State v. Hendricks

[Cite as State v. Hendricks, 2017-Ohio-259.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. CT2016-0010
:
CHRISTOPHER HENDRICKS :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No. CR
2015-0161

JUDGMENT: AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED FOR
RESENTENCING

DATE OF JUDGMENT ENTRY: January 18, 2017

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

D. MICHAEL HADDOX RICHARD L. CROSBY IIII
MUSKINGUM CO. PROSECUTOR RENDIGS, FRY, KIELY & DENNIS LLP
GERALD V. ANDERSON II 600 Vine Street, Ste. 2650
27 North Fifth St., P.O. Box 189 Cincinnati, OH 45202
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2016-
0010 2

Delaney, J.

{¶1} Appellant Christopher Hendricks appeals from the January 13, 2016 Entry

of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose when appellant and co-defendant Randall Cremeans

entered a house shared by Brent Mayle and Tameka Alexander.1 The defendants sought

Mayle and items of appellant’s that had allegedly been stolen. Present were Alexander,

several adult friends, and her two minor children. The two defendants drew firearms and

threatened Alexander into calling Mayle and telling him to come home. Appellant put his

gun to Alexander’s pregnant stomach and to her two minor children to convince her to

reveal Mayle’s whereabouts. Appellant threatened Mayle that if he didn’t come home, he

would find “seven stinking bodies.” The adult witnesses were tied up and their cell phones

seized. Appellant wanted to take the victims with them as they left the scene, but

Cremeans told him there wasn’t enough room and suggested they take the victims’ I.D.s

instead to identify “snitches” later.

{¶3} Appellant was charged by indictment as follows: Count I, aggravated

burglary pursuant to R.C. 2911.11(A)(2), a felony of the first degree; Counts II through V,

kidnapping pursuant to R.C. 2905.01(A)(2), all felonies of the first degree; Counts VI

through VIII, kidnapping pursuant to R.C. 2905.01(A)(3), all felonies of the first degree;

Counts IX through XIII, aggravated robbery pursuant to R.C. 2911.01(A)(1), all felonies

of the first degree; and Count XIV, having weapons while under disability pursuant to R.C.

1The co-defendant’s direct appeal from his convictions and sentence is State v.
Cremeans, 5th Dist. Muskingum No. CT2015–0062, 2016-Ohio-7930.
Muskingum County, Case No. CT2016-
0010 3

2923.13(A)(2), a felony of the third degree. Counts I through XIII are accompanied by

firearm specifications pursuant to R.C. 2941.145.

{¶4} Appellant entered pleas of not guilty and moved for a change of venue. The

motion was later withdrawn.

{¶5} On November 16, 2015, appellant appeared before the trial court and

changed his pleas of not guilty to ones of guilty as charged in the indictment. The trial

court deferred sentencing pending a pre-sentence investigation. On January 12, 2016,

appellant was sentenced to an aggregate prison term of 30 years.

{¶6} Appellant now appeals from the trial court’s sentencing entry of January 13,

2016.

{¶7} Appellant raises six assignments of error:

ASSIGNMENTS OF ERROR

{¶8} “I. THE SENTENCE IS DISPROPORTIONATE/INCONSISTENT

CONTRARY TO R.C. 2929.11(B).”

{¶9} “II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN

HIS ATTORNEY FAILED TO FILE A MOTION TO SUPPRESS THE ALLEGED VICTIM’S

IDENTIFICATION AS THE STATE CLEARLY VIOLATED THE MINIMUM

REQUIREMENTS OF A PHOTO IDENTIFICATION SET FORTH IN R.C. 2933.03.

{¶10} “III. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN
Muskingum County, Case No. CT2016-
0010 4

HIS ATTORNEY FAILED TO ADVISE HIM OF THE MINIMUM AND MAXIMUM

PENALTIES HE FACED UPON PLEADING GUILTY.”

