State v. Pishok

[Cite as State v. Pishok, 2021-Ohio-3405.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-21-02

v.

DAVID J. PISHOK,
OPINION
DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court
Trial Court No. 2017 CR 164

Judgment Affirmed

Date of Decision: September 27, 2021

APPEARANCES:

David J. Pishok, Appellant

Derek W. DeVine for Appellee
Case No. 13-21-02

SHAW, J.

{¶1} This appeal, having been placed on the accelerated calendar, is sua

sponte being assigned and considered on the regular calendar pursuant to Loc.R.

12(1). Under the authority of Loc.R. 12(5), we have elected to issue a full opinion

in lieu of a judgment entry.

{¶2} Defendant-appellant, David J. Pishok (“Pishok”), appeals the January

20, 2021 Judgment Entry of the Seneca County Court of Common Pleas, overruling

his “Motion to Vacate and Terminate From Expired Journalized Sentence the

Court’s Invalidly Imposed Postrelease Control Sanction.”

Prior Procedural History

{¶3} In July 2001, the Seneca County Grand Jury returned a nine-count

indictment against Pishok for various felonies associated with the armed robbery of

The Gallery antique store in Tiffin, Ohio. Pishok plead guilty to seven of the counts

which included one first-degree felony, one second-degree felony, two third-degree

felonies, two fourth-degree felonies, and one fifth-degree felony. Pishok was

sentenced on January 29, 2002, to an aggregate sentence of twenty-one years in

prison.

{¶4} In 2010, Pishok appealed the trial court’s denial of his motion for

resentencing on the grounds that his postrelease control was improperly imposed.

On September 7, 2010, this Court sustained the first assignment of error and

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remanded the case to the trial court for a resentencing hearing so that Pishok could

be properly notified of postrelease control. State v. Pishok, 3d Dist. No. 13-10-12

(Sept. 7, 2010).

{¶5} On November 10, 2010, upon remand, the trial court held a

resentencing hearing.

{¶6} On November 23, 2010, the trial court filed its “Judgment Entry of

Sentence,” imposing the same prison terms as stated in its original 2002 judgment

entry of sentencing, but informing Pishok as to the relative postrelease control

sanctions for each offense, and giving him credit for all of the time served to date.

The trial court subsequently issued a nunc pro tunc to its November 23, 2010

Judgment Entry correcting typographical errors.

{¶7} On August 3, 2017, Pishok filed a “Motion to Vacate and Terminate

Previously Ordered Void Portions of the Trial Court’s Erroneously Imposed Post-

Release Control from Sentences,” claiming that the trial court was without authority

to impose the periods of postrelease control at his 2010 resentencing because he had

already served the individual prison terms in the aggregate prison sentence for some

of the offenses, and because the trial court had failed to properly impose postrelease

control on one of the counts.

{¶8} On September 22, 2017, the trial court overruled Pishok’s motion.

Pishok appealed and, relying upon the Supreme Court of Ohio’s opinion in State v.

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Holdcroft, this Court granted Pishok partial relief. See Holdcroft, 137 Ohio St.3d

526, 2013-Ohio-5014. In applying the holding in Holdcroft, we determined that

because Pishok had already served the prison terms imposed for Counts One, Five,

Six, and Nine at the time of the 2010 resentencing hearing, the trial court was

without the authority to impose a term of postrelease control as a sanction for these

offenses, despite the fact that he remained in prison for other offenses. We also

remanded the case to the trial court to correct the judgment entry of sentencing to

reflect the trial court’s proper imposition of a mandatory three-year period of

postrelease control for Count Three, as stated by the trial court at the November

2010 resentencing hearing.

{¶9} On April 22, 2019, upon remand from this Court, the trial court issued

a Judgment Entry of Sentence Nunc Pro Tunc to November 10, 2010, noting that

the period of postrelease control “is mandatory in this case on Counts Three, Four,

and Seven for a period of three (3) years. With days of credit, the Defendant has

already served the sentences imposed for Counts One, Five, Six, and Nine, and no

postrelease control is ordered for those sentences.” (April 22, 2019 JE at 6-7).

