{¶ 2} On August 17, 2001, appellant was indicted on one count of illegal manufacture of drugs, in violation of R.C.
{¶ 3} Appellant entered a plea of not guilty to all charges. However, on November 6, 2001, a plea hearing took place at which appellant withdrew his not guilty plea and pleaded guilty to the aggravated possession of methamphetamine charge. The trial court engaged appellant in a thorough Crim. R. 11 colloquy, and further advised him that, upon his release, he could be placed on post-release control. The trial court further explained the potential effects of violating these sanctions pursuant to R.C.
{¶ 4} On January 22, 2002, the trial court held a sentencing hearing at which the court ordered appellant to serve a term of six years imprisonment at the Ohio Department of Rehabilitation; appellant was additionally fined $7,500.00. At no point during the sentencing hearing did the trial court advise appellant that he would be subject to post-release control sanctions upon his release from prison. On January 25, *3
2002, the trial court journalized its sentence which was modified via a nunc pro tunc entry on January 28, 2002. Each judgment entry incorrectly reflected appellant was advised at the sentencing hearing that, upon his release from prison, he "may be supervised under post-release control" pursuant to R.C.
{¶ 5} Approximately one year after his sentence, appellant filed a motion to pursue a delayed appeal, pursuant to App. R. 5(A), which this court granted. On appeal, appellant challenged the validity of the trial court's acceptance of his guilty plea. In State v. Biondo, 11th Dist. No. 2003-P-0015,
{¶ 6} On November 29, 2004, appellant moved the trial court to vacate the court imposed fines and court costs. The trial court overruled the motion without a hearing. On appeal, this court affirmed the trial court's imposition of the mandatory fines and court costs. State v.Biondo (Dec. 19, 2005), 11th Dist. No. 2004-P-112. (Biondo II).
{¶ 7} On December 7, 2007, appellant completed his prison term, was released, and placed on three years of post-release control under the supervision of the Adult Parole Authority. On February 1, 2008, appellant moved the trial court to terminate the post-release control portion of his sentence arguing its imposition violated notice requirements set forth in both statutory and case law. Following a hearing on the motion, the trial court denied appellant's motion ruling it "had no jurisdiction to terminate post release control." *4
{¶ 8} Appellant now appeals pro se and asserts two assignments of error. For ease of discussion, we shall address both assigned errors together.
{¶ 9} "[1.] [The] trial court erred by ruling that it did not have jurisdiction to terminate defendant's post release control when it had full knowledge that post release control was not part of the sentence ordered by the trial court nor had even mentioned the possibility to the defendant at his sentencing hearing.
{¶ 10} "[2.] [The] trial court erred by not notifying defendant at [the] sentencing hearing that he will be supervised under post release control upon his release from prison by the Ohio Adult Parole Authority and that if he violated the terms of post release control he could receive up to one half [sic] of his original prison sentence."
{¶ 11} Appellant asserts, generally, that the trial court's imposition of post-release control sanctions was void to the extent it failed to advise him of such sanctions at the sentencing hearing. Although the trial court retained jurisdiction to correct this error while he was still incarcerated, it failed to do so. Thus, appellant maintains the trial court had jurisdiction over and was obligated to terminate the post-release control sanctions imposed by the Adult Parole Authority after his December 7, 2007 release from prison.
{¶ 12} R.C.
{¶ 13} "(3) * * * if the sentencing court determines at the sentencinghearing, that a prison term is necessary or required, the courtshall do all of the following:
{¶ 14} "* * * *5
{¶ 15} "(c) Notify the offender that the offender will be supervised under section
{¶ 16} Notwithstanding this statutory mandate, the state argues that the Supreme Court's holding in Woods v. Telb,
{¶ 17} "we hold that pursuant to R.C.
{¶ 18} In Woods, the Supreme Court was addressing the case of a defendant who had pleaded guilty and was advised at that time of post-release control. However, the issue in Woods was the constitutionality of post-release control. That case did not address the mandates of R.C.
{¶ 19} In Jordan, similar to the case sub judice, the trial court failed to notify the defendant of post-release control requirements at the time of sentencing, but incorporated that notice into its sentencing entry. The court concluded this procedure was invalid, holding:
{¶ 20} "When sentencing a felony offender to a term of imprisonment, a trial court is required to notify the offender at the sentencing hearing about postrelease control and is further required to incorporate that notice into its journal entry imposing sentence." Id at paragraph one of the syllabus.
