State v. Mills

[Cite as State v. Mills, 2014-Ohio-2188.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 100417

STATE OF OHIO
PLAINTIFF-APPELLANT

vs.

ROBERT MILLS
DEFENDANT-APPELLEE

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-575858-A

BEFORE: Kilbane, J., Keough, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: May 22, 2014
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
Joseph J. Ricotta
Daniel T. Van
Assistant County Prosecutors
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Steve W. Canfil
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113-1899
MARY EILEEN KILBANE, J.:

{¶1} Plaintiff-appellant, the state of Ohio (“State”), appeals the trial court’s

judgment granting the motions of defendant-appellee, Robert Mills, to vacate his plea,

dismiss the indictment, and terminate postrelease control. For the reasons set forth

below, we affirm.

{¶2} In February and April 2007, Mills was indicted in two separate criminal

cases. In Case No. CR-07-492295, he was charged with drug trafficking and drug

possession. In Case No. CR-07-495637, he was charged with two counts of aggravated

robbery with firearm specifications, and one count of kidnapping, with firearm

specifications. In July 2007, Mills pled guilty to both drug charges in Case No.

CR-07-492295. Mills proceeded to a bench trial in Case No. CR-07-495637. In this

case, Mills was charged with codefendant Miguel Saucedo (“Saucedo”). Saucedo

proceeded to a jury trial, and both defendants were tried simultaneously. The trial court

found Mills guilty of the aggravated robbery charges with the firearm specifications and

dismissed the kidnapping charge and accompanying specifications.

{¶3} In August 2007, the trial court sentenced Mills to six years in prison on

Case No. CR-07-495637 and one year in prison on Case No. CR-07-492295. The court

ordered the sentences to be served concurrently for a total of six years in prison. At the

sentencing hearing, the court advised Mills that:
 Upon completing the prison term you will be subjected to five years of
supervision by the parole authority. They will supervise you for the five
years, * * * and, in fact, if you violate, Mr. Mills, they can send you back to
prison for up to one half of the six years, or a total of three years if you
violate.

If you don’t report to them, they can charge you with a new felony called
escape.

{¶4} The corresponding journal entry, however, did not contain the full advisement

with respect to postrelease control. The entry states that: “[p]ost release control is part

of this prison sentence for 5 years for the above felony(s) under R.C. 2967.28.”1

{¶5} Mills violated the terms and conditions of his postrelease control

supervision on June 3, 2013, and was subsequently indicted on one count of escape.

Mills plead guilty to an amended charge of attempted escape on July 25, 2013. Then on

September 4, 2013, Mills moved to vacate his guilty plea and dismiss the indictment,

arguing that he was never properly advised of postrelease control. Mills supplemented

this motion on September 10, 2013, and moved to terminate his postrelease control. The

State opposed Mills’s motion, arguing that the trial court’s imposition of postrelease

control was valid. The trial court granted Mills’s motions, finding that his “motions have

merit.” As a result, the trial court vacated Mills’s guilty plea, dismissed the indictment,

and terminated the postrelease control imposed in Case Nos. CR-07-492295 and

CR-07-495637.

1 Mills appealed to this court in State v. Mills, 8th Dist. Cuyahoga No. 90383,
2008-Ohio-3666. On appeal, Mills only challenged his convictions. He did not challenge the trial
court’s impostion of postrelease control. We found his arguments unpersuasive and affirmed his
convictions.
 {¶6} It is from this order that the State appeals, raising the following two

assignments of error, which shall be discussed together for ease of discussion.

Assignment of Error One

The trial court erred in dismissing the indictment because [Mills] was orally
notified at sentencing of the consequences of [postrelease] control and the
journal entry imposes the correct term of [postrelease] control and
references the [postrelease] control statute. Therefore [Mills] was properly
on [postrelease] control and, as a result, he was properly charged with
escape.

Assignment of Error Two

The trial court erred in dismissing the indictment, because even if the
sentencing entry omits the potential additional prison time that could be
imposed for violations of [postrelease] control, [Mills] was properly advised
of [postrelease] control and was properly on [postrelease] control when he
absconded. Therefore, the escape charge should not have been dismissed.

{¶7} Within these assigned errors, the State argues that Mills was properly

advised of postrelease control because the trial court orally notified him at the sentencing

hearing of the consequences of postrelease control, and the sentencing entry notified him

of his postrelease control obligations under R.C. 2967.28. On the other hand, Mills

argues that our decision in State v. Viccaro, 8th Dist. Cuyahoga No. 99816,

2013-Ohio-3437, is persuasive. We agree.

{¶8} In Viccaro, the defendant-Viccaro pled guilty to one count of kidnapping

and one count of aggravated theft. The trial court sentenced him to a three-year prison

term. Prior to the expiration of his prison sentence, the trial court conducted a

resentencing hearing and advised Viccaro that upon his release he would be subjected to a

five-year period of postrelease control supervision, but failed to include the consequences
of violating postrelease control in the journal entry. Viccaro violated the terms and

conditions of his postrelease control supervision and subsequently was indicted with one

count of escape. Viccaro pled guilty to the charge of escape, and the trial court

sentenced him to a three-year term of imprisonment. Two years after his sentence in the

escape charge, Viccaro filed a motion to withdraw his guilty plea, which the trial court

denied. Id. at ¶ 2-3, 9.