{¶10} On October 6, 2020, Pishok filed a “Motion to Vacate and Terminate

From Expired Journalized Sentence the Court’s Invalidly Imposed Postrelease

Control Sanction,” arguing that the trial court was not authorized to impose a

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postrelease control sanction for Count Three because he had already served his

prison term for that offense.

{¶11} On January 20, 2021, the trial court denied the motion, finding

Pishok’s claims were barred by the doctrine of res judicata.

{¶12} Pishok filed this appeal, asserting the following assignments of error.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT-APPELLANT IN ITS APRIL 22, 2019 NUNC
PRO TUNC SENTENCING ENTRY WITH RESPECT TO
COUNT THREE OF THE INDICTMENT (COMPLICITY TO
ROBBERY, A SECOND DEGREE FELONY), WHEN AFTER
THE DEFENDANT-APPELLANT HAD ALREADY
COMPLETED THE COURT’S CONSECUTIVELY ORDERED
SEVEN (7) YEAR STATED PRISON SANCTION IN ITS
ENTIRETY FOR THIS PARTICULAR OFFENSE, THE
COURT EMENDED COUNT THREE’S ERRONEOUSLY
IMPOSED DISCRETIONARY POSTRELEASE CONTROL
SANCTION WITH A MANDATORY THREE (3) YEAR TERM
OF POSTRELEASE CONTROL.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT’S APRIL 22, 2019 EMENDATION OF
COUNT THREE’S POSTRELEASE CONTROL SANCTION
FROM A DISCRETIONARY POSTRELEASE CONTROL
SANCTION TO A MANDATORY THREE (3) YEAR TERM OF
POSTRELEASE CONTROL IS NULL AND VOID, AND
UNENFORCEABLE BY THE OHIO ADULT PAROLE
AUTHORITY.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT-APPELLANT WHEN THE COURT DENIED

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HIS OCTOBER 6, 2020 MOTION TO VACATE AND
TERMINATE FROM EXPIRED JOURNALIZED SENTENCE
THE COURT’S INVALIDLY IMPOSED POSTRELEASE
CONTROL SANCTION.

{¶13} Due to the nature of the arguments raised in the assignments of error,

we elect to discuss them together.

{¶14} On appeal, Pishok again relies upon the Supreme Court’s holding in

State v. Holdcroft to argue that the trial court erred when it imposed upon him a

mandatory three-year period of postrelease control in its April 22, 2019 “Judgment

Entry of Sentence Nunc Pro Tunc to November 10, 2010.” Holdcroft, supra, 137

Ohio St.3d 526. Specifically, Pishok relies upon Holdcroft to argue that a trial

court’s improper imposition of a postrelease control sanction causes a sentence to

be partially void, and that a trial court only retains jurisdiction to remedy the

imposition of postrelease control if the underlying prison term has not expired.

Pishok maintains that he had served the prison term for Count Three prior to the

trial court issuing its “Judgment Entry of Sentence Nunc Pro Tunc to November 10,

2010” on April 22, 2019, and therefore the trial court was not authorized to impose

a postrelease control sanction upon him for that count.

Legal Authority

{¶15} The Supreme Court of Ohio has recently clarified its jurisprudence on

the issues raised by Pishok on appeal in State v. Hudson, 161 Ohio St. 3d 166, 2020-

Ohio-3849. In Hudson, the Supreme Court specifically overruled its prior case

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authority “holding that a trial court’s failure to properly impose postrelease control

renders the sentence—or that part of the sentence—void and permits it to be

corrected at any time before it expires.” Id. at 12, citing State v. Jordan, 104 Ohio

St.3d 21, 2004-Ohio-6085, ¶ 23; State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d

353, 2006-Ohio-5795, ¶ 28; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-

1197¶ 6; State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph one of the

syllabus; State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, ¶ 7; State v.

Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 7; State v. Grimes, 151 Ohio

St.3d 19, 2017-Ohio-2927, ¶ 8.

