[Cite as State v. King, 2012-Ohio-4580.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. CT2012-0009
CHAISE KING
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR 2011 253
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: October 1, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT L. SMITH ERIC J. ALLEN
Assistant Prosecuting Attorney The Law Office of Eric J. Allen, Ltd.
27 North Fifth Street 713 South Front
Zanesville, Ohio 43701 Columbus , Ohio 43206
Muskingum County, Case No. CT2012-0009 2
Hoffman, J.
{¶1} Defendant-appellant Chaise King appeals his sentence entered by the
Muskingum County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On January 9, 2012, Appellant entered a plea of guilty to one count of
aggravated burglary, in violation of R.C. 2911.12, a felony of the first degree. On
February 13, 2012, the trial court sentenced Appellant to a three year prison term. The
trial court also imposed a three year and ten month prison term for Appellant's alleged
violation of his post-release in Muskingum County Case Number CR 2003-7A.
{¶3} Appellant now appeals, assigning as error:
{¶4} “I. THE TRIAL COURT ERRED WHEN IT IMPOSED A JUDICIAL
SANCTION OF 1461 DAYS FOR POST RELEASE CONTROL IMPROPERLY
IMPOSED AND NEVER CORRECTED IN CASE NUMBER CR 2003-7A.”
{¶5} Appellant argues his post-release control in Muskingum County Case
Number CR2003-7A was improperly imposed because the trial court journal entry
reads,
{¶6} "The court further notified the defendant that post release control is
mandatory in this case up to a maximum of five (05) years as well as the consequences
for violating conditions imposed by the parole board under Revised Code §2967.28."
{¶7} The Ohio Supreme Court in State v. Fischer, 128 Ohio St.3d 92 (2010),
held a sentence that does not include the statutorily mandated term of post-release
1
A rendition of the facts underlying the charge is unnecessary for our disposition of this
appeal.
Muskingum County, Case No. CT2012-0009 3
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.
{¶8} Appellant's sentence imposing post-release control in the underlying case,
CR 2003-7A, was void as the trial court failed to state a definite term of post-release
control. Appellant had served his entire sentence in Case No. CR2003-7A, had not
been resentenced, and there was no nunc pro tunc entry filed correcting the improper
post-release control imposition according to State v. Bloomer 122 Ohio St.3d 200, 2009-
Ohio-2462 and State v. Simpkins 117 Ohio St.3d 420, 2008-Ohio-1197. Accordingly,
we find the trial court erred in imposing a prison term for violating a “void” post release
control sanction.
{¶9} The sole assignment of error is sustained, and Appellant's sentence in the
Muskingum County Court of Common Pleas is reversed, and the matter remanded to
the trial court for the limited purpose of resentencing.
By: Hoffman, J.
Gwin, P.J. and
Edwards, J. concur s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Muskingum County, Case No. CT2012-0009 4
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
CHAISE KING :
:
Defendant-Appellant : Case No. CT2012-0009
For the reason stated in our accompanying Opinion, Appellant's sentence in the
Muskingum County Court of Common Pleas is reversed, and the matter is remanded to
the trial court for the limited purpose of resentencing in accordance with our Opinion
and the law. Costs to Appellee.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS