[Cite as State v. Walker,

.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. William B. Hoffman, J. -vs- : : Case No. 11-COA-046 GARY D. WALKER : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 08-CRI-108

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: March 30, 2012

APPEARANCES:

For Appellant: For Appellee:

GARY D. WALKER, Pro Se RAMONA FRANCESCONI ROGERS Inmate No. 554324 ASHLAND COUNTY PROSECUTOR Richland Correctional Institution 1001 Olivesburg Rd. PAUL T. LANGE Mansfield, OH 44901 110 Cottage Street, Third Floor Ashland, OH 44805 [Cite as State v. Walker,

.]

Delaney, J.

{¶1} Defendant-appellant Gary D. Walker appeals from the October 6, 2011

Judgment Entry of the Ashland County Court of Common Pleas denying his Motion to

Correct Void Sentence. Plaintiff-appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} On September 9, 2008, appellant entered pleas of guilty to three counts

of complicity to forgery. Each count is a violation of R.C. 2923.02(A)(2) and

2913.31(A)(3) and is a felony of the fifth degree. On October 6, 2008, the trial court

sentenced appellant to three (concurrent) terms of ten months in prison.

{¶3} The trial court further ordered the following:

{¶4} It is further ORDERED that [appellant’s] post-release control shall be

TERMINATED based upon his violations of post-release control. The Court FINDS

that the Defendant’s time remaining on post-release control is fifty-six (56) days, which

is less than one year. It is therefore ORDERED that the Defendant shall serve an

additional prison sentence of one (1) year for the violation of his post-release control,

pursuant to Ohio Revised Code Section 2929.141. It is further ORDERED, pursuant

to law, that the post-release control time shall be served CONSECUTIVELY to the

sentence imposed above with regards to Counts One, Two, and Three.

{¶5} The trial court also advised appellant of the possibility of up to three

years of postrelease control upon completion of the prison term.

{¶6} On September 19, 2011, appellant filed a “Motion to Correct Void

Sentence.” In that motion, appellant notes that he was convicted in the Cuyahoga

County Court of Common Pleas, case number CR-06-480404-A, for a number of Ashland County, Case No. 11-COA-046 3

offenses, served a prison term, and was placed on postrelease control for one year.

Appellant states that the trial court in the instant case (Ashland County Court of

Common Pleas) sentenced him to an additional prison term of one year for his

violation of the postrelease control imposed by the Cuyahoga County Court of

Common Pleas in accord with R.C. 2929.141.1 Appellant argues, though, that the

Cuyahoga County sentence is void because the Cuyahoga County Court of Common

Pleas did not properly advise him of the term of postrelease control. Specifically,

appellant states the Cuyahoga County sentencing entry “omits the notification under

R.C. 2929.19(B)(3)(e) * * * to inform appellant that he could face up to six months in

prison (one-half of his originally stated one-year prison term) for violating his

postrelease control. Appellant’s Brief, p. 2

1 R.C. 2929.141 states:

(A) Upon the conviction of or plea of guilty to a felony by a person on post- release control at the time of the commission of the felony, the court may terminate the term of post-release control, and the court may do either of the following regardless of whether the sentencing court or another court of this state imposed the original prison term for which the person is on post-release control: (1) In addition to any prison term for the new felony, impose a prison term for the post-release control violation. The maximum prison term for the violation shall be the greater of twelve months or the period of post-release control for the earlier felony minus any time the person has spent under post-release control for the earlier felony. In all cases, any prison term imposed for the violation shall be reduced by any prison term that is administratively imposed by the parole board as a post-release control sanction. A prison term imposed for the violation shall be served consecutively to any prison term imposed for the new felony. The imposition of a prison term for the post-release control violation shall terminate the period of post-release control for the earlier felony. (2) Impose a sanction under sections 2929.15 to 2929.18 of the Revised Code for the violation that shall be served concurrently or consecutively, as specified by the court, with any community control sanctions for the new felony. Ashland County, Case No. 11-COA-046 4

{¶7} The Ashland County Court of Common Pleas overruled appellant’s

Motion to Correct Void Sentence on October 6, 2011.

{¶8} We note that the original sentencing entry in the instant case is devoid of

any reference to which case the postrelease control, and resulting imposition of

sentence, originated from. However, in the judgment entry overruling appellant’s

motion, the trial court acknowledges “The sentence giving rise to a post release

control (sic) was imposed by the Judge John Russo of the Cuyahoga County Common

Pleas Court in its Case No. CR-06-480404-A.”

{¶9} Appellant has not provided the record, including a written transcript, of

the sentencing hearing in Cuyahoga County Court of Common Pleas case number

CR-06-480404-A. He has attached a photocopy of a certified copy of a sentencing

entry in that case2 which states in regard to postrelease control: “Defendant advised of

PRC for 3 years.” In that case, appellant pled guilty to one count of failure to comply

with police officer order (F3), one count of trafficking (F4) and one count of attempted

felonious assault (F3).

{¶10} Appellant appeals from the decision of the Ashland County Court of

Common Pleas overruling his Motion to Correct Void Sentence.

{¶11} Appellant raises two Assignments of Error:

{¶12} “I. THE TRIAL COURT ERRED WHEN IT DENIED MR. WALKER’S

MOTION TO CORRECT VOID SENTENCE AND THUS THE ACCUSED HAS BEEN

DEPRIVED OF HIS RIGHT TO DUE PROCESS IN VIOLATION OF THE 5TH, 6TH,

AND 14TH AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES.”

