[Cite as State v. Pointer,

.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24446

vs. : T.C. CASE NO. 97CR449

WILLIAM L. POINTER : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 30th day of September, 2011.

. . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros. Attorney, Atty. Reg. No. 0020084, P.O. Box 972, Dayton, OH 45422

Attorney for Plaintiff-Appellee

William L. Pointer, #626-192, P.O. Box 7010, Chillicothe, OH 45601

Defendant-Appellee, Pro Se

. . . . . . . . .

GRADY, P.J.:

{¶ 1} Defendant, William L. Pointer, appeals from a judgment

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 2

assault and one count of involuntary manslaughter. The trial court

accepted the pleas and sentenced Defendant to concurrent prison

terms of seven years for the felonious assault and nine years for

the involuntary manslaughter. The offenses mandate terms of

post-release control of three and five years. In its judgment

of conviction, the court ordered:

{¶ 3} “Following the defendant’s release from prison, the

defendant will/may serve a period of post-release control under

the supervision of the parole 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: 3

{¶ 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 felonious 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 was

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 supervision was terminated in February of 2010. Defendant 4

did not file this motion until August 30, 2010. The Supreme Court

has essentially held that an error with respect to imposition of

post release control does not necessarily cause the conviction

to be void. In State v. Fischer, the Ohio Supreme Court held that

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 the conviction, including the determination of

guilt and lawful elements of the ensuing sentence.

{¶ 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. Defendant did not appeal

his sentence. He did not seek any type of post-conviction relief.

{¶ 12} “The Defendant did not specifically challenge his

post-release control until after it was terminated. Even assuming

the post-release control is not properly imposed 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 Defendant can have that reviewed after the sentence has

been served and the supervision terminated. 5

{¶ 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 properly notify him during

the sentencing hearing of the mandatory terms of post release

control that apply to his convictions, and further failed to

incorporate that notification into its judgment entry of

conviction. R.C. 2967.28(B)(1) and (2); R.C. 2929.19(B)(3)(c)

and (e); State v. Simpkins,

,

;

State v. Terry, Darke App. No. 09CA0005,

.

{¶ 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 6

conviction or “Termination Entry.” That error in imposing post

release control does not void Defendant’s conviction, however.

Rather, it voids only that part of Defendant’s sentence. State

v. Fischer,

,

; State v. Renner,

Montgomery App. No. 24019,

. The remedy is a new

sentencing hearing at which post-release control is properly

imposed.

paragraph two of the Syllabus by the Court. When

the applicable terms of post-release control are mandatory, as

they are here, an appellate court is authorized by R.C.

2953.08(G)(2) to correct the defect in imposing post-release

control by modifying the sentence without a remand. Fischer, ¶29.

{¶ 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 three

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 convictions are void because 7

the judgment of conviction does not set forth the manner of

Defendant’s conviction, which was his guilty pleas, and the court’s

verdict or finding of guilt thereon. Both are required by Crim.R.

32(C). See: State v. Baker,

,

.

{¶ 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 event, the failure of a judgment of conviction to comply

with Crim.R. 32(C) does not render the judgment void. State ex

rel. DeWine v. Burge,

,

.

{¶ 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