{¶11} “IV. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND

FEDERAL CONSTITUTIONAL RIGHTS AND CRIM.R. 11 BY FAILING TO ENSURE

THAT HE UNDERSTOOD THE MAXIMUM PENALTIES HE FACED UPON PLEADING

GUILTY.”

{¶12} “V. APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE

COURT DID NOT PROPERLY ADVISE DEFENDANT CONCERNING COMPULSORY

PROCESS.”

{¶13} “VI. APPELLANT’S SENTENCE SHOULD BE VOIDED AS THE COURT

FAILED TO INCLUDE THE DETAILS OF POST RELEASE CONTROL INTO THE

SENTENCING ENTRY AS REQUIRED BY R.C. 2929.19(B)(3).”

ANALYSIS

I.

{¶14} In his first assignment of error, appellant argues his sentence is

disproportionate when compared to that of his co-defendant. We disagree.

{¶15} Appellant summarily argues his sentence is disproportionate to the severity

of his conduct when compared with the conduct of Cremeans.2 We note both defendants

claimed the other was more culpable; in the instant case, despite appellant’s disavowals

of terrorizing the victims, he pled guilty to the offenses. Appellee’s recitation of the facts

established appellant was at least as culpable as Cremeans. A felony sentence should

2 Appellant’s co-defendant also received an aggregate term of 30 years following his
convictions after trial by jury. Cremeans, supra, 2016-Ohio-7930, ¶ 29.
Muskingum County, Case No. CT2016-
0010 5

be proportionate to the severity of the offense committed so as not to “shock the sense

of justice in the community.” State v. Chaffin, 30 Ohio St.2d 13, 17, 282 N.E.2d 46 (1972);

R.C. 2929.11(B). A defendant alleging disproportionality in felony sentencing has the

burden of producing evidence to “indicate that his sentence is directly disproportionate to

sentences given to other offenders with similar records who have committed these

offenses * * *.” State v. Ewert, 5th Dist. Muskingum No. CT2012–0002, 2012-Ohio-2671,

2012 WL 2196326, ¶ 33, citing State v. Breeden, 8th Dist. Cuyahoga No. 84663, 2005-

Ohio-510, 2005 WL 315370, ¶ 81.

{¶16} Appellant has not provided any evidence his sentence is constitutionally

disproportionate. Instead, he argues no one was harmed and the victims lied. We find the

conduct alleged here, combined with appellant's significant criminal record, support the

trial court's sentence. We reject appellant’s comparison of the instant case with State v.

Moore, in which one co-defendant pled guilty to three charged offenses and was

sentenced to 30 years, when the second co-defendant went to trial, was convicted, and

was sentenced to consecutive terms totaling 27 years. 8th Dist. Cuyahoga No. 99788,

2014-Ohio-5135, 24 N.E.3d 1197, cause dismissed, 141 Ohio St.3d 1433, 2015-Ohio-

168, 23 N.E.3d 1178, and appeal not allowed, 142 Ohio St.3d 1475, 2015-Ohio-2104, 31

N.E.3d 654. In Moore, the appellate court determined the actions of the former were

“more egregious" than the actions of the latter, “so the large disparity in the sentences

raise[d] questions for appellate review.” Id. at ¶ 9. In the instant case, the record does

not support appellant’s assertion that he is less culpable than Cremeans.
Muskingum County, Case No. CT2016-
0010 6

{¶17} Appellant also ignores a fact significant to the trial court at sentencing:

appellant committed these crimes while awaiting sentencing upon a felony conviction of

aggravated assault in Franklin County.

{¶18} The trial court also referred to the P.S.I. repeatedly in sentencing appellant

but appellant did not include the P.S.I. in the record. In State v. Untied, 5th Dist.

Muskingum No. CT97–0018, 1998 WL 401768, *8 (Mar. 5, 1998), we noted appellate

review contemplates that the entire record be presented and if portions of the transcript

necessary to resolve issues are not included, we must presume regularity in the trial court

proceedings and affirm. The P.S.I. report could have been submitted under seal for our

review. Id. Absent the cited information and considering “the trial court's findings on the

record, we cannot say appellant's sentence was against the manifest weight of the

evidence or ‘contrary to law.’” State v. Henderson, 5th Dist. Stark No. 2004–CA–00215,

2005-Ohio-1644, 2005 WL 774039, ¶ 48, citing State v. Wallace, 5th Dist. Delaware No.

