2016,
appellant was sentenced to an aggregate prison term of 30 years.
{¶6} Appellant now appeals from the trial court’s sentencing entry of January 13,
2016.
{¶7} Appellant raises six assignments of error:
ASSIGNMENTS OF ERROR
{¶8} “I. THE SENTENCE IS DISPROPORTIONATE/INCONSISTENT
CONTRARY TO R.C. 2929.11(B).”
{¶9} “II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN
HIS ATTORNEY FAILED TO FILE A MOTION TO SUPPRESS THE ALLEGED VICTIM’S
IDENTIFICATION AS THE STATE CLEARLY VIOLATED THE MINIMUM
REQUIREMENTS OF A PHOTO IDENTIFICATION SET FORTH IN R.C. 2933.03.
{¶10} “III. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN
Muskingum County, Case No. CT2016-
0010 4
HIS ATTORNEY FAILED TO ADVISE HIM OF THE MINIMUM AND MAXIMUM
PENALTIES HE FACED UPON PLEADING GUILTY.”
{¶11} “IV. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND
FEDERAL CONSTITUTIONAL RIGHTS AND CRIM.R. 11 BY FAILING TO ENSURE
THAT HE UNDERSTOOD THE MAXIMUM PENALTIES HE FACED UPON PLEADING
GUILTY.”
{¶12} “V. APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE
COURT DID NOT PROPERLY ADVISE DEFENDANT CONCERNING COMPULSORY
PROCESS.”
{¶13} “VI. APPELLANT’S SENTENCE SHOULD BE VOIDED AS THE COURT
FAILED TO INCLUDE THE DETAILS OF POST RELEASE CONTROL INTO THE
SENTENCING ENTRY AS REQUIRED BY R.C. 2929.19(B)(3).”
ANALYSIS
I.
{¶14} In his first assignment of error, appellant argues his sentence is
disproportionate when compared to that of his co-defendant. We disagree.
{¶15} Appellant summarily argues his sentence is disproportionate to the severity
of his conduct when compared with the conduct of Cremeans.2 We note both defendants
claimed the other was more culpable; in the instant case, despite appellant’s disavowals
of terrorizing the victims, he pled guilty to the offenses. Appellee’s recitation of the facts
established appellant was at least as culpable as Cremeans. A felony sentence should
2 Appellant’s co-defendant also received an aggregate term of 30 years following his
convictions after trial by jury. Cremeans, supra, 2016-Ohio-7930, ¶ 29.
Muskingum County, Case No. CT2016-
0010 5
be proportionate to the severity of the offense committed so as not to “shock the sense
of justice in the community.” State v. Chaffin, 30 Ohio St. 2d 13, 17, 282 N.E.2d 46 (1972);
R.C. 2929.11(B). A defendant alleging disproportionality in felony sentencing has the
burden of producing evidence to “indicate that his sentence is directly disproportionate to
sentences given to other offenders with similar records who have committed these
offenses * * *.” State v. Ewert, 5th Dist. Muskingum No. CT2012–0002, 2012-Ohio-2671,
2012 WL 2196326, ¶ 33, citing State v. Breeden, 8th Dist. Cuyahoga No. 84663, 2005-
Ohio-510, 2005 WL 315370, ¶ 81.
{¶16} Appellant has not provided any evidence his sentence is constitutionally
disproportionate. Instead, he argues no one was harmed and the victims lied. We find the
conduct alleged here, combined with appellant's significant criminal record, support the
trial court's sentence. We reject appellant’s comparison of the instant case with State v.
Moore, in which one co-defendant pled guilty to three charged offenses and was
sentenced to 30 years, when the second co-defendant went to trial, was convicted, and
was sentenced to consecutive terms totaling 27 years. 8th Dist. Cuyahoga No. 99788,
2014-Ohio-5135, 24 N.E.3d 1197, cause dismissed, 141 Ohio St. 3d 1433, 2015-Ohio-
168, 23 N.E.3d 1178, and appeal not allowed, 142 Ohio St. 3d 1475, 2015-Ohio-2104, 31
N.E.3d 654. In Moore, the appellate court determined the actions of the former were
“more egregious" than the actions of the latter, “so the large disparity in the sentences
raise[d] questions for appellate review.” Id. at ¶ 9. In the instant case, the record does
not support appellant’s assertion that he is less culpable than Cremeans.
