[Cite as State v. Edwards,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 10CA12 : vs. : Released: September 25, 2012 : CHARLES EDWARDS, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : APPEARANCES:

Timothy Young, Ohio State Public Defender, and Craig M. Jaquith, Columbus, Ohio, Ohio State Assistant Public Defender, for Appellant.

Colleen S. Williams, Meigs County Prosecutor, and Amanda Bizub-Franzmann, Meigs County Assistant Prosecutor, Pomeroy, Ohio, for Appellee.

McFarland, J.:

{¶1} Appellant Charles Edwards appeals his conviction in the Meigs County

Court of Common Pleas for escape. Edwards raises five assignments of error,

arguing 1) there was insufficient evidence to convict him; 2) the trial court erred in

determining he was a repeat violent offender and imposing the maximum sentence

when there was no specification to that effect; 3) the trial court erred when it

imposed the sentence under the mistaken belief that Edwards could be released on

“shock probation”; 4) the trial court erred when it permitted the jury to know

Edwards had two previous felony convictions and gave no limiting instructions on

how to use such information; and 5) he received ineffective assistance of counsel. Meigs App. No. 10CA12 2

{¶2}Having reviewed the record, we find there was insufficient evidence to

convict Edwards of escape because his previous convictions had improperly

imposed postrelease control. Thus, we sustain Edwards’ first assignment of error,

which renders his remaining assignments of error moot, and vacate his conviction

for escape.

FACTS

{¶3}On August 22, 2005, Edwards pled guilty to one count of robbery, a

third-degree felony, and one count of fleeing, a third-degree felony. The trial court

sentenced him to a prison term of three years on each count, to be served

concurrently. The sentencing entries also informed Edwards “upon completion of

any prison sentence imposed in this case he will be subject to five years of post

release control under the direction of the Adult Parole Authority.” (Emphasis

added.)

{¶4}Edwards completed his prison term and in April 2009, met with Adult

Parole Authority (“APA”) officer Paul Koch (“Koch”). Koch supervised Edwards,

who complied with the terms of postrelease control until October 2009, when

Edwards ceased reporting to Koch. One month later, Koch declared Edwards an

absconder and he had Edwards arrested for escape.

{¶5}Edwards’ escape charge proceeded to a jury trial. The state introduced

Koch’s testimony that he had supervised Edwards, in addition to the sentencing

entries from Koch’s 2005 convictions that imposed the postrelease control. The Meigs App. No. 10CA12 3

jury convicted Edwards of escape and the trial court sentenced him to five years

for the escape conviction in addition to one year and 264 days, the amount of time

remaining for Edwards’ postrelease control. Edwards now appeals.

ASSIGNMENTS OF ERROR

I. “[Appellant’s] conviction for escape was based upon insufficient

evidence.”

II. “The trial court erred by imposing a maximum sentence based upon a

finding that [Appellant] was a “repeat violent offender” when the indictment

contained no such specification.”

III. “The trial court erred when it imposed a sentence under the mistaken

belief that [Appellant] could be released on ‘shock probation.’”

IV. “The trial court erred when 1) it allowed the jurors to learn that

[Appellant] had two prior third-degree felony convictions, when only one

was needed to establish an element of escape, and 2) provided no limiting

instruction regarding the proper purposes for which the conviction could be

considered.”

V. “The performance of trial counsel was deficient, and deprived

[Appellant] of the right to effective assistance of counsel guaranteed by the

Sixth and Fourteenth Amendments to the United States Constitution, and

Section 10, Article 1 of the Ohio Constitution.” Meigs App. No. 10CA12 4

I.

{¶6}In his first assignment of error, Edwards argues his conviction for

escape was based upon insufficient evidence. Specifically, he contends postrelease

control was improperly imposed in his prior convictions and thus he was not

legally under detention and could not commit the crime of escape. The state

counters that it sufficiently proved at trial Edwards was under detention and

because he did not directly appeal his prior convictions, the present conviction for

escape should stand. As we find Edwards’ prior convictions improperly imposed

postrelease control and he was not under legal detention when he failed to report to

Koch, we must vacate his conviction for escape.

A. Standard of Review

{¶7}When reviewing the sufficiency of the evidence, appellate courts look

to the adequacy of the evidence and whether that evidence, if believed by the trier

of fact, supports a finding of guilt beyond a reasonable doubt. State v. Thompkins,

,

(1997); State v. Jenks,

,

(1991). In other words, after viewing the evidence, and each

inference that can reasonably drawn therefrom, in a light most favorable to the

prosecution, could any rational trier of fact have found all essential elements of the

offense beyond a reasonable doubt? See State v. Were,

, 2008-

Ohio-2762,

, at ¶ 132; State v. Hancock,

, 2006- Meigs App. No. 10CA12 5

Ohio-160,

; State v. Jones,

,

(2000).