{¶16} In recognizing “that continued adherence to this caselaw was no

longer tenable,” the Supreme Court reiterated its holding in State v. Harper, which

overruled Holdcroft and others, and “held that when the trial court has subject-

matter jurisdiction over the crime and personal jurisdiction over the accused, the

failure to properly impose postrelease control in a sentence renders that sentence

voidable, not void.” Hudson¸ 161 Ohio St. 3d 166, 2020-Ohio-3849, ¶ 14, citing

State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, at ¶ 39-42.

{¶17} In general, a voidable judgment may be set aside only if successfully

challenged on direct appeal. Hudson at ¶ 26. We conclude that the Supreme

Court’s decision in Harper and its progeny controls the resolution of this appeal.

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Analysis

{¶18} The record in this case establishes that the trial court had the

constitutional and statutory power to proceed to judgment, therefore, any error in

imposing postrelease control was an error in the exercise of jurisdiction. See Harper

at ¶ 41. Such an error could have been objected to in the trial court and may have

been reversible error on direct appeal, but it did not render any part of Pishok’s

sentence void. See id. Therefore, because Pishok could have raised on direct appeal

his argument that the trial court failed to properly impose postrelease control, it is

now barred by the doctrine of res judicata and he is precluded from collaterally

attacking the trial court’s sentencing entry at this time. See id.; Hudson, 161 Ohio

St. 3d 166, 2020-Ohio-3849, ¶ 16. Consequently, we do not find that the trial court

erred when it overruled Pishok’s “Motion to Vacate and Terminate From Expired

Journalized Sentence the Court’s Invalidly Imposed Postrelease Control Sanction”

on the basis that his claims were barred by the doctrine of res judicata.

{¶19} Accordingly, for the aforementioned reasons, the assignments of error

are overruled and the Judgment Entry of the Seneca County Court of Common Pleas

is affirmed.

Judgment Affirmed

ZIMMERMAN, J., concurs.

/jlr

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WILLAMOWSKI, J., Dissenting.

{¶20} I respectfully dissent from the majority opinion. Because Pishok

finished the prison sanction imposed for his conviction on the third count against

him, I would hold that the trial court did not have jurisdiction to issue a nunc pro

tunc entry that corrected the relevant sentencing entry. For the following reasons, I

would find that the nunc pro tunc entry issued by the trial court in 2019 is void and

that Pishok’s challenge is not, therefore, barred by the doctrine of res judicata.

{¶21} In this case, the trial court imposed prison terms on Pishok for seven

convictions in January of 2002. Doc. 47. However, the trial court failed to properly

impose post-release control. Doc. 219. In 2010, the trial court resentenced Pishok

to address this issue. Doc. 219. The trial court ultimately

ordered Pishok to first serve the nine-year prison term for Count
One, followed by the seven-year prison term for Count Three,
followed by the three-year prison term for Count Four, followed
by the two-year prison term for Count Seven, for a total aggregate
prison term of twenty-one years. The eleven-month prison terms
for Counts Five, Six and Nine were ordered ‘to be served
concurrently with each other and concurrent to all other
sentences.’

State v. Pishok, 3d Dist. No. 13-17-33 (Feb. 20, 2018), quoting Doc. 219. However,

this resentencing entry stated that the third count carried a term of post-release

control of “up to three (3) years.” Doc. 219.

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{¶22} In 2017, Pishok filed a motion that challenged the imposition of post-

release control in the resentencing entry from 2010. Doc. 262. In 2018, this Court,

after examining the record, determined the following:

We further note that with respect to Count Three, the December
20, 2010 Judgment Entry of Sentence erroneously states that ‘[a]s
to Count Three, post-release control is mandatory for a period up
to three (3) years.’ (Doc. No. 219 at 6) (emphasis added).
However, the trial court properly notified Pishok at the
sentencing hearing that he was subject to a mandatory three-year
period for the second degree felony offense stated in Count Three.
* * * [T]he trial court may issue a nunc pro tunc entry reflecting
the proper notification of postrelease control on Count Three, so
long as Pishok has not already served his consecutive time for the
seven-year prison term.

(Emphasis sic.) Pishok, No. 13-17-33, supra. Fourteen months later, on April 22,

2019, the trial court issued a nunc pro tunc entry (“the Nunc Pro Tunc Entry”) that

corrected the stated term of post-release control for Count Three. Doc. 273.

