[Cite as State v. Viccaro,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99816

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MICHAEL VICCARO DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-541019

BEFORE: E.A. Gallagher, P.J., McCormack, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: August 8, 2013 FOR APPELLANT

Michael Viccaro, pro se Inmate No. 593-977 2500 South Avon-Belden Rd. Grafton, OH 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Daniel T. Van Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 EILEEN A. GALLAGHER, P.J.:

{¶1} In this accelerated appeal, Michael Viccaro (“Viccaro”) appeals the

decision of the trial court denying his motion to withdraw his guilty plea. Viccaro

argues that his term of postrelease control was not properly imposed and, thus, cannot

provide the basis for the current charge of escape. Finding merit to the instant appeal,

we reverse the decision of the trial court and remand for proceedings consistent with this

opinion.

{¶2} In 2004, Viccaro pleaded guilty to one count of kidnapping and one count

of aggravated theft, and the trial court sentenced him to a three-year prison term. Prior

to the expiration of Viccaro’s prison sentence, the trial court conducted a resentencing

hearing and advised Viccaro that upon his release he would be subjected to a five-year

period of postrelease control supervision. Viccaro violated the terms and conditions of

his postrelease control supervision and the Cuyahoga County Grand Jury indicted him

with one count of escape. Viccaro pleaded guilty to the charge of escape, and the trial

court sentenced him to a three-year term of imprisonment.

{¶3} Two years and three months after his sentence on the charge of escape,

Viccaro filed a motion to withdraw his guilty plea, which the trial court denied.

Viccaro appeals, raising the following assignment of error:

The trial court abused its discretion and/or committed plain error when it denied Mr. Viccaro’s motion to withdraw his guilty plea and to dismiss “with prejudice” his conviction for the crime of escape from a void post release control supervision. State v. Renner,

,

(2d Dist.).

{¶4} In his appeal, Viccaro claims that the trial court’s journal entry informing

him of postrelease control was not sufficient and, therefore, is void. Viccaro reasons

that because this void term of postrelease control cannot provide the basis for the charge

of escape, the trial court erred when it denied his motion to withdraw his guilty plea.

{¶5} In response to Viccaro’s arguments, the state moved to supplement the

record, filing the following documents: the entry of conviction for the underlying felony

in case number CR-450403, the transcript from the re-sentencing hearing at which the

court advised him of the imposition of postrelease control1 and the journal entry of the

resentencing. The state claims that any error on the part of the trial court was clerical

and has no bearing on Viccaro’s motion to withdraw his guilty plea.

{¶6} Pursuant to Crim.R. 32.1, a defendant who seeks to withdraw a plea of

guilty after the imposition of sentence has the burden of establishing the existence of

manifest injustice. See State v. Smith,

,

(1977);

State v. Patrick, 8th Dist. Cuyahoga No. 77644,

(Aug. 17,

2000). A postsentence motion made pursuant to Crim.R. 32.1 is addressed to the sound

discretion of the trial court and “the good faith, credibility and weight of the movant’s

assertions in support of the motion are matters to be resolved by that court.” Smith.

{¶7} Viccaro claims that manifest injustice occurred in the instant case because

1We note that although the burden of this appeal lies with Viccaro, it was the state who supplied this court with the transcript of the resentencing hearing. the trial court did not properly impose the underlying term of postrelease control. In

particular, Viccaro argues that because the trial court did not journalize the consequences

for violating postrelease control, said postrelease control is void and cannot be used to

substantiate a charge of escape. Viccaro asks this court to vacate his conviction and

sentence and remand the case to the trial court with instructions to dismiss the matter

with prejudice.

{¶8} In State v. Fischer, the Supreme Court of Ohio held that a void postrelease

control sentence “is not precluded from appellate review by principles of res judicata,

and may be reviewed at any time, on direct appeal or collateral attack.” Fischer,

,

,

, paragraph one of the syllabus. The

Supreme Court of Ohio recently applied Fischer “to every criminal conviction, including

a collateral attack on a void sentence that later results in a guilty plea to the crime of

escape.” State v. Billiter,

,

,

. We

conclude, and the state concedes, that Billiter applies to the instant case, permitting this

court to consider Viccaro’s motion to withdraw his guilty plea.