2 “Exhibit B.” Ashland County, Case No. 11-COA-046 5

{¶13} “II. THE TRIAL COURT ERRED BY IMPOSING COURT COSTS IN ITS

OCTOBER 6, 2011 JUDGMENT ENTRY, WHEN THE COURT DID NOT DO SO

WITH MR. WALKER PHYSICALLY PRESENT AND FAILED TO INFORM MR.

WALKER THAT FAILURE TO PAY COURT COSTS MAY RESULT IN THE COURT

ORDERING HIM TO PERFORM COMMUNITY SERVICE. STATE V. JOSEPH, 125

OHIO ST.3D 76, 926 N.E.2D 278,

; STATE V. DANSBY, 2009-OHIO-

2975.”

{¶14} This case comes to us on the accelerated calendar. App.R. 11.1

governs accelerated-calendar cases and states in pertinent part:

(E) Determination and judgment on appeal.

The appeal will be determined as provided by App.R. 11.1. It shall be sufficient

compliance with App.R. 12(A) for the statement of the reason for the court’s

decision as to each error to be in brief and conclusionary form.

The decision may be by judgment entry in which case it will not be published in

any form.

{¶15} One of the most important purposes of the accelerated calendar is to

enable an appellate court to render a brief and conclusory decision more quickly than

in a case on the regular calendar where the briefs, facts, and legal issues are more

complicated. Crawford v. Eastland Shopping Mall Assn.,

,

(10th Dist. 1983).

{¶16} This appeal shall be considered with the foregoing rules in mind. Ashland County, Case No. 11-COA-046 6

I.

{¶17} Appellant asserts that the imposition of prison time for the postrelease

control violation in Cuyahoga County Court of Common Pleas case number CR-06-

480404 is void because that court did not properly advise him of the term of

postrelease control pursuant to R.C. 2929.19(B)(3)(e). Therefore, he argues, the trial

court in the case sub judice should have granted his Motion to Correct Void Sentence

and not imposed the additional prison term of one year. We disagree.

{¶18} Pursuant to R.C. 2929.141, it is within the trial court’s authority to impose

a prison term for a violation of postrelease control at the same time it sentences for a

new felony. State v. Hill, 5th Dist. No. CT2007-0042,

. The trial

court had jurisdiction under R.C. 2967.28 to impose a postrelease control violation

from another county.

{¶19} The issue before us, however, is what effect, if any, must be given to

appellant’s claim of inadequate notice of postrelease control originating from the

Cuyahoga County case.

{¶20} In State v. Fischer, the Ohio Supreme Court recognized that “In general,

a void judgment is one that has been imposed by a court that lacks subject-matter

jurisdiction over the case or the authority to act. Unlike a void judgment, a voidable

judgment is one rendered by a court that has both jurisdiction and authority to act, but

the court’s judgment is invalid, irregular, or erroneous.”

, 2010-

Ohio-6238,

, ¶ 6.

{¶21} Appellee notes our decision in State v. Henderson, 5th Dist. No. 10-

COA-012,

, appeal not allowed,

, 2011-Ohio- Ashland County, Case No. 11-COA-046 7

4751,

, in which we held that the Ashland County Court of Common

Pleas erred in imposing the remainder of postrelease control from a Lorain County

Court of Common Pleas case in which the Lorain County court did not properly advise

the defendant of postrelease control. We decline to apply the same rationale here

because appellant’s Cuyahoga County sentence was imposed on September 28,

2006; appellant therefore appears to fall within the purview of R.C. 2967.28(B), which

states a trial court’s failure to properly impose postrelease control for sentences

imposed on or after July 11, 2006 does not negate, limit, or otherwise affect the

mandatory period of postrelease control for a felony of the third degree in the

commission of which the offender caused or threatened physical harm to a person.

{¶22} In addition, appellant’s reliance upon R.C. 2929.19(B)(3)(e) is misplaced

as that statute pertains to tier III sex offenders/child-victim offenders, and has no

relevancy to appellant’s postrelease control obligations in the instant case or

Cuyahoga County case.

{¶23} Appellant’s first assignment of error is overruled.

II.

{¶24} Appellant argues in his second assignment of error that the trial court

erred in imposing costs in its entry of October 6, 2011 because those costs were not

imposed at the “sentencing hearing.”

{¶25} The entry appellant challenges, assessing costs to him, is the judgment

entry overruling his Motion to Correct Void Sentence. The trial court states in

pertinent part, “* * *. The Court ORDERS that [appellant’s] September 19, 2011

motion shall be dismissed and costs shall be assessed to [appellant.]” Ashland County, Case No. 11-COA-046 8

{¶26} Appellant cites State v. Joseph,

,

,

, and State v. Dansby, 5th Dist. No. 08 AP 06 0047,

, in

support of his assertion that the trial court erred in imposing costs in its “sentencing

entry” when costs were not imposed in open court at the sentencing hearing. The

costs that appellant contests here, however, are the costs imposed upon denial of his

Motion to Correct Void Sentence, and the authority above is inapplicable.

{¶27} Accordingly, we overrule appellant’s second assignment of error.

{¶28} The judgment of the Court of Common Pleas of Ashland, Ohio is

affirmed.

By: Delaney, P.J.

Gwin, J. and

Hoffman, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. WILLIAM B. HOFFMAN [Cite as State v. Walker,

.]

IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : GARY D. WALKER : : : Case No. 11-COA-046 Defendant-Appellant :

For the reasons stated in our accompanying Opinion on file, the judgment of the

Ashland County Court of Common Pleas is affirmed. Costs assessed to Appellant.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. WILLIAM B. HOFFMAN