State v. Filous

[Cite as State v. Filous, 2017-Ohio-7203.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY

STATE OF OHIO, :
: Case No. 16CA16
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
NEIL E. FILOUS, :
:
Defendant-Appellant. : Released: 07/31/17
_____________________________________________________________
APPEARANCES:

Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant
Ohio Public Defender, Columbus, Ohio, for Appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M.
Saunders, Assistant Athens County Prosecuting Attorney, Athens, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

{¶1} Neil Filous appeals the judgment of the Athens County Court of

Common Pleas finding he had violated the terms and conditions of his

community control/judicial release and sentencing him to the time remaining

on two concurrent twelve-month prison terms with a mandatory three-year

term of post-release control, to be served consecutively to a prison term

imposed in Cuyahoga County. On appeal, Appellant contends that the trial
Athens App. No. 16CA16 2

court erred by imposing post-release control for a prison term imposed for a

community control violation.

{¶2} We reject the arguments raised under Appellant's sole

assignment of error as meritless. However, because we find that the trial

court failed to properly notify Appellant of the correct term of post-release

control when it sentenced him to prison for a community control violation,

the imposition of post-release control is void. Further, because Appellant

has already completed the prison term re-imposed as a result of his

subsequent judicial release violation, the trial court has no jurisdiction to

correct the error related to the improper imposition of post-release control.

Accordingly, the judgment of the trial court is vacated to the extent it

purported to impose either an optional or mandatory three-year term of post-

release control. We additionally order Appellant discharged from further

supervision by the Adult Parole Authority.

FACTS

{¶3} Appellant, Neil Filous, was indicted for two counts of domestic

violence in violation of R.C. 2919.25, both third degree felonies. Appellant

pleaded guilty to the charges and was originally sentenced to a five-year

term of community control on September 24, 2012. The trial court orally

advised Appellant at his sentencing hearing that if he violated his
Athens App. No. 16CA16 3

community control, he would be sent to prison for twelve months. The trial

court made no reference to post-release control during the original

sentencing hearing. The initial judgment entry that was filed was followed

by a nunc pro tunc judgment entry stating Appellant would be sentenced to

two concurrent twelve-month prison terms and would be subject to an

optional three-year term of post-release control if he violated community

control.

{¶4} A notice of violation was filed on February 21, 2013. A First

Stage Revocation Hearing was held at which Appellant admitted to the

violation. The trial court terminated Appellant's community control and

imposed two twelve-month prison terms, to be served concurrently. The

trial court made no reference to post-release control, and once again the

judgment entry that followed stated Appellant would be subject to an

optional three-year term of post-release control. Approximately six months

later Appellant filed a motion for judicial release, which the trial court

granted. There is no hearing transcript from the judicial release hearing in

the record; however, the journal entry ordering judicial release stated

Appellant was placed on five years of community control to be supervised

by the Adult Parole Authority and the court reserved the right to re-impose

the sentence that was reduced if Appellant violated the terms of his judicial
Athens App. No. 16CA16 4

release/community control. The entry also stated Appellant would be

subject to an optional three-year term of post-release control if the court re-

imposed the prison sentence.

{¶5} A notice of violation of judicial release/community control was

filed on February 5, 2016. Another First Stage Revocation Hearing was held

on June 21, 2016. A discussion was held between the court and counsel

regarding the fact that Appellant had previously been sentenced to an

optional three-year term of post-release control when he should have been

sentenced to a mandatory three-year term of post-release control. After

deciding the mistake was a clerical error, the trial court proceeded to revoke

Appellant's judicial release and re-impose the suspended prison sentence.

The trial court advised Appellant during the hearing that he would now be

subject to a mandatory three-year term of post-release control. Appellant

was returned to prison for the balance of time remaining on his prison

sentence, which was approximately two and half months. At this time

Appellant has completed his prison term and was released under the

supervision of the Adult Parole Authority beginning on March 17, 2017 for a

period of three years. It is from the trial court's judgment entry revoking his

judicial release, returning him to prison and subjecting him to three years of
 Athens App. No. 16CA16 5

mandatory post-release control that Appellant now brings his current appeal,

setting forth a single assignment of error for our review.

ASSIGNMENT OF ERROR

“I. THE TRIAL COURT ERRED BY IMPOSING POSTRELEASE
CONTROL FOR A PRISON TERM IMPOSED FOR A
COMMUNITY CONTROL VIOLATION.”

