[Cite as State v. Huber,

.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2013 CA 16

v. : T.C. NO. 05CR458

JOSEPH HUBER, JR. : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 16th day of May , 2014.

..........

LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee

CARLO C. McGINNIS, Atty. Reg. No. 0019540, 130 W. Second Street, Suite 800, Dayton, Ohio 45402 Attorney for Defendant-Appellant

..........

FROELICH, P.J.

{¶ 1} Joseph Huber appeals from an Amended Judgment Entry of 2

Conviction entered by the Clark County Court of Common Pleas for the purpose of

correcting the imposition of post-release control. For the following reasons, the trial court’s

amended judgment entry will be vacated.

I.

{¶ 2} On March 29, 2006, Huber pled guilty to robbery, a second-degree felony,

and two felonies of the fifth degree, possession of criminal tools and breaking and entering.

The trial court found him guilty and imposed an agreed sentence totaling four years in

prison. The court also ordered him to pay $7,000 in restitution. At sentencing, the court

informed Huber that, upon being released from prison, he would “be required to be placed

on three years of post-release control with the Adult Parole Authority” and of the

consequences for failure to comply with post-release control. The court’s judgment entry of

conviction stated, however, that “[t]he Court has informed defendant that post release

control is mandatory in this case up to a maximum of three years, as well as the

consequences for violating conditions of post release control imposed by the Parole Board.”

(Emphasis added.)

{¶ 3} On June 27, 2011, Huber filed a motion to “vacate his void sentence and

judgment,” arguing that post-release control was not properly imposed in the court’s

judgment entry of conviction and that the trial court failed to separately impose post-release

control for the fifth-degree felonies. Huber argued that resentencing generally would be

required but, because he had already completed his four-year sentence, the court could not

resentence him. Huber asked the trial court to vacate his conviction and sentence in this

case. [Cite as State v. Huber,

.] {¶ 4} On January 22, 2013, the trial court overruled Huber’s motion, which it

construed as a petition for post-conviction relief. The court acknowledged that the

conviction entry “did improperly state that the mandatory term of post release control in this

case would be ‘up to’ three years.” It concluded, however, that the proper procedure was to

file an amended entry to correctly show imposition of three years of mandatory post-release

control. The trial court filed an amended judgment entry of conviction on the same day.

{¶ 5} Huber appeals from the trial court’s amended judgment entry of conviction.

He raises three assignments of error, which we will address together.

II.

{¶ 6} Huber’s assignments of error state:

The trial court failed to properly impose post release control in its

[original] sentence.

The trial court erred in denying defendant’s motion to vacate void

sentence and judgment.

The trial court erred in filing its amended judgment entry of

conviction as it constituted successive punishment without due process in

violation of the Fifth, Eighth and Fourteenth Amendments [to] the United

States Constitution and Article I and II, Section 10 and 28 of the Ohio

Constitution.

{¶ 7} “Post-release control” involves a period of supervision by the Adult Parole

Authority after an offender’s release from prison that includes one or more post-release

control sanctions imposed under R.C. 2967.28. R.C. 2967.01(N). Post-release control is

mandatory for some offenses and is imposed at the discretion of the Parole Board for others. 4

R.C. 2967.28(B); State v. Blackshear, 2d Dist. Montgomery No. 24302,

. Language that appears to allow the parole board discretion to impose less than the

statutorily-mandated term of post-release control does not conform to the statutory

mandates. See, e.g., State v. Fleming,

,

, ¶ 24 (2d Dist.)

(statement that post-release control was mandatory “up to a maximum of five years” did not

properly impose the mandatory five-year term of post-release control); State v. Pointer,

,

,

(2d Dist.) (statement that the

defendant “will/may serve a period of post-release control under the supervision of the

parole board” did not impose mandatory post-release control).

{¶ 8} The Supreme Court of Ohio has held that when a judge fails to impose the

required post-release control as part of a defendant’s sentence, “that part of the sentence is

void and must be set aside.” (Emphasis in original.) State v. Fischer,

,

,

, ¶ 26; State v. Holdcroft,

,

,

. The improper post-release control sanction “may be

reviewed at any time, on direct appeal or by collateral attack,” Fischer at ¶ 27, but “res

judicata still applies to other aspects of the merits of a conviction, including the

determination of guilt and the lawful elements of the ensuing sentence,” id. at ¶ 40.

{¶ 9} Once a defendant has served the prison term for an offense for which

post-release control applies, the trial court does not have the authority to resentence a

defendant for the purpose of adding a term of post-release control as a sanction for that

particular offense. Holdcroft at paragraph three of the syllabus. This is true even if the

defendant remains incarcerated on other charges. Id. at ¶ 18. In addition, when 5

post-release control was properly imposed at sentencing but the trial court’s judgment entry

failed to properly include post-release control, the trial court’s ability to correct its judgment

through a nunc pro tunc entry ceases when the defendant completes his prison sentence.

State v. Qualls,

,

,

, ¶ 24 (“when the

notification of post-release control was properly given at the sentencing hearing, * * * [t]he

original sentencing entry can be corrected to reflect what actually took place at the

sentencing hearing, through a nunc pro tunc entry, as long as the correction is accomplished

prior to the defendant’s completion of his prison term.”).

{¶ 10} Here, Huber was subject to a mandatory three-year term of post-release

control for the robbery. R.C. 2967.28(B). The fifth-degree felonies were subject to

post-release control of up to three years, at the discretion of the Parole Board. R.C.

2967.28(C). The trial court’s original judgment entry of conviction stated that Huber was

informed that post-release control was “mandatory in this case up to a maximum of three

years.” As the trial court later recognized, the court did not properly impose post-release

control in its original judgment entry.

{¶ 11} Huber moved to vacate his sentence and conviction in 2011, after he had

completely served the prison terms for all of the offenses in this case. Because Huber was

no longer incarcerated on any of the offenses in this case, the trial court lacked the authority

to resentence Huber and to file an amended judgment entry for the purpose of correctly

imposing post-release control for any offense.

{¶ 12} Huber’s first and third assignments of error are sustained.

{¶ 13} Huber’s second assignment of error argues that his entire judgment entry of 6

conviction is void and he should be treated as though he were never convicted of these

offenses. Huber did not appeal from his convictions for robbery, possession of criminal

tools, and breaking and entering. Under Fischer, the trial court’s improper imposition of

post-release control did not affect Huber’s guilty pleas and the non-void portions of his

sentence, such as the prison terms and order of restitution, and res judicata precludes Huber

from challenging those provisions at this time. Huber’s second assignment of error is

overruled.

III.

{¶ 14} Because Huber completely served his prison sentence before the trial court

filed its amended judgment entry of conviction, the trial court’s amended judgment entry

will be vacated.

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FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Lisa M. Fannin Carlo C. McGinnis Hon. Richard J. O’Neill