STATE OF OHIO v. WILLIAM L. POINTER
C.A. CASE NO. 24446
T.C. CASE NO. 97CR449
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
September 30, 2011
2011-Ohio-5072
Criminal Appeal from Common Pleas Court
Attorney for Plaintiff-Appellee
William L. Pointer, #626-192, P.O. Box 7010, Chillicothe, OH 45601
Defendant-Appellee, Pro Se
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O P I N I O N
Rendered on the 30th day of September, 2011.
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GRADY, P.J.:
{¶ 1} Defendant, William L. Pointer, appeals from a judgmеnt of the Montgomery County Common Pleas Court that overruled Defendant‘s motion to vacate his judgment of conviction.
{¶ 2} In 1997, Defendant pled guilty to one count of felonious
{¶ 3} “Following the dеfendant‘s release from prison, the defendant will/may serve a period of post-release control under the supervision of the рarole board.”
{¶ 4} Defendant did not appeal his conviction and sentence. Defendant completed serving his sentence and was released from prison on post release control on March 4, 2007. Defendant‘s post release control supervision was terminated by the Adult Parole Authority on February 25, 2010.
{¶ 5} On August 30, 2010, Defendant filed a “motion to vacate void sentence and judgment of conviction.” Defendant argued that the trial court failed to properly impose the mandatory three and five year terms of post release control which apply to his convictions, a defect that renders both his convictions and sentences void. The State filed a memorandum contra Defendant‘s motion.
{¶ 6} On January 11, 2011, the trial court filed its Decision and Entry overruling Defendant‘s motion. The trial court held:
{¶ 7} “On August 30, 2010 Defendant filed a Motion to Vacate Void Sentence and Judgment of Conviction. The motion has been reviewed.
{¶ 8} “On August 07, 1997, Termination Entry was filed in this matter. Defendant was convicted of felоnious assault and involuntary manslaughter. The Defendant was sentenced to a term of seven (7) years on the felonious assault conviction and a term of nine (9) years on the involuntary manslaughter conviction. The terms were to be served concurrent with each other but consecutive to Defendant‘s sentence in another case. Defendant did not appeal the conviction. Defendant served his sentence and was released. He was placed on supervision by the adult parole authority after service of his sentence. His supervision wаs terminated on February 25, 2010.
{¶ 9} “Defendant asserts the conviction in this case is void because the post-release control was purportedly not properly imposed. The custom at that time was to place in the termination entry alternative language of ‘will or may.’ That practice has since been determined to be improper.
{¶ 10} “The court concludes that Defendant‘s motion is moot. Defendant did not appeal his convictions. He served his sentence and was released. He was placed under supervision upon release, but suрervision was terminated in February of 2010. Defendant
{¶ 11} “So, Defendant‘s underlying convictions for felonious assault and involuntary manslaughter remain and are res judicata as far as any attack on those convictions. Defеndant did not appeal his sentence. He did not seek any type of post-conviction relief.
{¶ 12} “The Defendant did not specifically сhallenge his post-release control until after it was terminated. Even assuming the post-release control is not properly imposеd in 1997 he is bound by it. Defendant did not object to it. It appears from Fischer that he would not have been barred by res judicata from attacking the post-release control component of his sentence, even if he had so moved in the course of his incarceration or while he was under supervision, but he never challenged the supervision component of the termination entry. It is not reasonable to think that the Defendаnt can have that reviewed after the sentence has been served and the supervision terminated.
{¶ 13} “Accordingly, Defendant‘s Motion to Vacate his 1997 conviction is OVERRULED.”
{¶ 14} Defendant timely appealed to this court from the trial court‘s decision overruling his motion to vacate his 1997 conviction and sentence.
FIRST ASSIGNMENT OF ERROR
{¶ 15} “THE TRIAL COURT DID NOT COMPLY WITH STATUTORY REQUIREMENTS OF POST RELEASE CONTROL AND THUS THE ACCUSED HAS BEEN DEPRIVED OF HIS RIGHTS TO DUE PROCESS IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES.”
{¶ 16} Defendant argues that his conviction and sentence are void because the trial court failed to рroperly notify him during the sentencing hearing of the mandatory terms of post release control that apply to his convictions, and further fаiled to incorporate that notification into its judgment entry of conviction.
{¶ 17} The trial court failed to properly notify Defendant at the sentencing hearing regarding the mandatory three and five year terms of post release control that apply in this case, and further failed to incorporate that notice into its judgment entry of
{¶ 18} The judgment of conviction entered in Montgomery County Common Pleas Court Case No. 97-CR-449 will be modified to provide that Defendant must serve periods of post-release control of thrеe years and five years, respectively, on his convictions for involuntary manslaughter and felonious assault.
{¶ 19} Defendant‘s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 20} “THE JUDGMENT OF CONVICTION AND SENTENCE ARE FACIALLY VOID FOR FAILURE TO COMPLY WITH STATUTORY REQUIREMENTS OF CRIM.R. 32(C), BY NOT INCLUDING THE FINDING OF GUILT IN THE SENTENCING ENTRY.”
{¶ 21} Defendant argues that his conviсtions are void because
{¶ 22} Defendant did not raise this issue in the trial court by including it as grounds for his motion to vacate his judgment of conviction. Neither did the trial court rule on this issue. Therefore, Defendant has waived this issue for purposes of appeal. In any evеnt, the failure of a judgment of conviction to comply with
{¶ 23} Defendant‘s second assignment of error is overruled.
The judgment of the trial court will be affirmed.
DONOVAN, J., And WAITE, J., concur.
(Hon. Cheryl L. Waite, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Carley J. Ingram, Esq.
William L. Pointer
Hon. Timothy N. O‘Connell