Muskingum County, Case No. CT2016-
0010 6
{¶17} Appellant also ignores a fact significant to the trial court at sentencing:
appellant committed these crimes while awaiting sentencing upon a felony conviction of
aggravated assault in Franklin County.
{¶18} The trial court also referred to the P.S.I. repeatedly in sentencing appellant
but appellant did not include the P.S.I. in the record. In State v. Untied, 5th Dist.
Muskingum No. CT97–0018, 1998 WL 401768, *8 (Mar. 5, 1998), we noted appellate
review contemplates that the entire record be presented and if portions of the transcript
necessary to resolve issues are not included, we must presume regularity in the trial court
proceedings and affirm. The P.S.I. report could have been submitted under seal for our
review. Id. Absent the cited information and considering “the trial court's findings on the
record, we cannot say appellant's sentence was against the manifest weight of the
evidence or ‘contrary to law.’” State v. Henderson, 5th Dist. Stark No. 2004–CA–00215,
2005-Ohio-1644, 2005 WL 774039, ¶ 48, citing State v. Wallace, 5th Dist. Delaware No.
03–CA–A–07–043, 2004-Ohio-1694, 2004 WL 670684 and State v. Mills, 5th Dist.
Ashland No. 03–COA–001, 2003-Ohio-5083, 2003 WL 22208740.
{¶19} Appellant’s first assignment of error is overruled.
II., III.
{¶20} Appellant’s second and third assignments of error are related and will be
considered together. Appellant argues he was denied effective assistance of trial counsel
because counsel should have filed a motion to suppress and failed to advise him of the
minimum and maximum penalties. We disagree.
{¶21} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Muskingum County, Case No. CT2016-
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Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). In assessing such claims,
“a court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158
(1955).
{¶22} “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the
wide range of professionally competent assistance.” Id. at 690.
{¶23} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
{¶24} First, appellant argues trial counsel was ineffective in failing to file a motion
to suppress the photo line-up identification of appellant by the victims, arguing the photo
line-up did not comply with R.C. 2933.83. Failure to file a suppression motion does not
per se constitute ineffective assistance of counsel. State v. Boyd, 5th Dist. Richland No.
12CA23, 2013–Ohio–1333, ¶ 24, citing State v. Madrigal, 87 Ohio St. 3d 378, 389, 2000–
Ohio–0448. Counsel can only be found ineffective for failing to file a motion to suppress
if, based on the record, the motion would have been granted. State v. Lavelle, 5th Dist.
No. 07 CA 130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–CA–88,
Muskingum County, Case No. CT2016-
0010 8
2007–Ohio–3009, at ¶ 86. Furthermore, “[w]here the record contains no evidence which
would justify the filing of a motion to suppress, the appellant has not met his burden of
proving that his attorney violated an essential duty by failing to file the motion.” State v.
Drummond, 111 Ohio St. 3d 14, 41, 2006–Ohio–5084, 854 N.E.2d 1038, quoting State v.
Gibson, 69 Ohio App. 2d 91, 95, 430 N.E.2d 954 (8th Dist.1980). See also, State v. Suiste,
5th Dist. No. 2007 CA 00252, 2008–Ohio–5012.
{¶25} To satisfy the prejudice prong of the Strickland test, a defendant must
additionally demonstrate that there was a reasonable probability that the motion to
suppress would have been granted. See, e.g., State v. Fair, 2nd Dist. No. 24120, 2011–
Ohio–3330, ¶ 27. See also Kimmelman at 390–391. Trial counsel's decision not to file a
motion to suppress may be a matter of trial strategy, including counsel's reasonable
assessment of whether such a motion is likely to succeed and recognition that filing a
motion to suppress has risks. Madrigal, 87 Ohio St. 3d at 389, 721 N.E.2d 52.
{¶26} In the instant case, based on the evidence in the record, appellant cannot
show trial counsel's failure to file a motion to suppress any photo line-up constitutes a
deficiency. This case was resolved with a guilty plea and the record contains no facts in
support of appellant’s argument here. We are unable to find any reference in the record
to a photo line-up or any suggestion of irregularity, and appellant does not support his
argument with reference to the record. App.R. 16(A)(7).
{¶27} We also must presume a properly licensed attorney executes his or her
duties in an ethical and competent manner. See State v. Smith, 17 Ohio St. 3d 98, 100,
477 N.E.2d 1128 (1985). Under the circumstances presented, we are not inclined to
overcome this presumption with the limited information in the appellate record before us.
