[Cite as State v. Adkins,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO : : Appellate Case No. 2010-CA-69 Plaintiff-Appellee : : Trial Court Case No. 02-CR-326 v. : : (Criminal Appeal from RONDAL ADKINS : (Common Pleas Court) : Defendant-Appellant : : ...........

OPINION

Rendered on the 10th day of June, 2011.

...........

STEPHEN K. HALLER, by CHERI L. STOUT, Atty. Reg. #0073725, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

PETER GALYARDT, Atty. Reg. #0085439, Office of the Ohio Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant

.............

HALL, J.

{¶ 1} Rondal Adkins appeals from the trial court’s judgment entry overruling his

motion to vacate a void sentence and terminate post-release control. Adkins contends the trial

court improperly imposed post-release control when it re-sentenced him in 2003, rendering

the post-release control portion of his sentence void. Therefore, he claims, the Adult Parole 2

Authority lacked the power to impose post-release control following his release from prison in

2010 and the trial court should have terminated his post-release control.

{¶ 2} The record reflects that Adkins pled guilty to multiple counts of rape in 2002.

He received concurrent ten-year prison sentences. The trial court did not mention post-release

control during the sentencing hearing. The sentencing entry states that post-release control is

“mandatory in this case up to a maximum of 5 years[.]” Adkins appealed on grounds unrelated

to post-release control. This Court reversed and remanded for re-sentencing. In 2003, the trial

court re-sentenced Adkins to concurrent eight-year prison terms. At the re-sentencing hearing,

the trial court advised him that he was subject to mandatory post-release control “up to a

maximum of five years.” The re-sentencing judgment entry similarly provides that

post-release control is “mandatory in this case up to a maximum of 5 years.”

{¶ 3} Adkins completed his prison term and was released in May 2010. Upon his

release, the Adult Parole Authority placed him on five years of post-release control. In August

2010, Adkins moved to vacate a void sentence and terminate post-release control. He argued

that the trial court’s imposition of mandatory post-release control “up to” five years was

erroneous, rendering that portion of his sentence void. Moreover, because he had completed

his prison term, Adkins asserted that the trial court could not re-sentence him to correct the

error. The trial court overruled Adkins’s motion. The trial court, relying on State v.

Harrington, Greene App. No. 06 CA 29,

, and State v. Sulek, Greene App.

No. 09 CA 75,

, held that the language it had used when imposing

post-release control was sufficient. This appeal followed.

{¶ 4} In his two assignments of error, Adkins contends the “up to” language the trial 3

court used was not adequate to impose post-release control, that the error rendered the

post-release control portion of his sentence void, and that his completion of his prison term

precludes the trial court from correcting the error. As a result, he asserts that he is not subject

to any post-release control. Upon review, we find Adkins’s argument to be persuasive.

{¶ 5} In late 2010, the Ohio Supreme Court narrowed its prior holdings about the

effect of mistakes in the imposition of post-release control, but left intact the holding that an

incorrect post-release control requirement renders the post-release control portion of a

sentence void. State v. Fischer,

,

. Subsequent to Fischer,

this Court decided State v. Conway, Clark App. No. 2010-CA-50,

, where the

Court stated at ¶25 n.1: “In the case before us, there is a discrete part of the sentencing entry

that is ‘void’—the part that provides for post-release control for ‘up to’ three years.” The

State, in its brief, has asked that we reconsider Conway. Additionally, as late as April 29,

2011, this court decided State v. Blackshear, Montgomery App. No. 24302,

,

wherein it was recognized that “[w]hen a trial court does not impose post-release control in

accordance with statutorily mandated terms, that portion of the sentence is void.“ Id. at ¶12.

More specifically, “[l]anguage that ‘appears to allow the parole board discretion to impose

less than [the mandatory term] of post-release control’ does not conform to the statutory

mandates, rendering that portion of the sentence void.” Id. (citations omitted).

{¶ 6} In the present case, the trial court advised Adkins orally, and in its

re-sentencing entry, that he was subject to mandatory post-release control for “up to” five

years. The parties agree that, in reality, Adkins was subject to mandatory post-release control

for the entire five years. Logically, “up to” five years also includes five years and could not 4

conceivably prejudice the defendant. But, the case law is to the contrary. Therefore, the

post-release control portion of Adkins’s sentence is void. Id.; see, also, State v. Pearson,

Montgomery App. No. 23974,

, ¶3 and 9 (implicitly recognizing that the

post-release control portion of the defendant’s sentence was void where the trial court

incorrectly imposed “up to” five years rather than exactly five years).

