[Cite as State v. Wolfe, 2016-Ohio-5607.]
COURT OF APPEALS LICKING 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. 16-CA-21 DAVID A. WOLFE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 2013CR00327
JUDGMENT: Reversed and Vacated
DATE OF JUDGMENT ENTRY: August 22, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT ERIC M. HEDRICK Licking County Proseuctor Assistant State Public Defender CHRISTOPHER REAMER 250 East Broad Street, Suite 1400 Assistant Prosecutor Columbus, Ohio 43215 20 S. Second Street Newark, Ohio 43055 Licking County, Case No. 16-CA-21 2
Hoffman, J.
{¶1} Defendant-appellant David A. Wolfe appeals the March 8, 2016 Judgment
Entry entered by the Licking County Court of Common Pleas, which denied his motion to
vacate his judicial-sanction sentence. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On December 7, 2009, Appellant was sentenced to an aggregate 21 month
term of incarceration for various offenses, including one count of robbery, in violation of
R.C. 2911.02(A)(3), a third degree felony, in Licking County Court of Common Pleas Case
No. 09 CR 508. As part of his sentence, the trial court imposed a three year period of
post-release control.
{¶3} On March 2, 2010, Appellant was sentenced to a term of incarceration of
11 months for possession of crack cocaine, a felony of the fifth degree, in Licking County
Court of Common Pleas Case No. 09 CR 435. The trial court ordered the sentence in
Case No. 09 CR 435 to be served consecutively to the sentence in Case No. 09 CR 508.
The sentencing entry in Case No. 09 CR 435 advised Appellant he would be subject to a
three year period of post-release control.
{¶4} Appellant completed his prison sentences in both cases and was released
from prison on May 11, 2012. Appellant was then placed on three years of post-release
control.
{¶5} On June 6, 2013, the Licking County grand jury indicted Appellant in Licking
County Court of Common Pleas Case No. 13 CR 327, on two misdemeanor traffic
offenses as well as failure to comply with the order or signal of a police officer, in violation
of R.C. 2912.33(B)(C)(5)(a)(ii), a felony of the third degree. The state subsequently filed Licking County, Case No. 16-CA-21 3
a notice with the trial court, advising Appellant was subject to sentence enhancement for
a violation of his post-release control. Attached to the notice was a document prepared
by the Ohio Department of Rehabilitation and Corrections, which indicated Appellant was
subject to three years of his post-release control for his robbery conviction in Case No.
09 CR 508.
{¶6} Appellant executed an admission of guilt form to the charges in Case No.
13CR327 on August 7, 2013. The form included language informing Appellant if he was
presently on felony probation or parole his plea to the charge could result in an additional
consecutive sentence. Appellant sent a letter to the trial court on August 20, 2013,
requesting the trial court view a videotape related to the case. In his letter, Appellant
stated, “[t]he prosecutor told my lawyer he was going to give me two years and two years
P.R.C. ***”. The trial court treated the letter as a motion to withdraw his guilty plea and
set the matter for hearing on September 18, 2013, the date on which the trial court had
originally scheduled sentencing.
{¶7} On September 18, 2013, Appellant appeared before the trial court and
withdrew his motion to withdraw his guilty plea. The trial court found Appellant guilty as
charged and sentenced him to an aggregate term of imprisonment of two years, and
ordered the sentence to be served consecutive to Appellant’s period of post-release
control, 599 days. Appellant did not file an appeal from the sentence.
{¶8} On October 19, 2015, Appellant filed a motion to vacate the 599 day judicial-
sanction sentence, arguing the language employed by the trial court in the 2009
sentencing entries in Case No. 09 CR 508 and 09 CR 435 was deficient, rendering his
post-release control sanctions therein void. The state filed a memorandum contra, Licking County, Case No. 16-CA-21 4
arguing the language in the 2009 sentencing entries provided Appellant with adequate
notice regarding post-release control; therefore, the sanctions were not void and
Appellant should have raised any challenge thereto on direct appeal.
{¶9} Via Judgment Entry filed March 8, 2016, the trial court denied Appellant’s
motion to vacate. It is from this judgment entry Appellant appeals, raising as his sole
assignment of error:
{¶10} “I. THE TRIAL COURT ERRED BY DENYING MR. WOLFE’S MOTION TO
VACATE HIS VOID JUDICIAL-SANCTION SENTENCE. R.C. 2929.19(B)(2); R.C.
2967.28. (MOT. TO VACATE JUDICIAL-SANCTION SENTENCE, OCT. 19, 2015, EX. A-
E.)”
{¶11} This case has been assigned to the Court's accelerated calendar docket
according to Ohio App.R. 11 and this Court's Loc.R. 6(B); therefore, pursuant to Ohio
App.R. 11 governing accelerated calendar cases, “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 conclusionary form.”
