[Cite as State v. Billiter, 2011-Ohio-2230.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2010CA00292
DONALD BILLITER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2004CR00452
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 9, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO, STEPHEN P. HARDWICK
PROSECUTING ATTORNEY, Assistant Public Defender
STARK COUNTY, OHIO 250 East Broad Street, Suite 1400
Columbus, Ohio 43215
BY: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2010CA00292 2
Hoffman, J.
{¶1} Defendant-appellant Donald Billiter appeals the denial of his motion to
withdraw his plea of guilty in the Stark County Court of Common Pleas. Plaintiff-
appellee is the State of Ohio.
STATEMENT OF THE CASE1
{¶2} In 1998, Appellant entered a plea of guilty to one count each of
aggravated burglary and domestic violence. As a result of his plea and subsequent
conviction, Appellant was sentenced to an aggregate prison term of three years. The
sentencing judgment entry included an incorrect statement of his post-release control
obligations. The trial court’s entry noted Appellant would be subject to post-release
control for a period of up to three years.
{¶3} The Court had further notified the defendant post release control is
mandatory in this case up to a maximum of three (3) 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 was ordered to serve as part of
this sentence any term of post release control imposed by the Parole Board, and any
prison term for violation of that post release control.
{¶4} Appellant was released from prison on May 20, 2001. Within the three
year period of post release control, Appellant entered a plea of guilty to escape from his
post release control detention on April 26, 2004. On June 3, 2004, the trial court
sentenced Appellant to a community control sanction on his escape conviction.
Appellant did not file an appeal. Subsequently, Appellant violated the terms and
1
A statement of the facts is unnecessary to our disposition of the within appeal.
Stark County, Case No. 2010CA00292 3
conditions of his community control sanction, resulting in the revocation of his probation
by the trial court. The trial court then sentenced Appellant to a six year prison term.
Appellant did not appeal the revocation or the imposition of the prison sentence.
{¶5} On July 21, 2008, Appellant filed a motion to suspend further execution of
sentence based upon Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126.
However, the trial court overruled the motion finding the imposition of the erroneous
period of post-release control benefitted Appellant; not prejudiced him as Appellant had
committed the escape within the lesser time period.
{¶6} Appellant filed an appeal of the trial court’s judgment entry overruling his
motion to suspend execution to this Court. Appellant argued the trial court should have
vacated the escape conviction as he was not validly on post-release control This Court
rejected the argument, affirming the judgment of the trial court, citing the Ohio Supreme
Court’s opinion in Watkins v. Collins, 111 Ohio St.3d 425. The next day, the Ohio
Supreme Court announced its decision in State v. Bloomer 122 Ohio St.3d 200, 2009-
Ohio-2462. In Bloomer, the Supreme Court held a sentence including a term of post-
release control is void where the trial court failed to “notify the offender of the mandatory
nature of the term of post-release control and the length of that mandatory term and
incorporate that notification into its entry”. Appellant did not seek reconsideration or
appeal this Court’s decision to the Ohio Supreme Court.
{¶7} In 2010, Appellant filed a motion to withdraw his guilty plea on the ground
his conviction for the offense of escape was a nullity. The trial court overruled the
motion based, in part, on res judicata.
{¶8} Appellant now appeals, assigning as error:
Stark County, Case No. 2010CA00292 4
{¶9} “I. THE TRIAL COURT ERRED BY DENYING HIS MOTION TO
WITHDRAW HIS PLEA.”
{¶10} Ohio Criminal Rule 32.1 governs motions to withdraw pleas, and reads:
{¶11} “A motion to withdraw a plea of guilty or no contest may be made only
before sentence is imposed; but to correct manifest injustice the court after sentence
may set aside the judgment of conviction and permit the defendant to withdraw his or
her plea.”
{¶12} Appellant argues the trial court erred in denying his motion to withdraw his
plea of guilty to the charge of escape because his conviction of escape was based upon
“detention” which resulted from a void sentence. Specifically, Appellant argues the
Adult Parole Authority was without authority to enforce his post-release control as the
same arose from a void sentence because the imposing court failed to properly impose
a mandatory five year term of post release control.
{¶13} Ohio law states that portion of a sentence which does not include the
statutorily mandated terms of post-release control is void. State v. Fischer 2010-Ohio-
6238. Here, Appellant was not properly advised of the terms of post-release control
when he was sentenced on the aggravated burglary and domestic violence charges;
therefore, that part of his sentence imposing post control release is void. Because
Appellant had already served the prison term of the sentence, he could not then be
resentenced to properly impose the correct terms of post-release control. State v.