03–CA–A–07–043, 2004-Ohio-1694, 2004 WL 670684 and State v. Mills, 5th Dist.

Ashland No. 03–COA–001, 2003-Ohio-5083, 2003 WL 22208740.

{¶19} Appellant’s first assignment of error is overruled.

II., III.

{¶20} Appellant’s second and third assignments of error are related and will be

considered together. Appellant argues he was denied effective assistance of trial counsel

because counsel should have filed a motion to suppress and failed to advise him of the

minimum and maximum penalties. We disagree.

{¶21} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Muskingum County, Case No. CT2016-
0010 7

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158

(1955).

{¶22} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

{¶23} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

{¶24} First, appellant argues trial counsel was ineffective in failing to file a motion

to suppress the photo line-up identification of appellant by the victims, arguing the photo

line-up did not comply with R.C. 2933.83. Failure to file a suppression motion does not

per se constitute ineffective assistance of counsel. State v. Boyd, 5th Dist. Richland No.

12CA23, 2013–Ohio–1333, ¶ 24, citing State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–

Ohio–0448. Counsel can only be found ineffective for failing to file a motion to suppress

if, based on the record, the motion would have been granted. State v. Lavelle, 5th Dist.

No. 07 CA 130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–CA–88,
Muskingum County, Case No. CT2016-
0010 8

2007–Ohio–3009, at ¶ 86. Furthermore, “[w]here the record contains no evidence which

would justify the filing of a motion to suppress, the appellant has not met his burden of

proving that his attorney violated an essential duty by failing to file the motion.” State v.

Drummond, 111 Ohio St.3d 14, 41, 2006–Ohio–5084, 854 N.E.2d 1038, quoting State v.

Gibson, 69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th Dist.1980). See also, State v. Suiste,

5th Dist. No. 2007 CA 00252, 2008–Ohio–5012.

{¶25} To satisfy the prejudice prong of the Strickland test, a defendant must

additionally demonstrate that there was a reasonable probability that the motion to

suppress would have been granted. See, e.g., State v. Fair, 2nd Dist. No. 24120, 2011–

Ohio–3330, ¶ 27. See also Kimmelman at 390–391. Trial counsel's decision not to file a

motion to suppress may be a matter of trial strategy, including counsel's reasonable

assessment of whether such a motion is likely to succeed and recognition that filing a

motion to suppress has risks. Madrigal, 87 Ohio St.3d at 389, 721 N.E.2d 52.

{¶26} In the instant case, based on the evidence in the record, appellant cannot

show trial counsel's failure to file a motion to suppress any photo line-up constitutes a

deficiency. This case was resolved with a guilty plea and the record contains no facts in

support of appellant’s argument here. We are unable to find any reference in the record

to a photo line-up or any suggestion of irregularity, and appellant does not support his

argument with reference to the record. App.R. 16(A)(7).

{¶27} We also must presume a properly licensed attorney executes his or her

duties in an ethical and competent manner. See State v. Smith, 17 Ohio St.3d 98, 100,

477 N.E.2d 1128 (1985). Under the circumstances presented, we are not inclined to

overcome this presumption with the limited information in the appellate record before us.
Muskingum County, Case No. CT2016-
0010 9

See, State v. Sanders, 5th Dist. Ashland No. 15-COA-33, 2016-Ohio-7204, ---N.E.3d---,

¶ 34.