{¶12} R.C. 2929.19(B)(2)(e) provides, at the sentencing hearing, the trial court
must notify the offender if a period of supervision is imposed following his or her release
from prison, and if the offender violates that supervision, then the parole board may
impose a prison term of up to one-half of the prison term originally imposed on the
offender. The trial court must notify the offender of the mandatory nature of the term of
post-release control and the length of that mandatory term. State v. Bloomer, 122 Ohio
St.3d 200, 2009–Ohio–2462, 909 N.E.2d 1254, ¶ 69. The trial court must also include Licking County, Case No. 16-CA-21 5
this notice in the sentencing entry. State v. Singleton, 124 Ohio St.3d 173, 2009–Ohio–
6434, 920 N.E. 2d 958, ¶ 11, 22.
{¶13} In State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, the Ohio Supreme
Court held, in pertinent part, “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.”
Id., at paragraph one of the syllabus. See, also, State v. Jordan, 104 Ohio St.3d 21, 2004–
Ohio–6085. In light of this voidness doctrine, where a prior sentence does not include a
statutorily mandated term of post-release control in the sentencing entry, the trial court
cannot order the remaining PRC time imposed upon a new violation and sentence. See
State v. Murphy, 5th Dist. Muskingum No. CT2013–0028, 2014–Ohio–323, ¶ 7.
{¶14} In its December 7, 2009 Judgment Entry in Case No. 09 CR 508, the trial
court stated:
The Court informed the defendant that upon release from prison he
would be subject to postrelease control for 3 years unless sooner
terminated by the Adult Parole Authority. The Court further notified the
defendant that if he violates the conditions of postrelease control imposed
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[Cite as State v. Wolfe, 2016-Ohio-5607.]
COURT OF APPEALS LICKING 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. 16-CA-21 DAVID A. WOLFE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 2013CR00327
JUDGMENT: Reversed and Vacated
DATE OF JUDGMENT ENTRY: August 22, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT ERIC M. HEDRICK Licking County Proseuctor Assistant State Public Defender CHRISTOPHER REAMER 250 East Broad Street, Suite 1400 Assistant Prosecutor Columbus, Ohio 43215 20 S. Second Street Newark, Ohio 43055 Licking County, Case No. 16-CA-21 2
Hoffman, J.
{¶1} Defendant-appellant David A. Wolfe appeals the March 8, 2016 Judgment
Entry entered by the Licking County Court of Common Pleas, which denied his motion to
vacate his judicial-sanction sentence. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On December 7, 2009, Appellant was sentenced to an aggregate 21 month
term of incarceration for various offenses, including one count of robbery, in violation of
R.C. 2911.02(A)(3), a third degree felony, in Licking County Court of Common Pleas Case
No. 09 CR 508. As part of his sentence, the trial court imposed a three year period of
post-release control.
{¶3} On March 2, 2010, Appellant was sentenced to a term of incarceration of
11 months for possession of crack cocaine, a felony of the fifth degree, in Licking County
Court of Common Pleas Case No. 09 CR 435. The trial court ordered the sentence in
Case No. 09 CR 435 to be served consecutively to the sentence in Case No. 09 CR 508.
The sentencing entry in Case No. 09 CR 435 advised Appellant he would be subject to a
three year period of post-release control.
{¶4} Appellant completed his prison sentences in both cases and was released
from prison on May 11, 2012. Appellant was then placed on three years of post-release
control.
{¶5} On June 6, 2013, the Licking County grand jury indicted Appellant in Licking
County Court of Common Pleas Case No. 13 CR 327, on two misdemeanor traffic
offenses as well as failure to comply with the order or signal of a police officer, in violation
of R.C. 2912.33(B)(C)(5)(a)(ii), a felony of the third degree. The state subsequently filed Licking County, Case No. 16-CA-21 3
a notice with the trial court, advising Appellant was subject to sentence enhancement for
a violation of his post-release control. Attached to the notice was a document prepared
by the Ohio Department of Rehabilitation and Corrections, which indicated Appellant was
subject to three years of his post-release control for his robbery conviction in Case No.
09 CR 508.
{¶6} Appellant executed an admission of guilt form to the charges in Case No.
13CR327 on August 7, 2013. The form included language informing Appellant if he was
presently on felony probation or parole his plea to the charge could result in an additional
consecutive sentence. Appellant sent a letter to the trial court on August 20, 2013,
requesting the trial court view a videotape related to the case. In his letter, Appellant
stated, “[t]he prosecutor told my lawyer he was going to give me two years and two years
P.R.C. ***”. The trial court treated the letter as a motion to withdraw his guilty plea and
set the matter for hearing on September 18, 2013, the date on which the trial court had
originally scheduled sentencing.
{¶7} On September 18, 2013, Appellant appeared before the trial court and
withdrew his motion to withdraw his guilty plea. The trial court found Appellant guilty as
charged and sentenced him to an aggregate term of imprisonment of two years, and
ordered the sentence to be served consecutive to Appellant’s period of post-release
control, 599 days. Appellant did not file an appeal from the sentence.
{¶8} On October 19, 2015, Appellant filed a motion to vacate the 599 day judicial-
sanction sentence, arguing the language employed by the trial court in the 2009
sentencing entries in Case No. 09 CR 508 and 09 CR 435 was deficient, rendering his
post-release control sanctions therein void. The state filed a memorandum contra, Licking County, Case No. 16-CA-21 4
arguing the language in the 2009 sentencing entries provided Appellant with adequate
notice regarding post-release control; therefore, the sanctions were not void and
Appellant should have raised any challenge thereto on direct appeal.