LEGAL ANALYSIS

{¶6} In his sole assignment of error, Appellant contends the trial court

erred by imposing post-release control for a prison term imposed for a

community control violation. Appellant asserts that the issue presented for

review is whether a defendant who finishes a prison term for a community

control violation is subject to post-release control or community control. The

State concedes this Court has consistently found that the sanction imposed for

a community control violation punishes the violation and not the underlying

crime. The State further argues that because the prison term to be imposed for

such a violation must be within the range of prison terms available for the

offense for which the sanction that was violated was imposed, post-release

control is part of the actual sentence.

{¶7} For the following reasons, we reject Appellant's argument and

find his sole assignment of error to be without merit. However, because we

find the trial court failed to properly impose post-release control when it
 Athens App. No. 16CA16 6

terminated Appellant's community control and sent him to prison the first

time, and because Appellant has now completed his prison term, the post-

release control portion of Appellant's sentence is void and the trial court has

no jurisdiction to correct it. Accordingly, the decision of the trial court must

be vacated with regard to the imposition of post-release control.

{¶8} “Generally, when reviewing felony sentences, we apply the

standard of review set forth in R.C. 2953.08(G)(2).” State v. Baker, Athens

No. 13CA18, 2014-Ohio-1967, ¶ 25. See also State v. Brewer, Meigs No.

14CA1, 2014-Ohio-1903, 11 N.E.3d 317, ¶ 33 (“we join the growing number

of appellate districts that have abandoned the Kalish plurality's second-step

abuse-of-discretion standard of review; when the General Assembly reenacted

R.C. 2953.08(G)(2), it expressly stated that ‘[t]he appellate court's standard of

review is not whether the sentencing court abused its discretion’ ”).

{¶9} Under R.C. 2953.08(G)(2), we may only modify or vacate a

defendant's sentence if we find, clearly and convincingly, that (1) the record

does not support the mandatory sentencing findings, or (2) that the sentence

is “otherwise contrary to law.” We recognize that this is an “extremely

deferential standard of review.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d

453, ¶ 21. Although State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124, may not provide the standard of review framework for
Athens App. No. 16CA16 7

reviewing felony sentences, it does provide guidance for determining

whether a sentence is clearly and convincingly contrary to law. See State v.

Lee, 12th Dist. Butler No. CA2012–09–182, 2013-Ohio-3404, ¶ 10.

According to Kalish, a sentence is not clearly and convincingly contrary to

law when the trial court considered the purposes and principles set forth in

2929.11, as well as the factors listed in R.C. 2929.12, properly applies post-

release control, and sentences within the permissible statutory range. Id.; see

also State v. Kalish, at ¶ 18.

{¶10} We initially note, with respect to Appellant's argument that a

trial court cannot impose post-release control in connection with a prison

term imposed after a community control violation, that the Tenth District

Court of Appeals has rejected this exact argument in State v. Nutt, 10th Dist.

Franklin No. 00AP-190, 2000 WL 1537898, *4. Although we have been

unable to locate any other case that has considered this particular question,

we reject the argument as well. Appellant bases his argument, in part, upon

an idea that a trial court has no authority to end a defendant's community

control, except for good behavior as provided for in R.C. 2929.15 (C). We

believe this reasoning is flawed. Courts, including this District and the

Supreme Court of Ohio, routinely reference the termination or revocation of

community control. State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110,
Athens App. No. 16CA16 8

821 N.E.2d 995; State v. Wolfson, 4th Dist. Lawrence No. 03CA25, 2004-

Ohio-2750, ¶ 8 (trial court’s decision to revoke community control may only

be reversed if the court abused its discretion). In our view, when a trial court

terminates or revokes a defendant's community control, it is implicit that the

term of community control ends. Although R.C. 2929.15 does not

specifically label the decision to impose a prison term for a community

control violation as a termination or revocation of the community control,

for all intents and purposes it is nevertheless ended. We believe this

reasoning is further bolstered by the fact that when the trial court granted

Appellant judicial release after it had imposed a prison term for a violation

of Appellant's community control, which will be discussed more fully

below, it was required, under the judicial release statute, to place Appellant

on community control. R.C. 2929.20(K). If Appellant's community control

continued when he was sent to prison, there would have been no reason for

the trial court to have to affirmatively place him on community control after

he was judicially released.