{¶ 7} Other appellate districts similarly have found that using “up to” language when

imposing post-release control is error—and renders the post-release control portion of the

sentence void—where mandatory post-release control for a specific number of years is

required. See, e.g., State v. Bregen, Clermont App. No. 2010-06-039,

, ¶25;

State v. Jones, Wayne App. No. 10 CA 0022,

, ¶11-13; State v. Gaut,

Trumbull App. No. 2010-T-0059,

, ¶20-24; State ex rel. Hazel v. Bender,

Franklin App. No. 10AP-435,

, ¶5; State v. Cottrill, Pickaway App. No. 10

CA 38,

; State v. Green, Stark App. No. 2010 CA 00198,

; State v. Jones, Cuyahoga App. No. 94216,

, ¶4-5.

{¶ 8} In reaching its conclusion below, the trial court cited State v. Harrington,

Greene App. No. 06 CA 29,

, and State v. Sulek, Greene App. No. 09 CA 75,

. As in the present case, the defendant in Harrington argued on appeal that the

trial court had erred in imposing “up to” five years of post-release control when a full five

years was required. This court cursorily disposed of the defendant’s argument, stating: “We do

not presently decide what effect, if any, the above-quoted statement in the termination entry

may have on the period of Harrington‘s post release control. We note that this error, if it is an

error, cannot possibly prejudice Harrington. If the error has any legal effect at all, it would be 5

to shorten Harrington‘s period of post release control, which would be to his advantage, not to

his detriment.” Thus, not only was Harrington decided before the Supreme Court’s latest

pronouncement in Fischer, Harrington also specifically did not decide the effect of an

incorrect post-release control statement. The body of case law set forth above, decided after

Harrington, establishes that the post-release control portion of the defendant’s sentence is

void.

{¶ 9} Likewise, Sulek was decided before Fischer. Additionally, in Sulek, this court

cited Harrington while holding that the trial court had committed reversible error by

misinforming the defendant convicted of a second-degree felony that he was subject to five

years of post-release control rather than three. Sulek was remanded for resentencing.

Accordingly, Sulek does not support the State’s position in this case.

{¶ 10} An unfortunate result of the Fischer “void” analysis is that defendants such as

Adkins, who by the facts underlying his conviction should be under supervision, avoid the

statutorily intended consequence. Because he has completed his sentence without the error

being corrected, Adkins cannot now be subjected to a period of post-release control. See, e.g.,

State v. Simpkins,

,

, ¶8-9; State v. Bloomer,

,

. In Fischer, the Supreme Court majority was of the

opinion that “[i]n light of the General Assembly‘s enactment of R.C. 2929.191[resentencing

procedure for post July 2006 inadequate post-release control sentences], it is likely that our

work in this regard is drawing to a close, at least for purposes of void sentences.” Actually,

these problems will fester for years to come. Because voidness can be raised at any time,

Fischer‘s “void” analysis encourages defendants not to challenge technically incorrect 6

post-release control orders until after they are released because the problem cannot then be

rectified.

{¶ 11} Uncertainty about uncorrected, technically inaccurate post-release control will

be evident in at least three distinct kinds of cases. The first, as here, is where a defendant is

released from prison and placed on post-release control. He then raises the technical

inadequacy issue which, based on the “void” analysis, will end the post-release control

supervision. The second scenario is where a released prisoner is placed under supervision on

technically incorrect post-release control and fails to raise the issue until he is charged, or even

convicted and sentenced, for a new offense of escape for failure to comply with the terms of

supervision. The “void” post-release control analysis now extends to evaporate the new

charge. See, e.g., State v. Renner, Montgomery App. No. 24019,

; State v.

Pointer, Montgomery App. No. 24210,

. Finally, a third line of cases will

arise where a released prisoner is placed on technically incorrect post-release control and then

has his premises searched under the APA’s supervisory authority. If felony contraband is

found, the “void” post-release control analysis vitiates the APA’s supervision, and the

agency’s authority to search, which may result in the suppression of evidence, even if obtained

in good faith pursuit of its duties. See Blackshear.

{¶ 12} Unless and until the Ohio Supreme Court changes its “void” post-release

control analysis or the legislature changes the statutory implementation of supervision, the

State should be on notice that every sentencing entry should be reviewed for accuracy before

imposition of post-release control.

{¶ 13} Based on the reasoning set forth above, we conclude that the trial court erred in 7

making Adkins’s post-release control mandatory for “up to a maximum of 5 years.” This error

rendered the post-release control portion of his sentence void. Because he completed his

sentence without the error being corrected, Adkins cannot now be subjected to a period of

post-release control. See, e.g., Simpkins, ¶8-9; Bloomer, ¶70-72. Accordingly, we sustain his

two assignments of error.

{¶ 14} The portion of the trial court’s sentencing entry imposing post-release control is

vacated. As so modified, the judgment is affirmed. The cause is remanded to the trial court to

notify the APA about the vacation of post-release control.

.............

FAIN and FROELICH, JJ., concur.

Copies mailed to:

Stephen K. Haller Cheri L. Stout Peter Galyardt Hon. Stephen Wolaver