{¶28} Second, appellant argues he received ineffective assistance of defense trial

counsel because he was not “properly advised of the minimum and maximum potential

criminal sanctions which could be imposed as a result of his guilty plea.” This argument

apparently rests upon facts outside the record. Appellant argues he expressed “extreme

confusion” at sentencing and infers he was not properly advised of the potential

sentences for his convictions. Appellant does not direct us to any evidence of “extreme

confusion” in the record, and we note that the trial court advised appellant of the potential

minimum and maximum penalties at the change-of-plea hearing. Appellant summarily

concludes counsel was ineffective in failing to fully advise him of the consequences of his

plea, but the record does not support the argument.

{¶29} His inference of ineffective assistance premised upon counsel’s alleged

failure to properly advise him relies upon facts outside the record. See, State v. Coles,

5th Dist. Delaware No. 15CAA010001, 2015-Ohio-4159. A claim requiring proof that

exists outside of the trial record cannot appropriately be considered on a direct appeal.

State v. Hartman, 93 Ohio St.3d 274, 299, 754 N.E.2d 1150 (2001) (if establishing

ineffective assistance of counsel requires proof outside the record, then such claim is not

appropriately considered on direct appeal). We conclude appellant's argument is more

appropriate for review in post-conviction proceedings than on direct appeal because the

facts in support are outside the record before us. See, State v. Lambert, 5th Dist. Richland

No. 97–CA–34–2, 1999 WL 173966, *2 (Feb. 17, 1999); State v. Hamlett, 5th Dist.

Richland No. 03 CA 34, 2004–Ohio–38, ¶ 11; State v. Lawless, 5th Dist. Muskingum No.
Muskingum County, Case No. CT2016-
0010 10

CT2000–0037, 2002–Ohio–3686, 2002 WL 1585846, *7, citing State v. Cooperrider, 4

Ohio St.3d 226, 228, 448 N.E.2d 452 (1983). Post-conviction relief, rather than a direct

appeal, is a means by which a defendant may bring claims of constitutional violations

based upon matters outside the record. State v. Kreischer, 5th Dist. Perry No. 01–CA–

04, 2002–Ohio–357, 2002 WL 106683, *3, citing State v. Perry, 10 Ohio St.2d 175, 226

N.E.2d 104 (1967), paragraphs four and nine of the syllabus.

{¶30} Appellant has not demonstrated ineffective assistance of counsel. His

second and third assignments of error are overruled.

IV.

{¶31} In his fourth assignment of error, appellant argues the trial court improperly

advised him of the maximum potential penalties for his convictions and of the possibility

of consecutive sentences. We disagree.

{¶32} Again, appellant points to no evidence in the record in support of his

argument that the trial court’s advisements were in error or insufficient. Instead, he points

to his own statement at sentencing:

[APPELLANT:] * * * *. I pled guilty because I didn’t want to

go down for 120 years. That was my understanding, if I took it to

trial, I would get 120 years. * * * *.

(T. Sentencing, 8.)

{¶33} Appellant suggests the trial court did not comply with Crim.R. 11(C)(2) in

accepting his plea. That section details the trial court's duty in a felony plea hearing to

address the defendant personally, to convey certain information to such defendant, and

prohibits acceptance of a guilty plea or no contest without performing these duties. State
Muskingum County, Case No. CT2016-
0010 11

v. Holmes, 5th Dist. Fairfield No. 09 CA 70, 2010–Ohio–428, ¶ 10. Crim.R. 11(C)(2)(a)

states the trial court must determine “ * * * that the defendant is making the plea

voluntarily, with the understanding of the nature of the charges and of the maximum

penalty involved, and if applicable, that the defendant is not eligible for probation or for

the imposition of community control sanctions at the sentencing hearing.” The Rule

requires guilty pleas to be made knowingly, intelligently and voluntarily. Although literal

compliance with Crim. R. 11 is preferred, the trial court need only “substantially comply”

with the rule when dealing with the non-constitutional elements of Crim.R. 11(C). State

v. Dunham, 5th Dist. No. 2011–CA–121, 2012–Ohio–2957, ¶ 11 citing State v. Ballard,

66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing State v. Stewart, 51 Ohio St.2d 86,