{¶9} Viccaro appealed from this decision, arguing that his term of postrelease

control was not properly imposed and, thus, it cannot provide the basis for his escape

charge. Specifically, he argued that the

trial court’s journal entry informing him of postrelease control was not
sufficient and, therefore, is void. [He reasoned] that because this void term
of postrelease control cannot provide the basis for the charge of escape, the
trial court erred when it denied his motion to withdraw his guilty plea.

Id. at ¶ 3-4.

{¶10} In response to Viccaro’s arguments, the State supplemented the record with

the entry of conviction for the underlying felony, the transcript from the resentencing

hearing, at which the court advised him of the imposition of postrelease control, and the

journal entry of the resentencing. The State claimed that any error on the part of the trial

court was clerical and had no bearing on Viccaro’s motion to withdraw his guilty plea.

Id. at ¶ 5.

{¶11} We noted that this court must follow State v. Jordan, 104 Ohio St.3d 21,

2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the syllabus, which requires the trial

court to give notice of postrelease control both at the sentencing hearing and by
incorporating it into the sentencing entry. Viccaro at ¶ 10. In examining other cases

from our court, we found that the court failed to include the consequences of violating

Viccaro’s five-year period of postrelease control in its journal entry, rendering the

sentence void. Id. at ¶ 14. We further found that because Viccaro completed his

sentence of imprisonment on the charges underlying his postrelease control sanctions, the

sentencing entry could not be corrected, and Viccaro could not be convicted of escape

when there was no valid form of detention. Id. See State v. Rice, 8th Dist. Cuyahoga

No. 95100, 2011-Ohio-1929 (where this court found the trial court committed reversible

error by failing to state in its sentencing journal entry that an additional term of

incarceration could be imposed if the defendant violated the terms of postrelease); State v.

Nicholson, 8th Dist. Cuyahoga No. 95327, 2011-Ohio-14, (where the court’s journal entry

included the language that the defendant was required to serve a five-year period of

postrelease control, but failed to include what repercussions would follow a postrelease

control violation. This court found that the trial court must notify the offender, both at the

sentencing hearing and in its journal entry, that the parole board could impose a prison

term if the offender violates the terms and conditions of postrelease control.); State v.

Cash, 8th Dist. Cuyahoga No. 95158, 2011-Ohio-938, (where this court found that the

failure to properly notify a defendant of postrelease control and to incorporate that notice

into the court’s sentencing entry renders the sentence void. As a result the Adult Parole

Authority lacked jurisdiction to impose postrelease control on the defendant because it
was not included in a valid sentence, nor was there a judicial order imposing postrelease

control.)

{¶12} Moreover, in State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967

N.E.2d 718, the Ohio Supreme Court addressed the issue of postrelease control,

emphasizing two important principles. See State v. Cvijetinovic, 8th Dist. Cuyahoga No.

99316, 2013-Ohio-5121. The first principle is that “unless a sentencing entry that did

not include notification of the imposition of postrelease control is corrected before the

defendant completed the prison term for the offense for which postrelease control was to

be imposed, postrelease control cannot be imposed.” Id. at ¶ 16, citing Hernandez v.

Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301. The second principle

emphasized in Qualls is that

a trial court must provide statutorily compliant notification to a defendant
regarding postrelease control at the time of the sentencing, including
notifying the defendant of the details of postrelease control and the
consequences of violating postrelease control.

Id. at ¶ 18. If the trial court properly notifies the defendant about postrelease control at

the sentencing hearing, but the notification is inadvertently omitted from the sentencing

entry, the omission can be corrected with a nunc pro tunc entry and the defendant is not

entitled to a new sentencing hearing. Id. at the syllabus.

{¶13} In the instant case, just as in Viccaro, the trial court properly advised Mills

of postrelease control at the 2007 sentencing hearing, but the corresponding journal entry

does not include the consequences for violating postrelease control. The failure to

incorporate the proper notice of postrelease control in the corresponding sentence entry
renders the sentence void. Viccaro, 8th Dist. Cuyahoga No 2013-Ohio-3437, at ¶ 14,

citing Rice and Nicholson.2

{¶14} Likewise, Mills already served his prison term for the charges underlying

the postrelease control. As we noted in Viccaro, “‘[i]t is well settled that once the

sentence for the offense that carries postrelease control has been served, the court can no

longer correct sentencing errors by resentencing.’” Id., at ¶ 11, quoting State v. Douse,

8th Dist. Cuyahoga No. 98249, 2013-Ohio- 254, citing State v. Bezak, 114 Ohio St.3d 94,

2007-Ohio-3250, 868 N.E.2d 961. In the instant case, because no postrelease control

sanctions were lawfully included in Mills’s sentence, the Adult Parole Authority lacked

jurisdiction to impose postrelease control, and Mills cannot be convicted of escape.

Therefore, the trial court properly granted Mills’s motions to withdraw his guilty plea,

dismiss the indictment, and terminate postrelease control.

{¶15} Accordingly, the State’s first and second assignments of error are overruled.

{¶16} Judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

2In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of
the syllabus, the Ohio Supreme Court held that a void postrelease control sentence “is not precluded
from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal
or collateral attack.” The Supreme Court of Ohio recently applied Fischer “to every criminal
conviction, including a collateral attack on a void sentence that later results in a guilty plea to the
crime of escape.” State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960.
 It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
PATRICIA A. BLACKMON, J., CONCUR