{¶9} We must now consider whether the court’s imposition of postrelease

control in 2008 is void. Viccaro argues that at the resentencing hearing, the court

imposed a term of postrelease control for five years, but failed to include the

consequences of violating postrelease control in the journal entry, and therefore, the

sentence is void. We note that while the journal entry does not include the

consequences of violating postrelease control, the trial court did inform Viccaro of the consequences at the resentencing hearing.

{¶10} The Supreme Court of Ohio requires a trial court to give notice of

postrelease control both at the sentencing hearing and by incorporating it into the

sentencing entry. State v. Jordan,

,

,

, paragraph one of the syllabus. This court follows that requirement. In State v.

Rice, 8th Dist. Cuyahoga No. 95100,

, this court found the trial court

committed reversible error by failing to state in its sentencing journal entry that an

additional term of incarceration could be imposed if the defendant violated the terms of

postrelease control.

In State v. Nicholson, 8th Dist. Cuyahoga No. 95327,

, the court’s journal entry included the language that the defendant was

required to serve a five-year period of postrelease control, but failed to include what

repercussions would follow a postrelease control violation. This court determined that

the trial court “must notify the offender, both at the sentencing hearing and in its journal

entry, that the parole board could impose a prison term if the offender violates the terms

and conditions of postrelease control.”

citing R.C. 2929.191(B)(1).

{¶11} In Nicholson and Rice, both defendants were in prison for their

underlying charges at the time of their appeals; their cases were then remanded to the

trial court to correct the sentencing entries pursuant to R.C. 2929.191. In the present

case, however, Viccaro had already served his prison term for the charges underlying the

postrelease control. “It is well settled that once the sentence for the offense that carries

postrelease control has been served, the court can no longer correct sentencing errors by resentencing.” State v. Douse, 8th Dist. Cuyahoga No. 98249,

, citing

State v. Bezak,

,

,

. Therefore, any

error in Viccaro’s sentencing may not be corrected by resentencing.

{¶12} In State v. Cash, 8th Dist. Cuyahoga No. 95158,

, this

court stated that “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.” In

Cash, the court sentenced the defendant to a term of imprisonment that included

postrelease control. Following his release from prison, the defendant failed to comply

with the terms of postrelease control and the state charged him with escape. The

defendant pleaded guilty and was sentenced to prison. The trial court later granted

Cash’s motion to withdraw his plea and dismissed the indictment. The trial court stated

that the defendant’s escape indictment was premised on an invalid postrelease control

that does not comply with the statutory mandates regarding the imposition of postrelease

control.

{¶13} This court affirmed the trial court’s ruling, holding that the trial court

failed to notify the defendant of the specific terms of postrelease control. In particular,

this court found that the trial court’s failure to properly advise the defendant of

postrelease control “renders his sentence void, i.e., as if it never occurred.”

In

affirming the dismissal of the escape charge, this court relied on Hernandez v. Kelly,

,

,

, wherein the Ohio Supreme Court

stated 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

sentences.”

Based on that case, this court held that

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.

{¶14} We cannot ignore the similarities between Cash and the instant case.

Here, the court failed to include the consequences of violating Viccaro’s five-year period

of postrelease control in its journal entry. Based on this court’s precedent, this

deficiency renders the sentence void. Rice, 8th Dist. Cuyahoga No. 95100,

; Nicholson, 8th Dist. Cuyahoga No. 95327,

.

Additionally, because Viccaro completed his sentence of imprisonment on the charges

underlying his postrelease control sanctions, the sentencing entry may not be corrected.

Douse, 8th Dist. Cuyahoga No. 98249,

. Therefore, no postrelease

control sanctions were lawfully included in a valid sentence, and the Adult Parole

Authority lacked jurisdiction to impose postrelease control on Viccaro. Further,

Viccaro cannot be convicted of escape where there is no valid form of detention.

Therefore, we find the trial court erred in denying Viccaro’s motion to withdraw his

guilty plea and motion to dismiss his charge of escape.

{¶15} Viccaro’s sole assignment of error is sustained.

{¶16} The judgment of the trial court is reversed, and the matter is remanded

with instructions to dismiss the charge of escape, release Viccaro from prison and from

further postrelease control supervision. It is ordered that appellant recover of said 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

lower 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.

EILEEN A. GALLAGHER, PRESIDING JUDGE

TIM McCORMACK, J., and EILEEN T. GALLAGHER, J., CONCUR