[Cite as State v. Hill,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96923

STATE OF OHIO PLAINTIFF-APPELLANT

vs.

ROBERT HILL DEFENDANT-APPELLEE

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-506427

BEFORE: S. Gallagher, J., Boyle, P.J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: May 24, 2012 ATTORNEYS FOR APPELLANT

William D. Mason Cuyahoga County Prosecutor

By: John Hanley T. Allan Regas Assistant Prosecuting Attorneys The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Robert L. Tobik Cuyahoga County Public Defender

By: John T. Martin Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, OH 44113

SEAN C. GALLAGHER, J.:

{¶1} The state of Ohio appeals the decision of the trial court to grant Hill’s motion

in limine precluding the introduction of any evidence demonstrating Hill’s 2003 conviction for felonious assault. For the following reasons, the trial court’s decision is

reversed, and the case is remanded for further proceedings.

{¶2} In 2003, Hill was convicted of felonious assault and sentenced to two years of

prison, which included postrelease control for the “maximum period allowed for [a

second-degree felony] under R.C. 2967.28.” Hill was released from prison sometime in

2005 and placed on three years of postrelease control, the maximum allowed for a

second-degree felony. As of November 2007, Hill failed to complete three separate

requirements of his postrelease control.

{¶3} Hill was indicted for escape, pursuant to R.C. 2921.34(A)(1), on February 5,

2008, but was not arrested until June 5, 2010. Hill filed a motion to dismiss the

single-count indictment on the basis that the sentencing journal entry failed to properly

notify Hill of his three-year term of postrelease control. Hill never introduced the

transcript of the 2003 sentencing hearing. His arguments were limited to the language

of the 2003 sentencing journal entry. The trial court granted Hill’s motion, and the state

successfully appealed. State v. Hill, 8th Dist. No. 95469,

. Upon

remand, Hill filed a motion in limine to prevent the state from introducing evidence of

Hill’s 2003 conviction, relying on the same argument that the 2003 sentencing entry was

void because it failed to notify Hill of his three-year term of postrelease control. Once

again, the trial court granted Hill’s motion and the state timely appealed, raising one

assignment of error, which provides as follows: “The trial court erred when it granted

[Hill’s] motion in limine precluding the state from introducing evidence relating to [Hill’s] prior conviction in an escape case.” The state’s sole assignment of error has

merit.

{¶4} Regardless of the procedural posture in this case, Hill has once again shifted

the focus of the argument, raised in his motion in limine, to the determination of whether

his 2003 sentence was facially void for notifying Hill of his three-year term of postrelease

control through the following language: “Post release control is a part of this prison

sentence for the maximum period allowed for the above felony[, a second-degree felony,]

under R.C. 2967.28[,]” the so-called maximum-period-allowed language.

{¶5} “The failure to properly notify a defendant of postrelease control and to

incorporate that notice into the court’s sentencing entry renders the sentence void.”

State v. Cash, 8th Dist. No. 95158,

, ¶ 7, citing State v. Jordan,

,

,

, paragraph one of the syllabus. Further, the

void sentence cannot be the basis of an escape charge. Cash at ¶ 9. The sole issue,

therefore, is whether the 2003 sentencing entry is void for referencing the postrelease

control statute, R.C. 2967.28, to establish notice of the duration, rather than being more

specific and stating the three-year term of postrelease control pursuant to R.C.

2967.28(B)(2).

{¶6} This district has recently affirmed the validity of the trial court’s postrelease

control notice based on identical language. State v. Bailey, 8th Dist. No. 93994,

, ¶ 2, 20. In Bailey, the defendant challenged the validity of his

sentencing entry, which included the statement that “post release control is a part of this prison sentence for the maximum period allowed for the above felony(s) under R.C.

2967.28.” This court held that the sentencing entry sufficiently provided the defendant

with notice of the terms of his postrelease control because he was orally notified at the

sentencing hearing of all the specific terms. Id. at ¶ 19. Therefore, where the oral

notifications are proper, the maximum-period-allowed language does not render the

sentencing entry void. State v. Peterson, 8th Dist. No. 96958,

; State

v. Donahue, 8th Dist. No. 89111,

(holding that the sentencing entry

using the maximum-period-allowed language properly informed the defendant of the

postrelease control term, but the trial court erred by failing to discuss the ramifications of

future violations).