{¶11} Further, even if we were to accept Appellant's argument that

community control continues even after it is "terminated" or "revoked" by a

trial court when it imposes a prison sentence on an offender, this Court has

held that "[c]ommunity control sanctions and post-release control are
Athens App. No. 16CA16 9

separate statutory procedures." State v. Leedy, 4th Dist. Meigs Nos. 13CA7,

13CA8, 2015-Ohio-1718, ¶ 10. In Leedy, which involved the trial court

ordering a period of community control to be served consecutively to a

prison term, we reasoned as follows:

"While it is true individuals leaving prison may or may not be
subject to post release control, community control sanctions are
a distinct penalty the trial court imposes once an individual is
found guilty of an offense. See generally R.C. 2929.15." Id.

As such, we "did not find that the trial court's sentence of five years of

community control conflicts with the discretion of the Adult Parole

Authority's to enforce post-prison conditions." Id.

{¶12} We additionally note that courts routinely reference defendants

being placed on post-release control for prison terms imposed after

community control violations, including this District. See State v. Hart, 4th

Dist. Athens No. 13CA8, 2014-Ohio-3733, ¶ 4; State v. Evans, 4th Dist.

Meigs No. 00CA003, 2000 WL 33538779, *5; State v. Slater, 5th Dist. Stark

No. 2007-CA-00111, 2008-Ohio-439 (involving imposition of community

control, revocation of community control and imposition of a prison term

with post-release control); State v. Cunningham, 2nd Dist. Clark Nos. 2014-

CA-99, 2014-CA-100, 2015-Ohio-2554 (involving a prison term with post-

release control being imposed for a community control violation). As such,

and in the absence of any authority to the contrary, we find no error occurs
Athens App. No. 16CA16 10

when a trial court imposes post-release control in connection with a prison

term imposed after a community control violation. We now reject the

argument raised under Appellant's sole assignment of error. Unfortunately,

however, our analysis does not end here, as we sua sponte address another

problem that rendered the trial court's imposition of post-release control

void.

{¶13} As set forth above, Appellant was initially sentenced to a five-

year term of community control after he pleaded guilty to two counts of

domestic violence in violation of R.C. 2919.25(A), both third degree

felonies. He was orally advised at his original sentencing hearing that the

trial court would impose a twelve-month term of imprisonment in the event

he violated his community control. The trial court did not specify whether it

would impose a twelve-month term on each count, or whether the term(s)

would run concurrently or consecutively, nor did it mention post-release

control. However, the judgment entry filed by the court stated Appellant

would be sentenced to an eighteen-month prison commitment as well as

three years of optional post-release control in the event he violated his

community control. A nunc pro tunc judgment entry was then filed stating

all of the conditions in the prior entry were incorrect, and stating instead that

Appellant would be sentenced to twelve-month concurrent terms of
Athens App. No. 16CA16 11

imprisonment on each count and would be subject to an optional three-year

term of post-release control in the event he violated his community control.

No new hearing was held in conjunction with the issuance of this corrected

entry.

{¶14} When Appellant subsequently violated the terms of his

community control, the trial court terminated Appellant’s community control

and imposed two twelve-month prison terms, to be served concurrently. The

trial court did not orally advise Appellant that he would be subject to a term

of post-release control; however, the judgment entry that followed once

again stated Appellant would be subject to an optional three-year term of

post-release control. Another nunc pro tunc judgment entry followed, but

made no changes pertinent herein.

{¶15} Approximately six months later, Appellant filed a motion for

judicial release, which the trial court granted. There is no hearing transcript

from the judicial release hearing contained in the record before us, but the

journal entry ordering judicial release stated that the trial court placed

Appellant on five years of community control under the Adult Parole

Authority, reserved the right to re-impose the sentence that was reduced in

the event of a subsequent violation, and stated Appellant was subject to an

optional three-year term of post-release control. Thereafter, Appellant
Athens App. No. 16CA16 12

violated the terms of his judicial release and community control, which he

had been placed on when he was granted judicial release.

{¶16} At the hearing that was held on the second violation, a

discussion was had on the record between the trial court and counsel

regarding the fact that Appellant had previously been sentenced to an

optional three-year term of post-release control, which should instead have

been a mandatory term. It appears it was decided that the mistake was a

clerical error. The trial court then revoked Appellant's judicial release, re-

imposed the balance of the previously-suspended sentence and informed

Appellant he was subject to three years of mandatory post-release control.

