[Cite as State v. Murphy, 2014-Ohio-323.]
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- :
:
TERRY L. MURPHY : Case No. CT2013-0028
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2013-0059
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: January 29, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT SMITH KENNETH R. SPIERT
27 North Fifth Street 250 East Broad Street, 14th Floor
Zanesville, OH 43701 Columbus, OH 43215
Muskingum County, Case No. CT2013-0028 2
Farmer, J.
{¶1} On July 31, 2007, the Muskingum County Common Pleas Court
sentenced appellant, Terry Murphy, to an aggregate term of four years in prison, and
notified appellant that post-release control was optional up to three years (Case No.
CR2007-0070).
{¶2} On May 1, 2013, the trial court sub judice sentenced appellant to an
aggregate term of eight years in prison (Case No. CR2013-0059). The trial court further
found appellant had violated the terms of his post-release control in Case No. CR2007-
0070. The trial court terminated appellant's post-release control in said case and
ordered him to serve the remainder of his post-release control consecutively to the eight
year sentence.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ERRED IN IMPOSING A JUDICIAL SANCTION
UNDER OHIO REVISED CODE SECTION 2929.141(A)(1) BASED UPON A VOID
ENTRY IMPOSING POSTRELEASE CONTROL. THIS ERROR VIOLATES MR.
MURPHY'S RIGHTS TO DUE PROCESS AND EQUAL PROTECTION UNDER THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTIONS 2 AND 16 OF THE OHIO
CONSTITUTION."
Muskingum County, Case No. CT2013-0028 3
II
{¶5} "THE TRIAL COURT ERRED WHEN IMPOSING A SANCTION UNDER
OHIO REVISED CODE SECTION 2929.141(A)(1) BY FAILING TO STATE THE
NUMBER OF DAYS THAT MR. MURPHY IS REQUIRED TO SERVE ON THAT
SENTENCE. THIS ERROR VIOLATES MR. MURPHY'S RIGHTS TO DUE PROCESS
UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."
I
{¶6} Appellant argues the trial court erred in ordering him to serve the
remainder of his post-release control from Case No. CR2007-0070, as the order of post-
release control was void. We agree.
{¶7} In Case No. CR2007-0700, appellant was notified that post-release control
was optional up to three years, when in fact it was a mandatory three year term;
therefore the order of post-release control was void and cannot now be used against
him. The state concedes this argument in its brief at 2-3, on the applicability of State v.
Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, ¶ 12:
Here, the trial court failed to sentence Billiter to a correct term of
postrelease control. Accordingly, his sentence was void. Fischer [128
Ohio St.3d 92, 2010-Ohio-6238], paragraph one of the syllabus. The trial
court's incorrect sentence for postrelease control in 1998 was insufficient
to confer authority upon the Adult Parole Authority to impose up to three
years of postrelease control on Billiter. Jordan, 104 Ohio St.3d 21, 2004-
Muskingum County, Case No. CT2013-0028 4
Ohio-6085, 817 N.E.2d 864, ¶ 17. Although the Adult Parole Authority
actually did place Billiter under supervision, see R.C. 2921.01(E), and
Billiter did violate the terms of that postrelease control in violation of R.C.
2921.34(A)(1), Billiter's escape conviction was based on an invalid
sentence. Accordingly, the trial court was without jurisdiction to convict
him on the escape charge.
{¶8} Assignment of Error I is granted.
II
{¶9} Based upon our decision in Assignment of Error I, we find this assignment
to be moot.
Muskingum County, Case No. CT2013-0028 5
{¶10} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby reversed, and the matter is remanded to said court for resentencing.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
SGF/sg 116
State v. Murphy
Combined Opinion