State v. Richard-Bey

2014 Ohio 2923

• Court: Ohio Court of Appeals
• Decided: June 27, 2014
• Docket: CT2014-0012, CT2014-0013
• Status: Published

Opinion

[Cite as State v. Richard-Bey, 2014-Ohio-2923.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : Case Nos. CT2014-0012 B.J. ELDER RICHARD-BEY : CT2014-0013 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeals from the Court of Common Pleas, Case Nos. CR2004-119A & CR2013-0037

JUDGMENT: Case No. CT2014-0012: Reversed Case No. CT2014-0013: Dismissed as Moot

DATE OF JUDGMENT: June 27, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RON WELCH B.J. ELDER RICHARD-BEY 27 North Fifth Street N.C.I. E-1 E-81 Zanesville, OH 43701 15708 McConnelsville Road Caldwell, OH 43724 Muskingum County, Case Nos. CT2014-0012 & CT2014-0013 2

Farmer, J.

{¶1} On July 16, 2004, appellant, B.J. Elder Richard-Bey, pled guilty to one

count of aggravated robbery in violation of R.C. 2911.01, one count of robbery in

violation of R.C. 2911.02, two counts of theft in violation of R.C. 2913.02, and one count

of having a weapon while under a disability in violation of R.C. 2923.13 (Case No.

CR2004-119A). By entry filed August 20, 2004, the trial court sentenced appellant to an

aggregate term of eight years in prison, and notified him of mandatory post-release

control for up to five years.

{¶2} On August 30, 2010, appellant was resentenced to address the sole issue

of post-release control pursuant to State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-

2462. Appellant was again sentenced to an aggregate term of eight years in prison,

and notified of mandatory post-release control for five years. The entry was filed on

September 7, 2010. The resentencing was affirmed on appeal. State v. Richard-Bey,

5th Dist. Muskingum No. CT2010-0051, 2011-Ohio-3676.

{¶3} On April 29, 2013, appellant pled guilty to one count of having a weapon

while under a disability in violation of R.C. 2923.13 (Case No. CR2013-0037). By

sentencing entry filed May 21, 2013, the trial court sentenced appellant to thirty months

in prison. The trial court also terminated appellant's post-release control in Case No.

CR2004-119A, and ordered the remaining time be imposed and served consecutively to

the thirty month sentence.

{¶4} On December 26, 2013, appellant filed a petition for postconviction relief

in both cases, seeking relief from sentencing. On January 13, 2014, appellant filed a

motion for vacation of void post release control violation in Case No. CR2013-0037, Muskingum County, Case Nos. CT2014-0012 & CT2014-0013 3

claiming the balance of his post release control imposed in said case was an error

because it was a nullity in Case No. CR2004-119A. By journal entries filed January 30,

2014, the trial court denied the petition and the motion.

{¶5} Appellant filed an appeal on the trial court's denial of his motion (Case No.

CT2014-0012). Thereafter, appellant filed an appeal on the trial court's denial of his

petition (Case No. CT2014-0013). Appellant also filed notices that no transcripts were

required. This matter is now before this court for consideration.

{¶6} Assignments of error in Case No. CT2004-0012 are as follows:

I

{¶7} "THE TRIAL COURT LACKED JURISDICTION TO IMPOSE THE

REMAIDER (SIC) OF DEFENDANTS VOID POST RELEASE CONTROL SACNTIONIN

(SIC) CASE NO:."

II

{¶8} "THE TRIAL COURT ERRED WHEN IT MADE FINDINGS IN THE

JOURNAL ENTRY NOT REFLECTED IN THE SENTENCING HEARING AND THUS

IMPROPERLY SENTENCED APPELLANT WITHOUT HIM BEING PRESENT IN

VIOLATION OF CRIMINAL RULE 43."