{¶9} Via Judgment Entry filed March 8, 2016, the trial court denied Appellant’s
motion to vacate. It is from this judgment entry Appellant appeals, raising as his sole
assignment of error:
{¶10} “I. THE TRIAL COURT ERRED BY DENYING MR. WOLFE’S MOTION TO
VACATE HIS VOID JUDICIAL-SANCTION SENTENCE. R.C. 2929.19(B)(2); R.C.
2967.28. (MOT. TO VACATE JUDICIAL-SANCTION SENTENCE, OCT. 19, 2015, EX. A-
E.)”
{¶11} This case has been assigned to the Court's accelerated calendar docket
according to Ohio App.R. 11 and this Court's Loc.R. 6(B); therefore, pursuant to Ohio
App.R. 11 governing accelerated calendar cases, “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 conclusionary form.”
{¶12} R.C. 2929.19(B)(2)(e) provides, at the sentencing hearing, the trial court
must notify the offender if a period of supervision is imposed following his or her release
from prison, and if the offender violates that supervision, then the parole board may
impose a prison term of up to one-half of the prison term originally imposed on the
offender. The trial court must notify the offender of the mandatory nature of the term of
post-release control and the length of that mandatory term. State v. Bloomer, 122 Ohio
St.3d 200, 2009–Ohio–2462, 909 N.E.2d 1254, ¶ 69. The trial court must also include Licking County, Case No. 16-CA-21 5
this notice in the sentencing entry. State v. Singleton, 124 Ohio St.3d 173, 2009–Ohio–
6434, 920 N.E. 2d 958, ¶ 11, 22.
{¶13} In State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, the Ohio Supreme
Court held, in pertinent part, “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.”
Id., at paragraph one of the syllabus. See, also, State v. Jordan, 104 Ohio St.3d 21, 2004–
Ohio–6085. In light of this voidness doctrine, where a prior sentence does not include a
statutorily mandated term of post-release control in the sentencing entry, the trial court
cannot order the remaining PRC time imposed upon a new violation and sentence. See
State v. Murphy, 5th Dist. Muskingum No. CT2013–0028, 2014–Ohio–323, ¶ 7.
{¶14} In its December 7, 2009 Judgment Entry in Case No. 09 CR 508, the trial
court stated:
The Court informed the defendant that upon release from prison he
would be subject to postrelease control for 3 years unless sooner
terminated by the Adult Parole Authority. The Court further notified the
defendant that if he violates the conditions of postrelease control imposed
by the Parole Board under Ohio Revised Code Section 2967.28, he could
be returned to prison for up to nine months for those violations, and if the
violation is a new felony, he could be returned to prison on the new felony
as well. Id. at 2, unpaginated.
{¶15} In its March 2, 2010 Judgment Entry in Case No. 09 CR 435, the trial court
stated: Licking County, Case No. 16-CA-21 6
The Court sentences the defendant to a period of three (3) years of
post-release control following any prison sentence imposed, and further the
consequences for violating conditions of post-release control imposed by
the Parole Board under Ohio Revised Code Section 2967.28, being the
defendant is subject to being reincarcerated for a period of up to nine
months, with a maximum for repeated violations of 50% of the stated prison
term. If the violation is a new felony, the defendant may be returned to
prison for the remaining period of control or 12 months, whichever is
greater, plus receive a prison term for the new crime. Id. at 2, unpaginated.
{¶16} We find the trial court did not properly impose post-release control in Case
No. 09 CR 508. The sentencing entry therein states, if Appellant violated the terms of his
post-release control, “he could be returned to prison for up to nine months for those
violations”. This statement is erroneous. In actuality, if Appellant violated the conditions
of his post-release control, “the parole board may impose a prison term of up to one-half
of the prison term originally imposed”, i.e., one-half of twenty-one months. Further, the
trial court did not expressly advise Appellant post-release control was mandatory.
{¶17} Likewise, the trial court did not properly impose post-release control in Case
No. 09 CR 435. The sentencing entry therein sentenced Appellant to a mandatory period
of post-release control of three years. Because Appellant was convicted of a fourth-
degree felony, he was only subject to a discretionary period of post-release control. R.C.
2967.28(C).
{¶18} We conclude the trial court’s imposition of post-release control in the 2009
cases was void. Because Appellant has already completed the stated prison terms for the Licking County, Case No. 16-CA-21 7
2009 convictions, the trial court no longer has the authority to correct the improper
language. State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462; State v. McCall, 5th
Dist. No. CT 2013-0014, 2013-Ohio-2653. Therefore, the imposition of post-release
control remains void, as if such had never been imposed. Accordingly, the trial court
could not impose post-release control sanctions based upon the 2009 convictions in Case
No. 13 CR 327.
{¶19} Appellant's sole assignment of error is sustained.
{¶20} The judgment of the Licking County Court of Common Pleas is reversed
and the 599 day judicial sanction sentence Appellant received for violating post-release
control is vacated.
By: Hoffman, J.
Farmer, P.J. and
Delaney, J. concur