{¶7} Hill never submitted the trial court transcript from his sentencing hearing. It

is well settled that we must presume regularity of the proceedings. State v. Brown, 8th

Dist. No. 95086,

, ¶ 9, citing State v. Estrada,

,

(7th Dist. 1998). Because of the presumption of regularity, we must

presume that the sentencing trial court properly notified Hill, orally, of the specific terms

of his postrelease control, and the 2003 sentencing entry, therefore, is not void in light of

this court’s Bailey decision. Id. at ¶ 10. We note that this presumption also

distinguishes this case from the Ohio Supreme Court’s decisions in Jordan,

,

,

, recognized as superseded by statute, State v.

Singleton,

,

,

, and State v. Bloomer,

,

,

, which dealt with the trial court’s failure to provide oral notice of postrelease control at the sentencing hearing or its failure

to include any postrelease control language in the final sentencing entry.

{¶8} In response, Hill argues that his sentencing entry is void based on State v.

Roche, 8th Dist. No. 90089,

. Hill’s reliance is misplaced. Indeed, in

Roche the sentencing entry used the maximum-period-allowed language, the same at issue

in this case. Roche is distinguishable, however, because the defendant in Roche was

never orally notified of postrelease control at the sentencing hearing. Id. at ¶ 5. The

first notification was provided in the sentencing entry. The defendant must be given the

oral notification at the sentencing hearing in order for the maximum-period-allowed

language to be sufficient. See also State v. Atkinson, 8th Dist. No. 93855,

, ¶ 7 (holding that the defendant’s sentence was void because of the trial

court’s failure to orally advise him of postrelease control and the use of the

maximum-period-allowed language in the sentencing entry did not correct the

deficiency); but see State v. Siwik, 8th Dist. No. 92341,

(remanding the

case for resentencing because of R.C. 2929.191, later held inapplicable by Singleton to

cases, such as Siwik, where the defendant was sentenced prior to the effective date of

R.C. 2929.191).

{¶9} The state’s sole assignment of error is accordingly sustained. The trial court

erred in precluding the state from introducing evidence of Hill’s 2003 conviction. The

postrelease control portion of the 2003 sentencing entry is not void. The decision of the trial court is reversed, and the case once again is remanded for further proceedings

consistent with the foregoing.

{¶10} Reversed and remanded.

This cause is reversed and remanded to the lower court for further proceedings

consistent with this opinion.

It is ordered that appellant recover from 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 common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, J., CONCURS; MARY J. BOYLE, P.J., DISSENTS WITH SEPARATE OPINION

MARY J. BOYLE, P.J., DISSENTING:

{¶11} I respectfully dissent. I would affirm the trial court’s judgment because I

find the postrelease control portion of Hill’s 2003 sentence to be void.

{¶12} It is my view that the facts in this case are identical to the facts in State v.

Cash, 8th Dist. No. 95158,

. In Cash, the defendant was charged with

escape based on allegations that he violated his postrelease control. Just as in the present case, the sentencing entry from Cash’s prior conviction had given him notice of

postrelease control, but it did “not specify any terms of postrelease control.” Id. at ¶ 2.

This court held that because Cash’s postrelease control was void, it could not support an

escape conviction. Id. at ¶ 9. We reasoned:

In Hernandez v. Kelley,

,

,

, the Ohio Supreme Court noted that “nothing in R.C. 2967.28 authorizes the Adult Parole Authority to exercise its postrelease control authority if postrelease control is not imposed by the trial court in its sentence.” (Emphasis omitted.) Id. at ¶ 18. Thus, the Adult Parole Authority lacked jurisdiction to impose postrelease control on Cash because it was not included in a valid sentence, nor was there a judicial order imposing postrelease control. Without a valid form of detention, Cash cannot be convicted of escape.

{¶13} Because the defendant in Cash had already served his prison sentence (just

as Hill has in the present case), he could not be hauled back into court to impose

postrelease control. State v. Bezak,

,

,

.

{¶14} Based on Hill’s conviction for felonious assault in 2003, he was subject to a

mandatory three-year term of postrelease control. R.C. 2967.28(B)(2). Just as in Cash,

the trial court gave him notice of postrelease control, but did not affirmatively state that

he would be subject to three years of mandatory postrelease control following his release

in 2005. “A sentence that does not include the statutorily mandated term of postrelease

control is void.” State v. Fischer,

,

,

,

paragraph one of the syllabus. Therefore, the postrelease control portion of Hill’s

sentence is void. Thus, the Adult Parole Authority did not have the authority to enforce postrelease control restrictions against him, and he was not legally under detention at the

time the alleged escape was committed.