[Cite as State v. Summers,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO C.A. No. 10CA0020-M

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE SHAWN R. SUMMERS COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 98-CR-0360

DECISION AND JOURNAL ENTRY

Dated: April 18, 2011

DICKINSON, Judge.

INTRODUCTION

{¶1} Shawn Summers pleaded guilty to various offenses and the trial court sentenced

him to prison. Mr. Summers served his sentence and, following his release from prison, moved

the trial court to vacate his sentence and discharge him from post-release control due to an error

in the trial court’s journal entry. The trial court denied the motion, and Mr. Summers has

appealed. This Court partially reverses because the trial court’s journal entry contained an error

in the imposition of post-release control, requiring that part of the entry to be vacated as void.

BACKGROUND

{¶2} Shawn Summers pleaded guilty to involuntary manslaughter, attempted murder,

felonious assault, and three counts of complicity to commit felonious assault. In August 1999,

the trial court sentenced him to six years in prison and indicated in the journal entry that “post

release control is mandatory in this case up to a maximum of (5) years[.]” 2

{¶3} Mr. Summers did not appeal the trial court’s judgment. In September 2004, after

serving his sentence, Mr. Summers was released to the supervision of the Ohio Adult Parole

Authority. In May 2005, according to the Parole Authority, Mr. Summers was convicted in

United States District Court of being a felon in possession of a firearm. At a hearing in

November 2009, based on the federal conviction, Mr. Summers was found to have violated the

terms of his post-release control. He was sentenced to serve 180 days in state prison as a

sanction for the violation. He began serving the sanction in December 2009.

{¶4} In March 2010, Mr. Summers moved the trial court to vacate his judgment and

discharge him from post-release control, arguing that the judgment was void because it did not

properly impose post-release control. The trial court held a hearing and denied the motion. Mr.

Summers has appealed that decision.

POST-RELEASE CONTROL

{¶5} Under Section 2967.28(B) of the Ohio Revised Code, “[e]ach sentence to a prison

term for a felony of the first degree . . . shall include a requirement that the offender be subject to

a period of post-release control . . . after the offender’s release from imprisonment.” For a felony

of the first degree, the period is five years. R.C. 2967.28(B)(1). The Ohio Supreme Court has

held that “a sentence that does not conform to statutory mandates requiring the imposition of

postrelease control is a nullity and void [and] must be vacated.” State v. Simpkins,

,

, ¶22. Recently, the Ohio Supreme Court has reconsidered its precedent

in this area and held that only the part of the sentence improperly imposing post-release control

must be vacated as void, leaving the rest of the sentence intact. State v. Fischer,

,

. In many cases, a post-release control error may be easily

remedied. State v. Singleton,

,

, at paragraphs one and two 3

of the syllabus. If, however, the error is not discovered until after the offender has been released

from prison, the courts no longer have authority to impose post-release control. Id. at ¶15-16;

State v. Bloomer,

,

(citing State v. Bezak,

,

, at ¶18) (“[O]nce an offender has completed the prison term imposed

in his original sentence, he cannot be subjected to another sentencing to correct the trial court’s

flawed imposition of postrelease control.”).

{¶6} In this case, the trial court sentenced Mr. Summers to a prison term for two first-

degree felonies and various lesser offenses. Rather than imposing the statutorily mandated term

of five years of post-release control, the trial court imposed “up to a maximum of five years.”

The trial court had no authority to “substitute a different sentence for that which is required by

law.” State v. Simpkins,

,

, ¶20; see also State v. O’Neal, 9th

Dist. No. 09CA0045-M,

, at ¶6 (noting that sentence imposing “up to a

maximum of five years” of post-release control does not meet statutory requirement of

mandatory five years for a first-degree felony). Therefore, the part of the sentence addressing

post-release control is void and must be vacated. State v. Fischer,

, 2010-

Ohio-6238, at ¶26.

{¶7} Trial courts as well as appellate courts have “the inherent power . . . to vacate

void judgments.” Cincinnati Sch. Dist. Bd. of Educ. v. Hamilton County Bd. of Revision,

(2000). “A court has inherent power to vacate a void judgment because

such an order simply recognizes the fact that the judgment was always a nullity.” Van DeRyt v.

Van DeRyt,

(1966). Regardless of whether a timely notice of appeal has

been filed or whether there is a final, appealable order, an appellate court may exercise the power

to vacate a void judgment. State v. Bedford,

,

, at ¶12. 4

{¶8} Mr. Summers’ assignment of error is sustained. The part of his sentence

addressing post-release control must be vacated as void. Furthermore, since the post-release

control error was not discovered until after Mr. Summers had completed his prison term, he

cannot be re-sentenced to impose the proper term of post-release control. State v. Bloomer,

,

(citing State v. Bezak,

, 2007-Ohio-

3250, at ¶18).

CONCLUSION

{¶9} Mr. Summers’ assignment of error is sustained. This Court exercises its inherent

power to vacate the part of the sentence that improperly imposed post-release control. The rest

of the sentence shall remain intact. The judgment of the Medina County Common Pleas Court

denying Mr. Summers’ motion to vacate is partially reversed, its August 6, 1999, journal entry is

partially vacated, and the matter is remanded. On remand, the trial court is instructed to

discharge Mr. Summers from all post-release control obligations and note on the record that,

because he has completed his original term of imprisonment, he will not be subject to re-

sentencing.

Judgment reversed in part, vacated in part, and remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 5

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

CLAIR E. DICKINSON FOR THE COURT

BELFANCE, P. J. MOORE, J. CONCUR

APPEARANCES:

STEPHEN P. HARDWICK, Assistant Public Defender, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and RUSSELL A. HOPKINS, Assistant Prosecuting Attorney, for Appellee.