Bezak 114 Ohio St.3d 94, 2007 Ohio 3250. Nevertheless Appellant plead guilty to the
escape charge based upon the improperly imposed post release control. The trial court
properly imposed sentence on the escape charge.
Stark County, Case No. 2010CA00292 5
{¶14} The issue becomes whether Appellant’s conviction for escape is void
because it was based on a void post release control order. We hold it is not.
{¶15} In a analogous situation in State v. Huber, 2010-Ohio-5598, the Eighth
District addressed the issue as to whether a void sentence could lawfully serve as a
predicate to a repeat violent offender specification, where, as here, the sentence had
already been served and could not be corrected. The court held,
{¶16} “A review of the record reveals that appellant was not advised of
postrelease control when he was sentenced in CR-407661, and thus the sentence in
that case is void. State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961,
¶ 16. A void sentence is a legal nullity and should be treated as if it never occurred.
State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 25.
Because a conviction encompasses both a finding of guilt and imposition of a sentence,
appellant argues that there was no valid conviction in CR-407661, and therefore CR-
407661 could not precipitate a repeat violent offender specification.
{¶17} “In Bezak, the defendant was not properly notified of postrelease control
when his sentence was imposed, and thus his sentence was void. Id. at ¶ 16. Because
the defendant in Bezak had already served his sentence, the Court held that he could
not be resentenced and postrelease control could not be imposed. Id. at ¶ 18. Appellant
relies on this outcome to argue that his sentence cannot be corrected and will remain
void; therefore, it is to be ignored and cannot serve as the basis for a repeat violent
offender specification. We find that appellant is construing the holdings in Bezak and its
progeny too narrowly.
Stark County, Case No. 2010CA00292 6
{¶18} “‘As a court of law, we must be careful to avoid obtaining results that are
absurd or unreasonable whenever possible.’ State v. Biondo, Portage App. No.2009-P-
0009, 2009-Ohio-7005, ¶ 45. As in the instant case, the defendant in Biondo had
already served his sentence when the court realized that the sentence was void. Biondo
sought to avoid his obligation to pay mandatory fines and costs by arguing that the void
sentence was a legal nullity. The court in Biondo rejected this argument and held that
‘[t]owards this end, the order set forth in Bezak implies that a conviction (guilt plus
sentence) can withstand a court's determination that a felon was not provided adequate
statutory notice of post-release control. Such a conclusion can only be drawn by
treating, at the very least, the completion of a term of imprisonment (following a valid
finding of guilt), as sufficient to meet the definition of a sentence under the unique
circumstances created by the facts in Bezak and, by implication, the facts of the case
sub judice.’ Biondo at ¶ 48.
{¶19} “In Bezak, the court noted that, although a sentence imposed without the
defendant being advised of postrelease control is ordinarily void, Bezak could not be
resentenced because he had already completed his term of imprisonment. Bezak at ¶
18. It is noteworthy, however, that the court in Bezak did not vacate the conviction, but
merely remanded the case to the trial court with instructions to note on the record that
Bezak had completed his sentence and would not be subject to resentencing. Id. As
noted in Biondo, this holding “has odd conceptual implications: Bezak's sentence was
void and therefore a legal nullity because he was not properly notified of the possibility
of post-release control; however, the court made a point to emphasize that he had
already served his sentence. This begs the question: How can one have served a
Stark County, Case No. 2010CA00292 7
sentence that does not exist? Much like a Zen Koan, such a paradox cannot be
resolved by deductively following the concepts which created the entanglement, but
must be dissolved by following a different course.” (Emphasis in original.) Biondo at ¶
47.
{¶20} “Numerous complications have resulted from the holdings in Bezak and its
progeny. It is illogical to presume, however, that the Ohio Supreme Court intended
Bezak to stand for the proposition that an unchallenged sentence that is technically
“void” due to an improper postrelease control advisement cannot then serve as the
basis for a repeat violent offender specification, especially in a case such as this where
the offender has already completed his prison sentence.”
{¶21} Because we find Appellant’s conviction for escape is not void, res judicata
applies based upon Appellant’s failure to directly appeal his escape conviction and this
Court’s prior opinion affirming the trial court’s subsequent denial of his motion to
suspend further execution of sentence.
{¶22} We find Appellant’s conviction on the escape charge and subsequent
sentence do not constitute a manifest injustice under the circumstances of this case.
Accordingly, the sole assignment of error is overruled.
Stark County, Case No. 2010CA00292 8
{¶23} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Stark County, Case No. 2010CA00292 9
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DONALD BILLITER :
:
Defendant-Appellant : Case No. 2010CA00292
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
State v. Billiter
Combined Opinion