STATE OF OHIO v. JOHN MURPHY
Case No. CT2015-0023
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
September 1, 2015
2015-Ohio-3598
Hon. John W. Wise, P.J.; Hon. Patricia A. Delaney, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2013-0261; JUDGMENT: REVERSED
For Plaintiff-Appellee:
D. MICHAEL HADDOX MUSKINGUM COUNTY PROSECUTOR
GERALD V. ANDERSON II 27 North Fifth St., P.O. Box 189 Zanesville, OH 43702-0189
For Defendant-Appellant:
STEPHEN P. HARWICK 250 East Broad St., Suite 140 Columbus, OH 43215
Delaney, J.
{¶1} Defendant-Appellant John Murphy appeals the April 14, 2015 judgment entry of the Muskingum County Court of Common Pleas denying his motion to vacate post-release control. Plaintiff-Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} On February 22, 2010, Defendant-Appellant John Murphy pleaded guilty to two counts of gross sexual imposition, fourth-degree felonies in violation of
The Court further notified 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 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.
{¶3} Murphy completed his prison sentence and was released on July 11, 2012. He was placed on five years of post-release control.
{¶4} On November 27, 2013, Murphy entered a plea of guilty to one count of failure to register (address change), a fourth-degree felony in violation of
{¶5} Murphy completed his eight-month prison term in September 2014.
{¶6} On April 6, 2015, Murphy filed a motion to vacate post-release control. Murphy argued the post-release control imposed in the February 22, 2010 sentencing entry was void because the trial court failed to set forth the penalties for violating post-release control. The trial court denied the motion on April 14, 2015.
{¶7} It is from this judgment entry Murphy now appeals.
ASSIGNMENT OF ERROR
{¶8} Murphy raises one Assignment of Error:
{¶9} “THE TRIAL COURT ERRED BY DENYING MR. MURPHY‘S MOTION TO VACATE POSTRELEASE CONTROL. JOURNAL ENTRY (APRIL 14, 2015);
ANALYSIS
{¶10} Murphy argues in his sole Assignment of Error that based on our decision in State v. Richard-Bey, 5th Dist. Muskingum Nos. CT2014-0012, CT2014-0013, 2014-Ohio-2923, the trial court erred in denying his motion to vacate post-release control. We agree.
{¶11} In State v. Richard-Bey, the trial court sentenced appellant to eight years in prison on July 16, 2004. The trial court notified the appellant of mandatory post-
{¶12} 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.
{¶13} On April 29, 2013, the appellant pleaded guilty to one count of having a weapon while under disability in violation of
{¶14} 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.
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, 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 postrelease 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) [nowR.C. 2929.19(B)(2)(e) ]. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 77 (reviewing a nunc pro tunc entry) (decided five days before appellant‘s resentencing). “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.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph one of the syllabus. See also, State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144. State v. Richard-Bey, 2014-Ohio-2923, ¶ 17.
{¶16} 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.
{¶17} 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 Murphy in the February 22, 2010 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
{¶18} Based on this Court‘s decision in Richard-Bey, we find the trial court erred in denying Murphy‘s motion to vacate post-release control. Murphy‘s sole Assignment of Error is sustained.
{¶19} The only portion of the January 16, 2014 sentencing entry dealing with the imposition of the remaining time of post-release control from Case No. CR2010-0019 is reversed. The rest of the sentence in Case No. CR2013-0261 is left intact.
{¶20} The judgment of the Muskingum County Court of Common Pleas is reversed.
By: Delaney, J.,
Wise, P.J. and
Baldwin, J., concur.