364 N.E.2d 1163 (1977). In State v. Griggs, 103 Ohio St.3d 85, 2004–Ohio–4415, 814

N.E.2d 51, at ¶ 12, the Ohio Supreme Court noted the following test for determining

substantial compliance with Crim.R. 11:

Though failure to adequately inform a defendant of his

constitutional rights would invalidate a guilty plea under a

presumption that it was entered involuntarily and unknowingly, failure

to comply with non constitutional rights will not invalidate a plea

unless the defendant thereby suffered prejudice. State v. Nero, [56

Ohio St.3d 106, 108, 564 N.E.2d 474 (1990)]. The test for prejudice

is ‘whether the plea would have otherwise been made.’ Id.

{¶34} Under the substantial-compliance standard, we review the totality of

circumstances surrounding appellant’s plea and determine whether he subjectively

understood the effect of his plea. See, State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–
Muskingum County, Case No. CT2016-
0010 12

509, 881 N.E.2d 1224 at ¶ 19–20; State v. Alexander, 5th Dist. Stark No. 2012CA00115,

2012–Ohio–4843, appeal not allowed, 134 Ohio St.3d 1485, 2013–Ohio–902, 984 N.E.2d

29.

{¶35} In the instant case, our review of the plea hearing reveals the trial court

advised appellant of his constitutional rights, the potential penalties for each offense, and

the possibility of postrelease control. Further, the trial court inquired as to the

voluntariness of appellant's plea of guilty. In short, the trial court complied with Crim.R.

11. Appellant does not suggest what more the trial court should have done to explain the

potential penalties. Instead, the record demonstrates the trial court had a meaningful

dialogue with appellant, fully apprising him of the rights he was waiving. See, State v.

Tillman, 6th Dist. Huron No. H–02–004, 2004–Ohio–1967, ¶ 20. The court engaged

appellant in a personal inquiry as to whether he understood the plea agreement and its

consequences. Appellant was represented throughout the hearing. Nothing in the record

indicates that appellant was under the influence of any drug or other substance which

would prohibit his understanding of the court's questions. The record indicates that he

understood the terms of the agreement and entered an intelligent, knowing and voluntary

plea.

{¶36} Moreover, there is no evidence in the record showing that if the court had

advised appellant any differently appellant would not have pled guilty and instead would

have insisted on going to trial. Thus we find no evidence appellant was prejudiced and he

does not point to any such evidence. See, Sergent, supra, 2015–Ohio–2603 at ¶ 53.
Muskingum County, Case No. CT2016-
0010 13

{¶37} Appellant's fourth assignment of error is found to be without merit. See,

State v. Broyles, 5th Dist. Ashland No. 14–COA–037, 2015–Ohio–4778, ¶¶ 10–13; State

v. Reed, 5th Dist. Ashland No. 14–COA–010, 2015–Ohio–3534, ¶ 12.

{¶38} Appellant’s fourth assignment of error is overruled.

V.

{¶39} In his fifth assignment of error, appellant argues the trial court improperly

advised him of his right to compulsory process. We disagree.

{¶40} Appellant points to the following statement by the trial court: “You are giving

up your right to use the power of this Court to subpoena or compel witnesses to come in

to court and testify on your behalf?” (T. Plea, 16.) Appellant equates this statement with

the trial court’s insufficient colloquy in In State v. Cummings, 8th Dist. Cuyahoga No.

83759, 2004-Ohio-4470, ¶ 5. In Cummings, the trial court informed a defendant he had

“the right to call witnesses to appear on [his] behalf” and he also had “the right to confront

and ask questions of witnesses.” The appellate court found this explanation insufficient

to advise the defendant of the right to compulsory process because “this implied that the

defendant could present only witnesses he was able to secure through his own efforts.”

State v. Parks, 8th Dist. Cuyahoga No. 86312, 2006-Ohio-1352, ¶ 16.

