State v. MoatsState v. Moats
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Thomas A. Thompson, Williams County Prosecuting Attorney, for appellee.
Karin L. Coble, for appellant.
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PIETRYKOWSKI, J.
{¶1} Defendant-appellant, Robert Moats, appeals the June 7, 2011 judgment of the Williams County Cоurt of Common Pleas which denied his motion to vacate void judgments. Because we find that appellant was improperly sentеnced to postrelease control, his subsequent postrelease control violation conviction was void and we reverse.
{¶3} On April 18, 2007, appellant was charged with failure to notify of a change of address, in violation of
{¶4} On January 6, 2011, appellant filed a pro se motion to vacate void judgments. Appellant argued that postrelease control was improperly imposed following his 2004 rape conviction. Appellant supported his argument with the Supreme Court of Ohio cases of State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961 and State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568. Appellant asserted that because postrelease control was improperly impоsed, the 2004 judgment was void and that, as a result, appellant could not have been convicted of failure to register and a рostrelease control violation.
{¶6} On June 7, 2011, the trial court denied appellant‘s motions. The court notеd that even if there was an error in the imposition of postrelease control, it was “de minimis” and “cured” by the Supreme Court of Ohio‘s holding in Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78 and this court‘s holding in State v. Carles, 6th Dist. No. WD-05-0105, 2006-Ohio-3047, cases predating Bezak and its progeny. The court further found that an attack of the 2004 judgment was barred by the doctrine of res judicata. Appellant then filed a pro se notice of appeal and was subsequently appointed appellate counsel.
{¶7} Appеllant now raises the following assignment of error for our review:
Assignment of Error: The trial court erred when it held that postrelease control was properly imposed in case No. 03CR225 and erred in imposing a judicial sanction in case No. 07CR51.
{¶8} In appellant‘s sоle assignment or error he asserts that because he was improperly sentenced to postrelease control in 2004, his 2007 sеntence for a postrelease control violation was void and, thus, attack is not barred by res judicata. Conversely, while thе state acknowledges that the postrelease control portion of the 2004 sentence is
{¶9} The Suрreme Court of Ohio recently answered the question posed in this appeal. In State v. Billiter, Slip Opinion No. 2012-Ohio-5144, Billiter was improperly sentenced to pоstrelease control in 1998. In 2001, Billiter was released from prison. In 2004, while on postrelease control, he was indicted and enterеd a guilty plea to escape. Billiter was sentenced to six years of imprisonment. No direct appeal was filed. Id. at ¶ 4.
{¶10} In 2008, Billiter filed a motion arguing that the postrelease portion of his sentence was contrary to law. Id. at ¶ 5. The motion was denied and its deniаl affirmed by the Fifth Appellate District pursuant to Watkins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78. Id. Thereafter, in 2010, appellant filed a motion to withdraw his guilty plea to escaрe arguing that he had never been legally placed on postrelease control. The motion was denied and affirmed оn appeal. Id. at ¶ 6. The case was then certified as being in conflict with the Second Appellate District. Id.
{¶11} Reversing the Fifth Appеllate District, the court noted that “‘[a] sentence that does not include the statutorily mandated term of postrelease сontrol is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any timе, on direct appeal or by collateral attack.‘” Id. at ¶ 7, quoting Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus. The court then held “that if a triаl court sentences a defendant to an improper term of postrelease control and the defendant subsequently рleads guilty to violating postrelease control, the defendant is not barred by the principles of res judicata from challenging his conviction.” Id. at ¶ 11.
{¶12} In the present case, the parties agree that postrelease control was improperly imposed. Thus, because the postrelease control portion of the 2004 sentence was void, the 2007 postrelease cоntrol violation conviction was based upon an invalid sentence. Appellant‘s assignment of error is well-taken.
{¶13} On considerаtion whereof, we find that appellant was prejudiced from having a fair proceeding and the June 7, 2011 judgment of the Williams County Court of Common Pleas is reversed and, pursuant to
Judgment Reversed.
Peter M. Handwork, J. ____________________________
JUDGE
Mark L. Pietrykowski, J. ____________________________
Arlene Singer, P.J. JUDGE
CONCUR. ____________________________
JUDGE
This decision is subject to furthеr editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.