{¶23} However, Pishok appears to have completed the prison term imposed

for Count Three before the trial court issued the Nunc Pro Tunc Entry. The seven-

year sentence for Count Three was to be served following the nine-year sentence

for Count One. Pishok, No. 13-17-33, supra, quoting Doc. 219. Thus, after sixteen

years in prison, Pishok was set to complete the sentence imposed for Count Three.

Id. Pishok was sentenced in January of 2002 and had 182 days of jail time credit,

but the Nunc Pro Tunc Entry was not issued until April of 2019. Doc. 47, 273.

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{¶24} The question before this Court is whether Pishok’s challenge to the

Nunc Pro Tunc Entry from 2019 is barred by res judicata. The answer to this

question hinges on whether this challenged Nunc Pro Tunc Entry is void.

[a] void judgment is rendered by a court without jurisdiction. It
is a mere nullity and can be disregarded. It can be attacked in
collateral proceedings. * * * [Tari v. State, 117 Ohio St. 481, 494,
159 N.E. 594, (1927)]. A voidable judgment is one pronounced by
a court with jurisdiction. * * * [U]nless it is vacated on appeal, a
voidable judgment has the force of a valid legal judgment,
regardless of whether it is right or wrong. Id.

State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 17.

Thus, a voidable sentence entry is subject to res judicata while a void sentence entry

may be “challenge[d] * * * at any time * * *.” State v. Harper, 160 Ohio St.3d 480,

2020-Ohio-2913, 159 N.E.3d 248, ¶ 18.

{¶25} The majority correctly notes that the Ohio Supreme Court recently

realigned its jurisprudence on this issue by redefining what qualifies as a voidable

sentence as opposed to a void sentence. State v. Harper, supra, at ¶ 42-43. In State

v. Harper, the Ohio Supreme Court overruled a line of cases that had departed from

the traditional understanding of what constituted a void as opposed to a voidable

sentence. Id. at ¶ 4-5. Under this now overruled line of cases, a trial court’s failure

to impose post-release control in a sentencing entry rendered a sentence partially

void. Id. at ¶ 29, citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817

N.E.2d 864, ¶ 23, overruled by Harper.

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{¶26} For this reason, “the failure to properly impose postrelease control

rendered the sentence void and permitted it to be corrected at any time prior to the

expiration of the journalized sentence.” Harper at ¶ 30. In State v. Holdcroft, the

Ohio Supreme Court set forth three principles that governed this line of cases:

First, when a sentence is subject to direct review, it may be
modified; second, when the prison-sanction portion of a sentence
that also includes a void sanction has not been completely served,
the void sanction may be modified; and third, when the entirety
of a prison sanction has been served, the defendant’s expectation
in finality in his sentence becomes paramount, and his sentence
for that crime may no longer be modified.

State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 18,

reversed in part by Harper, supra, at ¶ 43.

{¶27} However, in Harper and its progeny, the Ohio Supreme Court returned

to “the traditional understanding of void and voidable sentences * * *.” Harper at

¶ 43. The Ohio Supreme Court held:

When a case is within a court’s subject-matter jurisdiction and
the accused is properly before the court, any error in the exercise
of that jurisdiction in imposing postrelease control renders the
court’s judgment voidable, permitting the sentence to be set aside
if the error has been successfully challenged on direct appeal.

In this case, the common pleas court had subject-matter
jurisdiction over the case and personal jurisdiction over the
accused. Because the court had the constitutional and statutory
power to enter a finding of guilt and impose a sentence, any error
in the exercise of its jurisdiction in failing to properly impose
postrelease control rendered the judgment of conviction voidable,
not void, and it is not subject to collateral attack. Therefore, to the
extent any prior case conflicts with our holding today, it is overruled.

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(Emphasis added.) Harper, supra, at ¶ 4-5. Thus, the failure to properly impose

post-release control now makes a sentence voidable rather than partially void. Id.

at ¶ 5. For this reason, if such an error is not challenged on direct appeal from the

judgment of conviction, res judicata operates to prevent a trial court from

subsequently correcting its error and imposing post-release control. Id. at ¶ 43.