Muskingum County, Case No. CT2016-
0010 9
See, State v. Sanders, 5th Dist. Ashland No. 15-COA-33, 2016-Ohio-7204, ---N.E.3d---,
¶ 34.
{¶28} Second, appellant argues he received ineffective assistance of defense trial
counsel because he was not “properly advised of the minimum and maximum potential
criminal sanctions which could be imposed as a result of his guilty plea.” This argument
apparently rests upon facts outside the record. Appellant argues he expressed “extreme
confusion” at sentencing and infers he was not properly advised of the potential
sentences for his convictions. Appellant does not direct us to any evidence of “extreme
confusion” in the record, and we note that the trial court advised appellant of the potential
minimum and maximum penalties at the change-of-plea hearing. Appellant summarily
concludes counsel was ineffective in failing to fully advise him of the consequences of his
plea, but the record does not support the argument.
{¶29} His inference of ineffective assistance premised upon counsel’s alleged
failure to properly advise him relies upon facts outside the record. See, State v. Coles,
5th Dist. Delaware No. 15CAA010001, 2015-Ohio-4159. A claim requiring proof that
exists outside of the trial record cannot appropriately be considered on a direct appeal.
State v. Hartman, 93 Ohio St. 3d 274, 299, 754 N.E.2d 1150 (2001) (if establishing
ineffective assistance of counsel requires proof outside the record, then such claim is not
appropriately considered on direct appeal). We conclude appellant's argument is more
appropriate for review in post-conviction proceedings than on direct appeal because the
facts in support are outside the record before us. See, State v. Lambert, 5th Dist. Richland
No. 97–CA–34–2, 1999 WL 173966, *2 (Feb. 17, 1999); State v. Hamlett, 5th Dist.
Richland No. 03 CA 34, 2004–Ohio–38, ¶ 11; State v. Lawless, 5th Dist. Muskingum No.
Muskingum County, Case No. CT2016-
0010 10
CT2000–0037, 2002–Ohio–3686, 2002 WL 1585846, *7, citing State v. Cooperrider, 4
Ohio St. 3d 226, 228, 448 N.E.2d 452 (1983). Post-conviction relief, rather than a direct
appeal, is a means by which a defendant may bring claims of constitutional violations
based upon matters outside the record. State v. Kreischer, 5th Dist. Perry No. 01–CA–
04, 2002–Ohio–357, 2002 WL 106683, *3, citing State v. Perry, 10 Ohio St. 2d 175, 226
N.E.2d 104 (1967), paragraphs four and nine of the syllabus.
{¶30} Appellant has not demonstrated ineffective assistance of counsel. His
second and third assignments of error are overruled.
IV.
{¶31} In his fourth assignment of error, appellant argues the trial court improperly
advised him of the maximum potential penalties for his convictions and of the possibility
of consecutive sentences. We disagree.
{¶32} Again, appellant points to no evidence in the record in support of his
argument that the trial court’s advisements were in error or insufficient. Instead, he points
to his own statement at sentencing:
[APPELLANT:] * * * *. I pled guilty because I didn’t want to
go down for 120 years. That was my understanding, if I took it to
trial, I would get 120 years. * * * *.
(T. Sentencing, 8.)
{¶33} Appellant suggests the trial court did not comply with Crim.R. 11(C)(2) in
accepting his plea. That section details the trial court's duty in a felony plea hearing to
address the defendant personally, to convey certain information to such defendant, and
prohibits acceptance of a guilty plea or no contest without performing these duties. State
Muskingum County, Case No. CT2016-
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v. Holmes, 5th Dist. Fairfield No. 09 CA 70, 2010–Ohio–428, ¶ 10. Crim.R. 11(C)(2)(a)
states the trial court must determine “ * * * that the defendant is making the plea
voluntarily, with the understanding of the nature of the charges and of the maximum
penalty involved, and if applicable, that the defendant is not eligible for probation or for
the imposition of community control sanctions at the sentencing hearing.” The Rule
requires guilty pleas to be made knowingly, intelligently and voluntarily. Although literal
compliance with Crim. R. 11 is preferred, the trial court need only “substantially comply”
with the rule when dealing with the non-constitutional elements of Crim.R. 11(C). State
v. Dunham, 5th Dist. No. 2011–CA–121, 2012–Ohio–2957, ¶ 11 citing State v. Ballard,
66 Ohio St. 2d 473, 475, 423 N.E.2d 115 (1981), citing State v. Stewart, 51 Ohio St. 2d 86,
364 N.E.2d 1163 (1977). In State v. Griggs, 103 Ohio St. 3d 85, 2004–Ohio–4415, 814
N.E.2d 51, at ¶ 12, the Ohio Supreme Court noted the following test for determining
substantial compliance with Crim.R. 11:
Though failure to adequately inform a defendant of his
constitutional rights would invalidate a guilty plea under a
presumption that it was entered involuntarily and unknowingly, failure
to comply with non constitutional rights will not invalidate a plea
unless the defendant thereby suffered prejudice. State v. Nero, [56
Ohio St. 3d 106, 108, 564 N.E.2d 474 (1990)]. The test for prejudice
is ‘whether the plea would have otherwise been made.’ Id.