B. Legal Analysis

R.C. 2921.34 (A)(1) provides:1

No person, knowing the person is under detention or being reckless in

that regard, shall purposely break or attempt to break the detention, or

purposely fail to return to detention, either following temporary leave

granted for a specific purpose or limited period, or at the time required

when serving a sentence in intermittent confinement.

{¶8}For an escape to occur, there must have been a lawful detention. In

Edward’s case, the state argued the detention was the postrelease control that

resulted from Edwards’ two felony convictions in 2005. Yet, “in the absence of a

proper sentencing entry imposing postrelease control, the parole board’s

imposition of postrelease control cannot be enforced.” State v. Bloomer,

,

,

. That is, if the imposition of

postrelease control is flawed, there is no lawful detention. “A void [postrelease]

control supervision cannot support a charge of escape.” State v. Renner, 2d. Dist.

No. 24019,

, at ¶ 19. See, also, State v. Pointer, 2d Dist. No.

24210,

, at ¶ 28 (following Renner).

1 Former version of R.C. 2921.34(A)(1), of which Edwards was convicted. Meigs App. No. 10CA12 6

{¶9}The trial court must inform the offender of and include in its sentencing

entry two basic facts: the length of the term of postrelease control and whether

such postrelease control is mandatory.

. “[A] sentence that is not

in accordance with statutorily mandated terms is void.” State v. Fischer,

,

,

, at ¶ 8. R.C. 2967.28(C) subjects an

offender who was convicted of a third-degree felony to a discretionary period of up

to three years of postrelease control. It does not subject such an offender to a

mandatory five-year term of postrelease control.

{¶10} “[I]n cases in which a trial judge does not impose postrelease control

in accordance with statutorily mandated terms[,] * * * the sentence is void.

Principles of res judicata, including the doctrine of the law of the case, do not

preclude appellate review. The sentence may be reviewed at any time, on direct

appeal or by collateral attack.” Fischer at ¶ 30. “Although the interests in finality

of a sentence are important, they cannot trump the interests of justice, which

require a judge to follow the letter of the law in sentencing a defendant.” Fischer

at ¶ 23.

{¶11}Here, the Jackson County Court of Common Pleas sentenced Edwards

to three years in prison for one count of robbery, to be served concurrently with a

three-year term of imprisonment for one charge of fleeing. Both crimes were

third-degree felonies. Yet instead of informing Edwards he was subject to a

discretionary term of postrelease control of up to three years, the court informed Meigs App. No. 10CA12 7

Edwards he was subject to a mandatory five-year term of postrelease control. This

notification was erroneous, did not comply with R.C. 2967.28, and failed to

accurately inform Edwards of the length of the period of postrelease control and

whether such term was mandatory. Thus, Edwards’ postrelease control stemming

from his two convictions in 2005 was not properly imposed and is void.

{¶12}The state’s reliance on State v. Jordan,

, 2010-

Ohio-281,

and State v. Chandler, 5th Dist. No. 2010-CA-00295,

, to suggest a contrary outcome is misplaced. In Jordan, the

Supreme Court specifically noted that it was not addressing the issue that is before

us in this appeal. And for that reason, the state’s reliance on Jordan is misplaced:

“Our holding today does not reach the question of whether a defendant can be

convicted of escape when the evidence affirmatively demonstrates the Department

of Rehabilitation and Correction lacked the authority to supervise the accused.”

. Moreover, the holding in Jordan merely acknowledged that absent

proof of whether the sentencing court properly imposed postrelease control, other

evidence may be introduced to demonstrate a defendant was under detention.

.

{¶13} In Chandler, the defendant had pled guilty to escape, but later sought

to withdraw his guilty plea because he alleged the APA had no authority to

supervise him since the trial court had incorrectly informed him of postrelease

control, which formed the basis of his escape charge. The court held Chandler’s Meigs App. No. 10CA12 8

postrelease control was void, but also held the doctrine of res judicata barred him

from collaterally challenging the validity of the postrelease control via a motion to

withdraw his guilty plea. Chandler at ¶ 15, 32. Even though Fischer explicitly

acknowledged a void sentence to be attacked at any time, even collaterally, the

court penalized Chandler for not filing a direct appeal in the case that originally

improperly imposed the postrelease control or in the subsequent case surrounding

the escape charge, and denied his motion to withdraw his guilty plea. Not only is

Chandler non-binding, but we are unable to reconcile its holding with Fischer,

which is binding.

{¶14}We recognize that like Chandler, the flawed postrelease control

language in Edwards’ 2005 sentencing entries cannot be corrected now because he

has completed his prison terms on those cases. However, we cannot ratify a void

postrelease control sanction and permit it to subsequently form the basis of a new

conviction. Therefore, we sustain Edwards’ first assignment of error, vacate his

conviction and order him discharged. Edwards’ remaining assignments of are

moot.

JUDGMENT VACATED. [Cite as State v. Edwards,

.]

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE VACATED and that the Appellant recover of Appellee costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Meigs County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Harsha, J. and Kline, J: Concur in Judgment and Opinion.

For the Court,

BY: _________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.