According to the Ohio Department of Corrections webpage, Appellant was

released from prison on March 17, 2017 and is currently being supervised by

the Adult Parole Authority for a period of three years.1

{¶17} As such, this case presents us with a scenario where Appellant

was initially sentenced to a term of community control, which is controlled

by one statute, but then was sent to prison, granted judicial release and then

returned to prison, which is controlled by another statute. Accordingly, a

review of these pertinent statutes is necessary in order to explain why we

1
State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 974 N.E.2d 516, ¶ 8, 10 (court
can take judicial notice of judicial opinions and public records accessible from the internet).
Athens App. No. 16CA16 13

have concluded the post-release control portion of Appellant's sentence is

void, and why we do not reach the merits of Appellant's arguments.

{¶18} With regard to Appellant's original sentence of community

control, R.C. 2929.19, which governs sentencing hearings, provides in

section (A)(4) that when a court determines at a sentencing hearing that a

community control sanction should be imposed, the court must do the

following:

"The court shall notify the offender that, if the conditions of the
sanction are violated, if the offender commits a violation of law,
or if the offender leaves this state without the permission of the
court or the offender's probation officer, the court may impose a
longer time under the same sanction, may impose a more
restrictive sanction, or may impose a prison term on the
offender and shall indicate the specific prison term that may be
imposed as a sanction for the violation, as selected by the court
from the range of prison terms for the offense pursuant to
section 2929.14 of the Revised Code." (Emphasis added).

R.C. 2929.15 governs community control sanctions and provides in section

(B)(1) the penalties that may be imposed by the trial court in the event

conditions of community control are violated, which include:

"(a) A longer time under the same sanction if the total time
under the sanctions does not exceed the five-year limit specified
in division (A) of this section;
(b) A more restrictive sanction under section 2929.16, 2929.17,
or 2929.18 of the Revised Code;
(c) A prison term on the offender pursuant to section 2929.14 of
the Revised Code." (Emphasis added).

R.C. 2929.15 further provides in section (B)(3) as follows:
Athens App. No. 16CA16 14

"[t]he prison term, if any, imposed upon a violator pursuant to
this division shall be within the range of prison terms available
for the offense for which the sanction that was violated was
imposed and shall not exceed the prison term specified in the
notice provided to the offender at the sentencing hearing
pursuant to division (B)(2) of the section 2929.19 of the
Revised Code."

{¶19} The Supreme Court of Ohio in State v. Brooks, 103 Ohio St.3d

134, 2004-Ohio-4746, 814 N.E.2d 837, held at paragraph two of the syllabus

that "[p]ursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court

sentencing an offender to a community control sanction must, at the time of

the sentencing hearing, notify the offender of the specific prison term that

may be imposed for a violation of the conditions of the sanction, as a

prerequisite to imposing a prison term on the offender for a subsequent

violation." (Emphasis added). The Eighth District Court of Appeals has

interpreted the holding in Brooks to mean that the trial court must only

inform a defendant of the specific prison term at the original sentencing

hearing, and is not required to give all of the other advisements, including

advisements related to post-release control. State v. Harris, 8th Dist.

Cuyahoga No. 89971, 2008-Ohio-2175, ¶ 7 (* * * there is no requirement

that the court imposing community control sanctions must inform the

defendant that if he is later sentenced to a term of imprisonment for a

violation of the conditions of his sanctions, then post-release control may be
Athens App. No. 16CA16 15

imposed. These contingencies are not part of the 'specific prison term' that

can be imposed in the event of a future violation of the conditions of post-

release control."); State v. Oulhint, 8th Dist. Cuyahoga No. 99296, 2013-

Ohio-3250, ¶ 12 ("Absent from the above statutes [R.C. 2929.19 and R.C.

2929.15] is a requirement that a court that chooses to impose community

control sanctions as an initial sentence must inform the offender of

postrelease control. Such requirement applies, instead, when the trial court

chooses at the original sentencing hearing to impose the sanction of a prison

term."); citing R.C. 2967.28(B) and 2929.19(B)(3); see also State v. Parker,

5th Dist. Stark Nos. 2010CA00148, 2010CA00149, 2011-Ohio-595, ¶ 30. In

light of the foregoing, despite the trial court's failure to mention post-release

control at Appellant's original sentencing hearing in which the trial court

imposed a community control sanction, which we would normally consider

to be a post-release control notification error, we find no error.