{¶41} In the instant case, in the context of the entire colloquy which appellant

omits, we find no such implication. Instead, the trial court adequately advised appellant

of his right to compulsory process by explaining the meaning in reasonably intelligible

terms, despite the absence of the term “compulsory process.” A trial court must strictly

comply with those provisions of Crim. R. 11(C) which relate to the accused's waiver of

constitutional rights, including the right to a trial by jury, the right to confront one's
Muskingum County, Case No. CT2016-
0010 14

accusers, the privilege against self-incrimination, and the right to compulsory process of

witnesses. However, strict compliance does not require a rote recitation of the exact

language of Crim. R. 11(C). “Rather, the focus, upon review, is whether the record shows

that the trial court explained or referred to the right in a manner reasonably intelligible to

that defendant.” State v. Tripplet, 5th Dist. Stark No. 2001CA00061, unreported, 2001

WL 1251636, *2.

{¶42} Appellant’s fifth assignment of error is overruled.

VI.

{¶43} In his sixth assignment of error, appellant argues the trial court did not

comply with R.C. 2929.19(B)(2) and failed to properly include the details of post-release

control in the sentencing entry, therefore his sentences should be voided.3 We agree.

{¶44} On the record at the sentencing hearing, the trial court notified appellant of

the terms of post-release control and the consequences of violation. (T. Sentencing, 17-

18). In the sentencing entry, the trial court wrote in pertinent part:

* * * *.

The Court further notified the Defendant that “Post Release

Control” is mandatory in this case for five (5) 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 is ordered to serve as part of this sentence any term for

violation of that post release control.

3As appellee points out, appellant referenced R.C. 2929.19(B)(3) in his argument but
substantively refers to R.C. 2929.19(B)(2).
Muskingum County, Case No. CT2016-
0010 15

* * * *.

Entry, January 13, 2016.

{¶45} Appellant contends the trial court failed to properly notify him of the

consequences of violating post-release control.

{¶46} In State v. Richard–Bey, 5th Dist. Muskingum Nos. CT2014–0012,

CT2014–0013, 2014–Ohio–2923, this Court considered similar post-release control

language as that used in the present sentencing entry. The trial court in Richard-Bey

sentenced appellant to eight years in prison on July 16, 2004. The trial court notified the

appellant of mandatory post-release control for up to five years. Id. at ¶ 1. The appellant

was resentenced on August 30, 2010 to address the sole issue of post-release control

pursuant to State v. Bloomer, 122 Ohio St.3d 200, 2009–Ohio–2462, 909 N.E.2d 1254.

The trial court sentenced the appellant to an aggregate term of eight years in prison and

notified him of mandatory post-release control for five years. The sentencing entry was

silent, however, as to the consequences of violating post-release control. Id. at ¶ 17, 909

N.E.2d 1254. The trial court did not inform the appellant “that if he violated his supervision

or a condition of post-release control, the parole board could impose a maximum prison

term of up to one-half of the prison term originally imposed” pursuant to R.C.

2929.19(B)(3)(e) [now R.C. 2929.19(B)(2)(e)]. Id.

{¶47} The appellant appealed the 2010 sentencing entry and we affirmed the

entry in State v. Richard–Bey, 5th Dist. Muskingum No. CT2010–Ohio–0051, 2011–Ohio–

3676.

{¶48} On April 29, 2013, the appellant pleaded guilty to one count of having a

weapon while under disability in violation of R.C. 2923.13. Id. at ¶ 3. By sentencing entry
Muskingum County, Case No. CT2016-
0010 16

filed May 21, 2013, the trial court sentenced the appellant to 30 months. The trial court

also terminated the appellant's post-release control in the 2004 case and ordered the

remaining time be imposed and served consecutively to the 30–month sentence. Id.

{¶49} The appellant filed a petition for post-conviction relief in both the 2004 and

2013 cases, seeking relief from sentencing. Id. at ¶ 4. The appellant also filed a motion

for vacation of void post-release control violation in the 2013 case, claiming the balance

of his post-release control imposed in that case was an error because it was a nullity in

the 2004 case. The trial court denied the petition and motion and the appellant filed a pro

se appeal. Id.

