[Cite as State v. Pointer, 2011-Ohio-5072.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24446
vs. : T.C. CASE NO. 97CR449
WILLIAM L. POINTER : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 30th day of September, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros.
Attorney, Atty. Reg. No. 0020084, P.O. Box 972, Dayton, OH 45422
Attorney for Plaintiff-Appellee
William L. Pointer, #626-192, P.O. Box 7010, Chillicothe, OH 45601
Defendant-Appellee, Pro Se
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, William L. Pointer, appeals from a judgment
of the Montgomery County Common Pleas Court that overruled
Defendant’s motion to vacate his judgment of conviction.
{¶ 2} In 1997, Defendant pled guilty to one count of felonious
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assault and one count of involuntary manslaughter. The trial court
accepted the pleas and sentenced Defendant to concurrent prison
terms of seven years for the felonious assault and nine years for
the involuntary manslaughter. The offenses mandate terms of
post-release control of three and five years. In its judgment
of conviction, the court ordered:
{¶ 3} “Following the defendant’s release from prison, the
defendant will/may serve a period of post-release control under
the supervision of the parole board.”
{¶ 4} Defendant did not appeal his conviction and sentence.
Defendant completed serving his sentence and was released from
prison on post release control on March 4, 2007. Defendant’s post
release control supervision was terminated by the Adult Parole
Authority on February 25, 2010.
{¶ 5} On August 30, 2010, Defendant filed a “motion to vacate
void sentence and judgment of conviction.” Defendant argued that
the trial court failed to properly impose the mandatory three and
five year terms of post release control which apply to his
convictions, a defect that renders both his convictions and
sentences void. The State filed a memorandum contra Defendant’s
motion.
{¶ 6} On January 11, 2011, the trial court filed its Decision
and Entry overruling Defendant’s motion. The trial court held:
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{¶ 7} “On August 30, 2010 Defendant filed a Motion to Vacate
Void Sentence and Judgment of Conviction. The motion has been
reviewed.
{¶ 8} “On August 07, 1997, Termination Entry was filed in this
matter. Defendant was convicted of felonious assault and
involuntary manslaughter. The Defendant was sentenced to a term
of seven (7) years on the felonious assault conviction and a term
of nine (9) years on the involuntary manslaughter conviction.
The terms were to be served concurrent with each other but
consecutive to Defendant’s sentence in another case. Defendant
did not appeal the conviction. Defendant served his sentence and
was released. He was placed on supervision by the adult parole
authority after service of his sentence. His supervision was
terminated on February 25, 2010.
{¶ 9} “Defendant asserts the conviction in this case is void
because the post-release control was purportedly not properly
imposed. The custom at that time was to place in the termination
entry alternative language of ‘will or may.’ That practice has
since been determined to be improper.
{¶ 10} “The court concludes that Defendant’s motion is moot.
Defendant did not appeal his convictions. He served his sentence
and was released. He was placed under supervision upon release,
but supervision was terminated in February of 2010. Defendant
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did not file this motion until August 30, 2010. The Supreme Court
has essentially held that an error with respect to imposition of
post release control does not necessarily cause the conviction
to be void. In State v. Fischer, the Ohio Supreme Court held that
although the doctrine of res judicata does not preclude review
of a void sentence, res judicata still applies to other aspects
of the merits of the conviction, including the determination of
guilt and lawful elements of the ensuing sentence.
{¶ 11} “So, Defendant’s underlying convictions for felonious
assault and involuntary manslaughter remain and are res judicata
as far as any attack on those convictions. Defendant did not appeal
his sentence. He did not seek any type of post-conviction relief.
{¶ 12} “The Defendant did not specifically challenge his
post-release control until after it was terminated. Even assuming
the post-release control is not properly imposed in 1997 he is
bound by it. Defendant did not object to it. It appears from
Fischer that he would not have been barred by res judicata from
attacking the post-release control component of his sentence, even
if he had so moved in the course of his incarceration or while
he was under supervision, but he never challenged the supervision
component of the termination entry. It is not reasonable to think
that the Defendant can have that reviewed after the sentence has
been served and the supervision terminated.
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{¶ 13} “Accordingly, Defendant’s Motion to Vacate his 1997
conviction is OVERRULED.”
{¶ 14} Defendant timely appealed to this court from the trial
court’s decision overruling his motion to vacate his 1997
conviction and sentence.
FIRST ASSIGNMENT OF ERROR
{¶ 15} “THE TRIAL COURT DID NOT COMPLY WITH STATUTORY
REQUIREMENTS OF POST RELEASE CONTROL AND THUS THE ACCUSED HAS
BEEN DEPRIVED OF HIS RIGHTS TO DUE PROCESS IN VIOLATION OF THE
FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE
UNITED STATES.”
{¶ 16} Defendant argues that his conviction and sentence are
void because the trial court failed to properly notify him during
the sentencing hearing of the mandatory terms of post release
control that apply to his convictions, and further failed to
incorporate that notification into its judgment entry of
conviction. R.C. 2967.28(B)(1) and (2); R.C. 2929.19(B)(3)(c)
and (e); State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197;
State v. Terry, Darke App. No. 09CA0005, 2010-Ohio-5391.
{¶ 17} The trial court failed to properly notify Defendant at
the sentencing hearing regarding the mandatory three and five year
terms of post release control that apply in this case, and further
failed to incorporate that notice into its judgment entry of
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conviction or “Termination Entry.” That error in imposing post
release control does not void Defendant’s conviction, however.
Rather, it voids only that part of Defendant’s sentence. State
v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238; State v. Renner,
Montgomery App. No. 24019, 2011-Ohio-502. The remedy is a new
sentencing hearing at which post-release control is properly
imposed. Id., paragraph two of the Syllabus by the Court. When
the applicable terms of post-release control are mandatory, as
they are here, an appellate court is authorized by R.C.
2953.08(G)(2) to correct the defect in imposing post-release
control by modifying the sentence without a remand. Fischer, ¶29.
{¶ 18} The judgment of conviction entered in Montgomery County
Common Pleas Court Case No. 97-CR-449 will be modified to provide
that Defendant must serve periods of post-release control of three
years and five years, respectively, on his convictions for
involuntary manslaughter and felonious assault.
{¶ 19} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 20} “THE JUDGMENT OF CONVICTION AND SENTENCE ARE FACIALLY
VOID FOR FAILURE TO COMPLY WITH STATUTORY REQUIREMENTS OF CRIM.R.
32(C), BY NOT INCLUDING THE FINDING OF GUILT IN THE SENTENCING
ENTRY.”
{¶ 21} Defendant argues that his convictions are void because
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the judgment of conviction does not set forth the manner of
Defendant’s conviction, which was his guilty pleas, and the court’s
verdict or finding of guilt thereon. Both are required by Crim.R.
32(C). See: State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330.
{¶ 22} Defendant did not raise this issue in the trial court
by including it as grounds for his motion to vacate his judgment
of conviction. Neither did the trial court rule on this issue.
Therefore, Defendant has waived this issue for purposes of appeal.
In any event, the failure of a judgment of conviction to comply
with Crim.R. 32(C) does not render the judgment void. State ex
rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235, at ¶19.
{¶ 23} Defendant’s second assignment of error is overruled.
The judgment of the trial court will be affirmed.
DONOVAN, J., And WAITE, J., concur.
(Hon. Cheryl L. Waite, Seventh District Court of Appeals, sitting
by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Carley J. Ingram, Esq.
William L. Pointer
Hon. Timothy N. O’Connell