STATE OF OHIO, Plaintiff-Appellee, vs. STEPHAN L. BURNS, Defendant-Appellant.
Case No. 11CA19
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
Released: March 30, 2012
[Cite as State v. Burns, 2012-Ohio-1626.]
McFarland, J.
APPEARANCES:
Conrad A. Curren, Greenfield, Ohio, for Appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for Appellee.
McFarland, J.:
{1} This is an appeal from a Highland County Court of Common Pleas decision and entry denying Appellant‘s motion to vacate the post sentence control portion of his sentence, which was imposed by the Highland County Court of Common Pleas as a result of a violation of post sentence control originally imposed in Brown County. On appeal, Appellant contends that 1) the trial court erred to his detriment when it found the nunc pro tunc issued by the Brown County court valid; and 2) the trial court erred
{2} In light of our conclusion that the Brown County Court failed to properly impose post release control when it originally sentenced Appellant in 2004, as well as our conclusion that the post release control portion of that sentence was void as a result, the Highland County court‘s denial of Appellant‘s motion to vacate is reversed, and that part of the judgment of the Highland County trial court imposing a 34 month sentence for the post release control violation is vacated. Thus, Appellant‘s first and second assignments of error are sustained. Accordingly, this cause is remanded to the trial court with instructions to notify the appropriate authorities of the modified sentence. Further, Appellant is ordered to be discharged immediately.
FACTS
{3} On February 11, 2004, in Brown County Court of Common Pleas Case No. 2003-2167, Appellant pled guilty and was convicted of five counts of sexual battery, in violation of
{4} While serving the term of post release control imposed in connection with the Brown County conviction, on June 19, 2009, Appellant pled guilty to grand theft, a fourth degree felony, in the Highland County Court of Common Pleas. On August 5, 2009, the Highland County court sentenced Appellant to seventeen months on the grand theft conviction, as well the balance of the five years of post release control on the post release control violation, which was 1019 days, or approximately 34 months. There is no indication that Appellant directly appealed from these convictions or sentences.
{5} However, on August 30, 2010, Appellant filed a motion for resentencing and to vacate a void judgment of conviction in the Highland County Court of Common Pleas. In his motion, Appellant asserted that his 34 month sentence stemming from the post release control violation should
{6} As such, Appellant subsequently filed, in the Brown County Court of Common Pleas, a motion for determination that the 2004 sentencing entry was void. In response, the Brown County court held a hearing on January 5, 2011, nearly four years after Appellant had been released from prison on the Brown County conviction, where it acknowledged that the 2004 sentencing entry “did not properly state the necessary language required by the statute for imposition of Post Release Control.” The court went on to state, however, that “the proper action, as
{7} On January 21, 2011, Appellant filed another motion in the Highland County court, entitled motion to vacate a void judgment. In the motion, Appellant explained that since the original denial of this motion by the Highland County Court, Appellant had sought redress in Brown County. In the motion, Appellant explained that the Brown County court vacated the original 2004 imposition of post release control and re-sentenced him, but that the re-sentencing was in error as his underlying prison term had already expired. The State opposed the motion. The Highland County court appointed counsel for Appellant and held two hearings on the motion. In its June 8, 2011, decision and entry denying Appellant‘s motion to vacate the post release control portion of the sentence, the trial court essentially determined that Appellant had waived the error related to the imposition of post release control by failing to file a direct appeal from the 2004 decision, and that because the 2004 sentencing entry mentioned post release control, Appellant was sufficiently put on notice and should have filed a direct
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED TO THE DETRIMENT OF THE DEFENDANT WHEN IT FOUND THE NUNC PRO TUNC ISSUED BY THE BROWN COUNTY COURT VALID.
II. THE TRIAL COURT ERRED TO THE DETRIMENT OF THE DEFENDANT BY REFUSING TO VACATE THE PART OF THE APPELLANT‘S SENTENCE THAT IS BASED ON A VOID POST-RELEASE CONTROL SENTENCE.”
LEGAL ANALYSIS
{8} As Appellant‘s assignments of error are interrelated, we address them in conjunction with one another. On appeal, Appellant contends that the Highland County Court of Common Pleas erred to his detriment by finding the nunc pro tunc entry issued by the Brown County Court of Common Pleas to be valid, and also by refusing to vacate the part of the Highland County sentence that is based upon a void post release control sentence. Specifically, Appellant contends that the Brown County court did not properly sentence him on post release control, which resulted in that part of the sentence being void. Appellant also contends that the sentencing error
{9} A situation very similar to the one sub judice was recently addressed by the Second District Court of Appeals in State v. Portis, Clark App. No. 2010-CA-95, 2011-Ohio-2429. Much like the facts herein, in Portis, the trial court failed to properly impose post release control in 2004, by stating in the sentencing entry that post release control was mandatory “up to a maximum of three years” rather than “three years.” Id. at ¶ 5. After completing his two year sentence, Portis committed a new felony in 2007 and was sentenced on the new felony, as well on the post release control violation. Id. at ¶ 6. Portis filed a direct appeal from this conviction and sentence, but did not raise any issues regarding the original imposition of post release control. However, Portis later filed a motion to vacate the sentence based upon the post release control violation. Id. In support of his motion, Portis argued that because the trial court had not properly imposed
{10} In reaching its decision, the Portis court reasoned as follows:
“Portis‘s argument is simple. He argues that the trial court, in the 2004 Robbery case, was required to impose post-release control for a period of three years, not ‘up to’ three years. He relies upon State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, for the proposition that an improperly imposed sentence of post-release control is not merely voidable, but void.
State v. Bezak, supra, was modified in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, but only to the extent that it is just the post-release-control part of the sentence - not the rest of the sentence, and not the underlying conviction - that is void because it is defective. In State v. Fischer, supra, the Supreme Court of Ohio stated its holding in its opening paragraph:
‘* * * A sentence that does not include the statutorily mandated term of postrelease 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. Although the doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence.’ Id. at ¶ 1.
This holding is clear enough, and forces us to reject the State‘s argument that Portis is barred from challenging the propriety of the post-release control imposed in the 2004 case by virtue of res judicata, because he could have, but did not, raise that issue in his direct appeal from the sentence imposed in his 2007 case, which included a one-year sentence for the post-release control violation.” Id. at ¶¶ 11-14.
{12} Further, although the State and the Highland County court were both concerned about the jurisdictional issues related to addressing the Brown County court‘s actions, we conclude Fischer provides us with
{13} Accordingly, Appellant‘s arguments are sustained and the trial court‘s judgment denying Appellant‘s motion to vacate is reversed. As such, that part of the Highland County judgment imposing sentence on the post release control violation is vacated and this cause is remanded to the trial court with instructions to notify the appropriate authorities of the modified
JUDGMENT VACATED AND CAUSE REMANDED.
It is ordered that the JUDGMENT BE VACATED AND CAUSE REMANDED and that the Appellant recover of Appellee costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland 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.
Exceptions.
Harsha, J. and Kline, J.: Concur in Judgment and Opinion.
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.