{¶34} Under the substantial-compliance standard, we review the totality of
circumstances surrounding appellant’s plea and determine whether he subjectively
understood the effect of his plea. See, State v. Sarkozy, 117 Ohio St. 3d 86, 2008–Ohio–
Muskingum County, Case No. CT2016-
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509, 881 N.E.2d 1224 at ¶ 19–20; State v. Alexander, 5th Dist. Stark No. 2012CA00115,
2012–Ohio–4843, appeal not allowed, 134 Ohio St. 3d 1485, 2013–Ohio–902, 984 N.E.2d
29.
{¶35} In the instant case, our review of the plea hearing reveals the trial court
advised appellant of his constitutional rights, the potential penalties for each offense, and
the possibility of postrelease control. Further, the trial court inquired as to the
voluntariness of appellant's plea of guilty. In short, the trial court complied with Crim.R.
11. Appellant does not suggest what more the trial court should have done to explain the
potential penalties. Instead, the record demonstrates the trial court had a meaningful
dialogue with appellant, fully apprising him of the rights he was waiving. See, State v.
Tillman, 6th Dist. Huron No. H–02–004, 2004–Ohio–1967, ¶ 20. The court engaged
appellant in a personal inquiry as to whether he understood the plea agreement and its
consequences. Appellant was represented throughout the hearing. Nothing in the record
indicates that appellant was under the influence of any drug or other substance which
would prohibit his understanding of the court's questions. The record indicates that he
understood the terms of the agreement and entered an intelligent, knowing and voluntary
plea.
{¶36} Moreover, there is no evidence in the record showing that if the court had
advised appellant any differently appellant would not have pled guilty and instead would
have insisted on going to trial. Thus we find no evidence appellant was prejudiced and he
does not point to any such evidence. See, Sergent, supra, 2015–Ohio–2603 at ¶ 53.
Muskingum County, Case No. CT2016-
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{¶37} Appellant's fourth assignment of error is found to be without merit. See,
State v. Broyles, 5th Dist. Ashland No. 14–COA–037, 2015–Ohio–4778, ¶¶ 10–13; State
v. Reed, 5th Dist. Ashland No. 14–COA–010, 2015–Ohio–3534, ¶ 12.
{¶38} Appellant’s fourth assignment of error is overruled.
V.
{¶39} In his fifth assignment of error, appellant argues the trial court improperly
advised him of his right to compulsory process. We disagree.
{¶40} Appellant points to the following statement by the trial court: “You are giving
up your right to use the power of this Court to subpoena or compel witnesses to come in
to court and testify on your behalf?” (T. Plea, 16.) Appellant equates this statement with
the trial court’s insufficient colloquy in In State v. Cummings, 8th Dist. Cuyahoga No.
83759, 2004-Ohio-4470, ¶ 5. In Cummings, the trial court informed a defendant he had
“the right to call witnesses to appear on [his] behalf” and he also had “the right to confront
and ask questions of witnesses.” The appellate court found this explanation insufficient
to advise the defendant of the right to compulsory process because “this implied that the
defendant could present only witnesses he was able to secure through his own efforts.”
State v. Parks, 8th Dist. Cuyahoga No. 86312, 2006-Ohio-1352, ¶ 16.
{¶41} In the instant case, in the context of the entire colloquy which appellant
omits, we find no such implication. Instead, the trial court adequately advised appellant
of his right to compulsory process by explaining the meaning in reasonably intelligible
terms, despite the absence of the term “compulsory process.” A trial court must strictly
comply with those provisions of Crim. R. 11(C) which relate to the accused's waiver of
constitutional rights, including the right to a trial by jury, the right to confront one's
Muskingum County, Case No. CT2016-
0010 14
accusers, the privilege against self-incrimination, and the right to compulsory process of
witnesses. However, strict compliance does not require a rote recitation of the exact
language of Crim. R. 11(C). “Rather, the focus, upon review, is whether the record shows
that the trial court explained or referred to the right in a manner reasonably intelligible to
that defendant.” State v. Tripplet, 5th Dist. Stark No. 2001CA00061, unreported, 2001
WL 1251636, *2.