{¶20} Here, we do find that an error occurred with regard to the

imposition of post-release control at the time Appellant's community control

was terminated and Appellant was sentenced to prison. In State v. Fraley,

supra, at ¶ 17, the Supreme Court of Ohio reasoned that "[f]ollowing a

community control violation, the trial court conducts a second sentencing

hearing. At this second hearing, the court sentences the offender anew and
Athens App. No. 16CA16 16

must comply with the relevant sentencing statutes." The decision of the

Supreme Court was split in this case, with Chief Justice Moyer dissenting

based upon his belief "that community control-violation hearings are not

sentencing hearings." Id. at ¶ 22. The dissenting opinion went on to state

that "[t]he application of these basic principles of felony sentencing in an

R.C. 2929.15(B) hearing does not transform that proceeding into an R.C.

2929.19 sentencing hearing." Id. at ¶ 23. Despite the disagreement, the

majority opinion concluded that each new community control violation

hearing in effect is a new sentencing hearing where the defendant is

sentenced "anew." Id. at ¶ 17.

{¶21} The Oulhint Court has reasoned as follows with regard to the

holding in Fraley:

"We construe the holding of the Supreme Court in Fraley
narrowly to mean that a trial court that fails to notify a
defendant of the specific penalty he will face upon a violation
of community control sanctions at the initial sentencing may
'cure' that failure at a subsequent violation hearing by then
advising the defendant of the definite term of imprisonment that
may be imposed upon any subsequent finding of violation. We
find nothing in the statute or Fraley that requires a legally
adequate notification in the first instance be given over and over
again." Oulhint at ¶ 19.

Applying the rationale of Brooks, in light of Fraley, Harris and Oulhint, it

appears that the trial court did not err in failing to mention post-release

control at Appellant's original sentencing hearing, as it was not part of the
Athens App. No. 16CA16 17

"specific" prison term. Further, it appears that when Appellant violated his

community control and was brought before the trial court and sentenced to

prison, that hearing was not actually a First Stage Revocation Hearing, as

referred to by the trial court, but under Fraley was a second sentencing

hearing in which Appellant was sentenced "anew" to two concurrent twelve-

month terms of imprisonment. Importantly, the trial court failed to mention

post-release control at this second sentencing hearing as well.

{¶22} Although the judgment entry stated Appellant was to be subject

to an optional three-year term of post-release control, the trial court did not

notify Appellant of this fact on the record during the sentencing. Under R.C.

2929.19(B)(2)(c) and (e), a trial court must notify certain felony offenders at

the sentencing hearing that: 1.) the offender is subject to statutorily

mandated post-release control; and 2.) the parole board may impose a prison

term of up to one-half of the offender's originally-imposed prison term if the

offender violates the post-release control conditions. Not only is a trial court

required to notify the offender about post-release control at the sentencing

hearing, it is further required to incorporate that notice into its journal entry

imposing sentence. However, the main focus of the post-release control

sentencing statutes is on the notification itself and not on the sentencing

entry. (Citations and quotations omitted.) State v. Adkins, 4th Dist. Lawrence
Athens App. No. 16CA16 18

No. 13CA17, 2014-Ohio-3389, 2014 WL 3824030, ¶ 36. “When a trial

court fails to provide the required notification at either the sentencing

hearing or in the sentencing entry, that part of the sentence is void and must

be set aside.” (Emphasis sic.) Id. at ¶ 37; citing State v. Fischer, supra, at

¶¶ 27-29; see also State v. Adams, 4th Dist. Lawrence No. 15CA2, 2016-

Ohio-7772, ¶ 87. “ ‘[I]n most cases, the prison sanction is not void and

therefore “only the offending portion of the sentence is subject to review and

correction.” ’ ” Id.; quoting State v. Holdcroft, 137 Ohio St.3d 526, 2013-

Ohio-5014, 1 N.E.3d 382, ¶ 7; quoting Fischer at ¶ 27.

{¶23} Because the trial court failed to notify Appellant that he would

be subject to post-release control at this second sentencing hearing where the

trial court imposed a prison term and, in effect under Fraley, sentenced

Appellant "anew," this failure constitutes a notification error resulting in the

imposition of post-release control being void. We further note that because

Appellant's underlying convictions were two 3rd degree felonies that were

offenses of violence, and because the trial court was required to impose a

sentence from the range for the underlying offense, he should have been

subject to a mandatory three-year term of post-release control, not an

optional three-year term. R.C. 2967.28(B)(3). See State v. Nutt, 10th Dist.

Franklin No. 00AP-190, 2000 WL 1537898, *4 (reasoning that once a trial
Athens App. No. 16CA16 19

court imposes a prison term, rather than a more restrictive community

control sanction, post-release control was mandatory under R.C.