{¶28} Harper and its progeny overruled the second principle enunciated in

Holdcroft. See Harper, supra, at ¶ 43; Holdcroft, supra, at ¶ 18. However, this

Court has previously held that the third principle in Holdcroft was left unaltered by

this jurisprudential realignment. State v. Thompson, 3d Dist. Marion No. 9-20-19,

2021-Ohio-642, ¶ 14. In Thompson, we noted that Holdcroft’s second and third

principles were based “on different foundations.” Id. at ¶ 12. In Holdcroft, the Ohio

Supreme Court stated that the

sanction-correction rule is based on principles of res judicata—
while a void sanction may be modified, a valid sanction generally
cannot. [State v.] Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, at ¶ 17 [(reversed by Harper, supra)]. But once a valid
prison sanction has been served, it is no longer res judicata that
acts as a bar to modification; rather, the court has lost jurisdiction
to modify the sentence.

Holdcroft, supra, at ¶ 14. Based on this language, we concluded the following:

[O]nce a defendant has completed his or her sentence, a trial court
does not have jurisdiction to resentence that defendant.
Holdcroft, supra, at ¶ 14, 18. Harper affected the ability of trial
courts to resentence a defendant before his or her sentence has
been completed. Harper, supra, at ¶ 42-43. But Harper does not

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appear to affect the jurisdictional limitations on a trial court’s
ability to resentence a defendant after his or her sentence has been
completed.

Further, we also note that the third principle in Holdcroft is
consistent with the reasons that the Ohio Supreme Court gave for
overturning the second principle in Holdcroft. In State v.
Henderson, the Ohio Supreme Court stated that the reason for the
jurisprudential realignment in Harper was to ‘restore
predictability and finality to trial-court judgments and criminal
sentences.’ State v. Henderson, [161 Ohio St.3d 285,] 2020-Ohio-
4784, [162] N.E.3d [776], ¶ 33. The third principle recognizes a
jurisdictional limitation on the ability of a trial court to resentence
a defendant after a sentence has been completed. This limitation
protects the ‘predictability and finality’ of ‘trial-court judgments
and criminal sentences.’ Id.

(Emphasis sic.) Thompson at ¶ 14-15.

{¶29} Other courts in the state have recognized the apparent survival of the

third principle in Holdcroft. State v. Ingels, 1st Dist. Hamilton Nos. C-180469, C-

180470, and C-180471, 2020-Ohio-4367, ¶ 10; State v. Starnes, 9th Dist. Lorain

Nos. 19CA011580, 19CA011581, 19CA011582, 19CA011583, and 19CA011584,

2021-Ohio-885, ¶ 4-7; State v. Floyd, 8th Dist. Cuyahoga No. 109963, 2021-Ohio-

3099, ¶ 20; State v. Brasher, 2021-Ohio-1688, 170 N.E.3d 920, ¶ 21 (12th Dist.).

{¶30} Turning to the facts of the case before this Court, Pishok had

apparently completed the sentence imposed for Count Three before the trial court

issued the Nunc Pro Tunc Entry on April 22, 2019. See State v. Qualls, 131 Ohio

St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 24 (holding that a nunc pro tunc

entry can correct a clerical error in a sentencing entry “as long as the correction is

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accomplished prior to the defendant’s completion of his prison term”). See also

State v. Spicer, 5th Dist. Perry No. 20CA00013, 2021-Ohio-386, ¶ 15; State v.

Huber, 2d Dist. Clark No. 2013 CA 16, 2014-Ohio-2095, ¶ 9.

{¶31} Since Pishok had completed his sentence for Count Three, the trial

court did not have jurisdiction to issue the April 22, 2019 Nunc Pro Tunc Entry. For

this reason, this Nunc Pro Tunc Entry was not voidable but void and could,

therefore, be challenged at any time. As such, the doctrine of res judicata does not

operate to bar Pishok’s challenge. Accordingly, I respectfully dissent from the

majority’s conclusion. I would reverse the decision of the trial court and vacate the

April 22, 2019 Nunc Pro Tunc Entry as a void sentencing entry.

/jlr

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