{¶42} Appellant’s fifth assignment of error is overruled.
VI.
{¶43} In his sixth assignment of error, appellant argues the trial court did not
comply with R.C. 2929.19(B)(2) and failed to properly include the details of post-release
control in the sentencing entry, therefore his sentences should be voided.3 We agree.
{¶44} On the record at the sentencing hearing, the trial court notified appellant of
the terms of post-release control and the consequences of violation. (T. Sentencing, 17-
18). In the sentencing entry, the trial court wrote in pertinent part:
* * * *.
The Court further notified the 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 the 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.
3As appellee points out, appellant referenced R.C. 2929.19(B)(3) in his argument but
substantively refers to R.C. 2929.19(B)(2).
Muskingum County, Case No. CT2016-
0010 15
* * * *.
Entry, January 13, 2016.
{¶45} Appellant contends the trial court failed to properly notify him of the
consequences of violating post-release control.
{¶46} In State v. Richard–Bey, 5th Dist. Muskingum Nos. CT2014–0012,
CT2014–0013, 2014–Ohio–2923, this Court considered similar post-release control
language as that used in the present sentencing entry. The trial court in Richard-Bey
sentenced appellant to eight years in prison on July 16, 2004. The trial court notified the
appellant of mandatory post-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, 909
N.E.2d 1254. The trial court did not inform the appellant “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)(3)(e) [now R.C. 2929.19(B)(2)(e)]. Id.
{¶47} 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.
{¶48} 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
Muskingum County, Case No. CT2016-
0010 16
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.
{¶49} 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.
{¶50} 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, 909 N.E.2d 1254,
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 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)(3)(e) [now R.C. 2929.19(B)(2)(e) ].
State v. Ketterer, 126 Ohio St. 3d 448, 935 N.E.2d 9, 2010–Ohio–3831, ¶
77 (reviewing a nunc pro tunc entry) (decided five days before appellant's
Muskingum County, Case No. CT2016-
0010 17
resentencing). “A sentence that does not include the statutorily mandated
term of post-release 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, 942
N.E.2d 332, 2010–Ohio–6238, paragraph one of the syllabus. See also,
State v. Billiter, 134 Ohio St. 3d 103, 980 N.E.2d 960, 2012–Ohio–5144.
State v. Richard–Bey, 2014–Ohio–2923, ¶ 17.
{¶51} 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. 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.
{¶52} 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 appellant in the January 13, 2016
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. The sentencing entry thus does not include
a statutorily-mandated term of post-release control and is void. Accord State v. Kepler,
5th Dist. Muskingum No. CT2015-0021, 2015-Ohio-3291; State v. Grimes, 5th Dist.
Muskingum No. CT2015-0026, 2015-Ohio-3497; State v. Murphy, 5th Dist. Muskingum
No. CT2015-0023, 2015-Ohio-3598; State v. Moore, 5th Dist. Muskingum No. CT2015-
Muskingum County, Case No. CT2016-
0010 18
0028, 2015-Ohio-5514. Contra State v. Jaryd Moore, 5th Dist. Muskingum No. CT2015-
0027, 2015-Ohio-3435.
{¶53} Based on our decision in Richard–Bey, we find the trial court’s language in
the sentencing entry does not adequately comply with R.C. 2929.19 (B)(2). Appellant’s
sixth assignment of error is sustained and this matter is remanded for resentencing.
CONCLUSION
{¶54} Appellant’s assignments of error numbers one through five are overruled.
Appellant’s sixth assignment of error is sustained. The judgment of the Muskingum
County Court of Common Pleas is affirmed in part and reversed in part and this matter is
remanded for further proceedings in accord with this opinion.
By: Delaney, J. and
Hoffman, J., concur.
Farmer, P.J., dissents.
Muskingum County, Case No. CT2016-
0010 19
Farmer, P.J., dissenting.
{¶1} I respectfully dissent from the majority’s view on the authority of this court’s
opinion in State v. Jayrd Moore, 5th Dist. Muskingum No. CT2015-0027, 2015-Ohio-3435.
HON. SHEILA G. FARMER