{¶9} Assignments of error in Case No. CT2004-0013 are as follows:

{¶10} "THE TRIAL COURT VIOLATED THE APPELLANT'S DUE PROCESS

RIGHTS WHEN IT DENIED AND THEREBY PREJUDICED HIM, HIS TIMELY FILED

POSTCONVICTION MOTION WITHOUT A HEARING AND WITHOUT STATING ANY

FINDINGS OF FACTS OR CONCLUSIONS OF LAW." Muskingum County, Case Nos. CT2014-0012 & CT2014-0013 4

{¶11} "THE TRIAL COURT ERRED TO THE HARM AND PREJUDICE OF THE

APPELLANT, AND THEREBY VIOLATED HIS DUE PROCESS RIGHTS WHEN IT

DENIED HIS POSTCONVICTION MOTION, AS IT DID SET FORTH PROPER

GROUNDS FOR THE RELIEF SOUGHT FOR THE VOID SENTENCE SO IMPOSED,

AND VIOLATIONS OF CONSTITUTIONAL RIGHTS IN NOT HONORING AN

ACCEPTED PROMISE/PLEA AGREEMENT."

{¶12} Preliminarily, we note these cases come to us on the accelerated

calendar. App.R. 11.1, which governs accelerated calendar cases, provides in pertinent

part the following:

(E) Determination and judgment on appeal

The appeal will be determined as provided by App. R. 11.1. It shall

be sufficient compliance with App. R. 12(A) for the statement of the reason

for the court's decision as to each error to be in brief and conclusionary

form.

The decision may be by judgment entry in which case it will not be

published in any form.

{¶13} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusory decision more quickly than in a case on

the regular calendar where the briefs, facts, and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Association, 11 Ohio App.3d 158 (10th Dist.1983). Muskingum County, Case Nos. CT2014-0012 & CT2014-0013 5

{¶14} This appeal shall be considered in accordance with the aforementioned

rules.

{¶15} Appellant claims the trial court erred in imposing the remainder of his post-

release control from his 2004 conviction because the 2004 sentencing entry was void

and therefore the trial court lacked jurisdiction. Appellant claims the trial court failed to

notify him of the consequences of violating post-release control. In addition, appellant

claims the trial court erred in denying his petition for postconviction relief without holding

a hearing.

{¶16} In sentencing appellant in Case No. CR2013-0037, the trial court stated in

its sentencing entry filed May 21, 2013 the following:

IT IS, THEREFORE, ORDERED that the defendant serve a prison

term of thirty (30) months. The defendant shall receive credit for time

served and shall pay the costs of this action.

The Court further notified the Defendant that "Post Release

Control" is optional in this case for up to three 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.

The Court further finds that the defendant is currently on post

release control in Muskingum County Common Pleas Court case number

CR2004-119A. This Court finds the defendant is no longer amenable to Muskingum County, Case Nos. CT2014-0012 & CT2014-0013 6

Post Release Control and, pursuant to ORC §2929.141, terminates the

same and ORDERS the remainder of the time remaining on post release

control be imposed and shall be served consecutively to the thirty (30)

month aggregate prison term imposed in the instant case.

{¶17} 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.

{¶18} Appellant finished serving his sentence in Case No. CR2004-119A.

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 Nos. CT2014-0012 & CT2014-0013 7

CR2004-119A and order the remaining time be imposed and served consecutively to

the thirty month sentence in Case No. CR2013-0037.

{¶19} Upon review, we find the trial court erred in denying appellant's motion for

vacation of void post release control violation.

{¶20} The assignments of error in Case No. CT2014-0012 are granted. The

assignments of error in Case No. CT2014-0013 relating to the petition for postconviction

relief which was based on the issues presented in appellant's motion for vacation of void

post release control violation are moot.

{¶21} We note only the portion in the May 21, 2013 sentencing entry dealing

with the imposition of the remaining time of post-release control from Case No.

CR2004-119A is reversed. The rest of the sentence is left intact.

{¶22} The judgment of the Court of Common Pleas of Muskingum County, Ohio

in Case No. CT2014-0012 is reversed. Case No. CT2014-0013 is dismissed as moot.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.

SGF/sg 610