[Cite as State v. Murphy,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : TERRY L. MURPHY : Case No. CT2013-0028 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2013-0059

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: January 29, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT SMITH KENNETH R. SPIERT 27 North Fifth Street 250 East Broad Street, 14th Floor Zanesville, OH 43701 Columbus, OH 43215 Muskingum County, Case No. CT2013-0028 2

Farmer, J.

{¶1} On July 31, 2007, the Muskingum County Common Pleas Court

sentenced appellant, Terry Murphy, to an aggregate term of four years in prison, and

notified appellant that post-release control was optional up to three years (Case No.

CR2007-0070).

{¶2} On May 1, 2013, the trial court sub judice sentenced appellant to an

aggregate term of eight years in prison (Case No. CR2013-0059). The trial court further

found appellant had violated the terms of his post-release control in Case No. CR2007-

0070. The trial court terminated appellant's post-release control in said case and

ordered him to serve the remainder of his post-release control consecutively to the eight

year sentence.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶4} "THE TRIAL COURT ERRED IN IMPOSING A JUDICIAL SANCTION

UNDER OHIO REVISED CODE SECTION 2929.141(A)(1) BASED UPON A VOID

ENTRY IMPOSING POSTRELEASE CONTROL. THIS ERROR VIOLATES MR.

MURPHY'S RIGHTS TO DUE PROCESS AND EQUAL PROTECTION UNDER THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE I, SECTIONS 2 AND 16 OF THE OHIO

CONSTITUTION." Muskingum County, Case No. CT2013-0028 3

II

{¶5} "THE TRIAL COURT ERRED WHEN IMPOSING A SANCTION UNDER

OHIO REVISED CODE SECTION 2929.141(A)(1) BY FAILING TO STATE THE

NUMBER OF DAYS THAT MR. MURPHY IS REQUIRED TO SERVE ON THAT

SENTENCE. THIS ERROR VIOLATES MR. MURPHY'S RIGHTS TO DUE PROCESS

UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."

I

{¶6} Appellant argues the trial court erred in ordering him to serve the

remainder of his post-release control from Case No. CR2007-0070, as the order of post-

release control was void. We agree.

{¶7} In Case No. CR2007-0700, appellant was notified that post-release control

was optional up to three years, when in fact it was a mandatory three year term;

therefore the order of post-release control was void and cannot now be used against

him. The state concedes this argument in its brief at 2-3, on the applicability of State v.

Billiter,

,

, ¶ 12:

Here, the trial court failed to sentence Billiter to a correct term of

postrelease control. Accordingly, his sentence was void. Fischer [

,

], paragraph one of the syllabus. The trial

court's incorrect sentence for postrelease control in 1998 was insufficient

to confer authority upon the Adult Parole Authority to impose up to three

years of postrelease control on Billiter. Jordan,

, 2004- Muskingum County, Case No. CT2013-0028 4

Ohio-6085,

, ¶ 17. Although the Adult Parole Authority

actually did place Billiter under supervision, see R.C. 2921.01(E), and

Billiter did violate the terms of that postrelease control in violation of R.C.

2921.34(A)(1), Billiter's escape conviction was based on an invalid

sentence. Accordingly, the trial court was without jurisdiction to convict

him on the escape charge.

{¶8} Assignment of Error I is granted.

II

{¶9} Based upon our decision in Assignment of Error I, we find this assignment

to be moot. Muskingum County, Case No. CT2013-0028 5

{¶10} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby reversed, and the matter is remanded to said court for resentencing.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.

SGF/sg 116