{¶50} On appeal, the appellant argued the trial court lacked jurisdiction to impose

the remainder of his void post release control sanction. We agreed. We stated:

The 2004 sentencing entry in Case No.CR2004–119A was

corrected on August 30, 2010 to address the sole issue of post-release

control pursuant to State v. Bloomer, 122 Ohio St.3d 200, 909 N.E.2d 1254,

2009–Ohio–2462. The entry was filed on September 7, 2010. The entry

notified appellant that post-release control was mandatory for five years.

However, the entry was silent as to the consequences of violating post-

release control. Appellant was not “informed that if he violated his

supervision or a condition of post-release control, the parole board could

impose a maximum prison term of up to one-half of the prison term originally

imposed” pursuant to R.C. 2929.19(B)(3)(e) [now R.C. 2929.19(B)(2)(e) ].

State v. Ketterer, 126 Ohio St.3d 448, 935 N.E.2d 9, 2010–Ohio–3831, ¶

77 (reviewing a nunc pro tunc entry) (decided five days before appellant's
Muskingum County, Case No. CT2016-
0010 17

resentencing). “A sentence that does not include the statutorily mandated

term of post-release 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.” State v. Fischer, 128 Ohio St.3d 92, 942

N.E.2d 332, 2010–Ohio–6238, paragraph one of the syllabus. See also,

State v. Billiter, 134 Ohio St.3d 103, 980 N.E.2d 960, 2012–Ohio–5144.

State v. Richard–Bey, 2014–Ohio–2923, ¶ 17.

{¶51} The appellant had finished serving his sentence in the 2004 case. “Because

the trial court did not properly impose post-release control in its September 7, 2010 entry,

the trial court cannot terminate appellant's post-release control in Case No. CR2004–

119A and order the remaining time be imposed and served consecutively to the thirty

month sentence in Case No. CR2013–0037.” State v. Richard–Bey, 2014–Ohio–2923, ¶

18. We found the trial court erred in denying the appellant's motion for vacation of void

post-release control violation. Id. at ¶ 19.

{¶52} We find Richard–Bey to be directly on point to the facts of the present case.

In the present case, the trial court did not inform appellant in the January 13, 2016

sentencing entry that if he violated his supervision or a condition of post-release control,

the parole board could impose a maximum prison term of up to one-half of the prison term

originally imposed pursuant to R.C. 2929.19. The sentencing entry thus does not include

a statutorily-mandated term of post-release control and is void. Accord State v. Kepler,

5th Dist. Muskingum No. CT2015-0021, 2015-Ohio-3291; State v. Grimes, 5th Dist.

Muskingum No. CT2015-0026, 2015-Ohio-3497; State v. Murphy, 5th Dist. Muskingum

No. CT2015-0023, 2015-Ohio-3598; State v. Moore, 5th Dist. Muskingum No. CT2015-
Muskingum County, Case No. CT2016-
0010 18

0028, 2015-Ohio-5514. Contra State v. Jaryd Moore, 5th Dist. Muskingum No. CT2015-

0027, 2015-Ohio-3435.

{¶53} Based on our decision in Richard–Bey, we find the trial court’s language in

the sentencing entry does not adequately comply with R.C. 2929.19 (B)(2). Appellant’s

sixth assignment of error is sustained and this matter is remanded for resentencing.

CONCLUSION

{¶54} Appellant’s assignments of error numbers one through five are overruled.

Appellant’s sixth assignment of error is sustained. The judgment of the Muskingum

County Court of Common Pleas is affirmed in part and reversed in part and this matter is

remanded for further proceedings in accord with this opinion.

By: Delaney, J. and

Hoffman, J., concur.

Farmer, P.J., dissents.
Muskingum County, Case No. CT2016-
0010 19

Farmer, P.J., dissenting.

{¶1} I respectfully dissent from the majority’s view on the authority of this court’s

opinion in State v. Jayrd Moore, 5th Dist. Muskingum No. CT2015-0027, 2015-Ohio-3435.

HON. SHEILA G. FARMER