2967.28(B).)

{¶24} The trial court attempted to correct this error when Appellant's

judicial release was revoked and he was returned to prison. The record

reveals that during the hearing in which Appellant's judicial release was

revoked, the trial court and counsel engaged in a discussion regarding the

fact that Appellant had been previously sentenced to an optional three-year

term of post-release control rather than a mandatory term. After deciding

the error was a clerical one, the trial court sentenced Appellant to prison for

the time remaining on his previously-suspended sentence, which was

approximately two and a half months, and informed him he was now subject

to a mandatory three-year term of post-release control. This attempt by the

trial court to cure the error failed.

{¶25} As indicated above, judicial release is governed by a different

statute than community control. R.C. 2929.20, which governs judicial

release, provides in section (K) that when a court grants an offender judicial

release, it "shall reserve the right to reimpose the sentence that it reduced if

the offender violates the sanction." In State v. McConnell, 143 Ohio App.3d

219, 757 N.E.2d 1187 (3rd Dist.2001), the court reasoned that R.C.
 Athens App. No. 16CA16 20

2929.20(I) [now (K)] "permits the trial court merely to reinstate the reduced,

original prison term upon a violation of the conditions of early judicial

release." Further, in State v. Abrams, 7th Dist. Mahoning No. 15 MA 0217,

2016-Ohio-5581, ¶ 14, the court stated as follows:

"* * * according to the explicit language of the judicial release
statute, the trial court is bound by the specific term of
incarceration imposed at the original sentencing hearing. This
means the offender serves the remainder of the exact term of
incarceration that has only been suspended by the grant of
judicial release. R.C. 2929.20(K), see also State v. Mann, 3rd
Dist. No. 3-03-42, 2004-Ohio-4703, ¶ 13; State v. Darst, 170
Ohio App.3d 482, 2007-Ohio-1151, 867 N.E.2d 882, ¶ 35.”

Because the trial court is limited to reimposing the sentence previously

imposed upon a violation of judicial release, it stands to reason that the court

cannot, at that time, correct a sentencing error that occurred when the

sentence was originally imposed. This is because the sentencing at a judicial

release revocation hearing is much more limited than the sentencing at a

community control revocation hearing, which was the situation in Fraley,

supra, where the court reasoned an offender is sentenced "anew."

{¶26} Further, and unfortunately, because Appellant has now already

completed his prison sentence, the trial court is without jurisdiction to correct

his sentence. "[O]nce an offender has completed the prison term imposed in

his original sentence, he cannot be subjected to another sentencing to correct

the trial court's flawed imposition of postrelease control." State v. Bloomer,
 Athens App. No. 16CA16 21

122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 70; citing State v.

Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 18, and State

v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, at

syllabus (overruled on other grounds by State v. Fischer, supra). “[W]here a

defendant has served his term of incarceration on the underlying sentence, the

parole authority lacks the authority to impose post-release control upon a

defendant and there can be no remand for resentencing.” State v. Biondo, 11th

Dist. Portage No. 2008-P-0028, 2008-Ohio-6560, ¶ 28; citing Hernandez v.

Kelly, 108 Ohio St.3d 395, 844 N.E.2d 301, 2006-Ohio-126; State ex rel.

Cruzado v. Zaleski, 111 Ohio St.3d 353, 856 N.E.2d 263, 2006-Ohio-5795.

Therefore, the post-release control portion of Appellant's is void and cannot

now be corrected.

{¶27} Accordingly, having found no merit to the assignment of error

raised by Appellant, it is overruled. However, having sua sponte found the

trial court's imposition of post-release control in this case to be void and the

trial court to be without jurisdiction to correct it because Appellant has already

completed his prison term, the judgment of the trial court must be vacated

with regard to the imposition of post-release control. We additionally order

Appellant discharged from further supervision by the Adult Parole Authority.
 Athens App. No. 16CA16 22

State v. Biondo, supra, at ¶ 28 (a “defendant who has served his prison term is

entitled to release from post-release control.”).

JUDGMENT AFFIRMED IN
PART AND VACATED IN PART.
Athens App. No. 16CA16 23

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED IN PART AND
VACATED IN PART. Appellant and Appellee shall split costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Athens County Common Pleas Court to carry this judgment into
execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Concurs in Judgment Only.

For the Court,

BY: _____________________________
Matthew W. McFarland, Judge

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.