{¶ 21} Pursuant to R.C.
{¶ 22} Jordan was decided after Woods. Moreover, Woods addressed only the constitutionality of post-release control while Jordan directly ruled upon the necessary steps for compliance for notification regarding post-release control during the sentencing process. Although theWoods court did comment on the procedural issue of notification, it did so without touching upon the mandates of R.C.
The Supreme Court in Woods was not asked to resolve the procedural questions with which it was confronted in Jordan. Thus, it is reasonable to conclude any discussion or perceived holding relating to the procedural nuances of the notification process for post-release control in Woods was superseded by the precise holding in Jordan. See State v.Harris,
{¶ 23} As we hold Jordan is the controlling authority regarding notification during the sentencing process, it is necessary, given the issue before this court, to touch upon several recent cases in which the Supreme Court has clarified certain nuances surrounding Jordan.
{¶ 24} First, in Hernandez v. Kelly,
journal entry, the Adult Parole Authority lacks authority to impose post-release control. Id. at 397. Because the defendant had served his seven year term of incarceration, the Court determined he was entitled to be released from prison and from further post-release control. Id. at 401.3
{¶ 25} Next, in State ex rel. Cruzado v. Zaleski,
{¶ 26} Most recently, in State v. Simpkins,
{¶ 27} The Supreme Court determined, even though the defendant had completed a "substantial majority" of his sentence, the state was not barred by res judicata from resentencing him. The court observed that because the sentence did not conform to statutory mandates requiring the imposition of post-release control, it was void and must be vacated. Id. at 425. The effect of vacating the sentence placed the parties "in the same position as they were had there been no sentence." Id. Without a valid former adjudication (or, where no statutory authority exists to support a sentence), res judicata did not act to bar the trial court from resentencing the defendant to the extent he was still incarcerated for that conviction. Id. 426-427.
{¶ 28} The following conclusions can be drawn from the authority discussed above. First, a court must advise a defendant that post-release control sanctions will be a part of his or her sentence at the sentencing hearing and journalize a similar notification in its judgment entry on sentence. Jordan, supra. The failure to do so renders a defendant's sentence void. Cruzado, supra; Simpkins, supra. To the extent a defendant is still incarcerated, the state may move the trial court to resentence the defendant because the trial court retains continuing jurisdiction over a criminal matter for purposes of correcting a void judgment. Jordan, supra; Hernandez, supra;Cruzado, supra; Simpkins, supra. However, where 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 *10 resentencing. Hernandez, supra; Cruzado, supra. Under such circumstances, the defendant who has served his prison term is entitled to release from post-release control. Id.
{¶ 29} Here, the trial court did not comply with R.C.
{¶ 30} One final point deserves brief attention. Appellant failed to raise this issue before this court on direct appeal even though it was apparent at the time appellant prosecuted his appeal. Generally, "`errors in sentencing that are reflected in the record are waived, and res judicata applies, when a defendant fails to raise them in a direct appeal.'" State v. Vasquez, 11th Dist. No. 2006-A-0073,
{¶ 31} Finally, with respect to jurisdiction, the Supreme Court of Ohio has repeatedly held that a trial court's jurisdiction over a criminal case is limited after it renders judgment, but it retains continuing jurisdiction to correct a void sentence and is authorized to do so. Simpkins, supra, at 425; Cruzado, supra, at 356; Jordan, supra, at 27. In fact, the Court in Simpkins underscored, a trial court "has an obligation to do so when its error is apparent." Id. Accordingly, as the trial court's judgment on sentence was void, its conclusion that it did not have jurisdiction to terminate appellant's post-release control sanctions is incorrect. The Adult Parole Authority imposed the three year term of post-release control under the color of the authority of the trial court's January 28, 2002 judgment entry on sentence. As this sentence was void, the trial court retained limited continuing jurisdiction to correct any errors. Under the circumstances, the only way of correcting the error was through the termination of appellant's void post-release control.
{¶ 32} Appellant's first and second assignments of error have merit. *12
{¶ 33} For the reasons discussed in this opinion, the judgment of the Portage County Court of Common Pleas is reversed. The three years of post-release control imposed by the Adult Parole Authority pursuant to appellant's 2002 Portage County conviction following his guilty plea for aggravated possession of methamphetamine is invalid and hereby terminated.
DIANE V. GRENDELL, P.J., COLLEEN MARY O'TOOLE, J., concur.