[Cite as State v. Wells,

.] STATE OF OHIO, JEFFERSON COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 14 JE 5 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) JOHN WELLS ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 97 CR 163

JUDGMENT: Vacated in Part. Reversed and Remanded.

APPEARANCES:

For Plaintiff-Appellee: Atty. Jane M. Hanlin Prosecuting Attorney Jefferson County Justice Center 16001 State Route 7 Steubenville, Ohio 43952

For Defendant-Appellant: John Wells, Pro se #344-727 Marion Correctional Institution P. O. Box 57 940 Marion-Williamsport Road Marion, Ohio 43302

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: December 12, 2014 [Cite as State v. Wells,

.] WAITE, J.

{¶1} Pro se Appellant John Wells alleges, via a postconviction motion, that

his 1997 sentence is partially void due to the failure of the trial court to properly

impose postrelease control as part of his sentence imposed for five counts of rape of

a child under 13 years old. The charges stemmed from the repeated rape and

molestation of his three minor daughters. He is serving a life sentence. He contends

that the trial court erred in imposing postrelease control. Appellant is correct, and the

matter is remanded for a new sentencing hearing limited to the single issue of

postrelease control.

Background

{¶2} On October 10, 1997, Appellant was indicted on five counts of rape of a

child under the age of thirteen, in violation of R.C. 2907.02(A)(1)(b). Two of the

counts also contained an allegation that Appellant used force or threat of force to

accomplish the rape. The victims were his three daughters.

{¶3} A jury trial commenced on December 16, 1997 and the following day

the jury returned verdicts of guilty on all counts. On December 24, 1997, Appellant

was sentenced to two life sentences and three ten-year terms of imprisonment, all to

be served consecutively. In addition, the trial court classified Appellant as a sexually

violent predator. He filed a direct appeal, and the conviction and sentence were

affirmed. State v. Wells, 7th Dist. No. 98-JE-3,

(Mar. 22, 2000).

{¶4} On January 22, 2014, Appellant filed a document he titled “Motion to

Hold a Hearing and to Correct the Illegal and Void Postrelease Control.” On -2-

February 5, 2014, the court overruled the motion. This timely pro se appeal was filed

on March 5, 2014. The state has not filed an Appellee's brief in this matter.

ASSIGNMENT OF ERROR

The Postrelease Control Imposed by the Trial Court is Illegal and Void

as it was Imposed in a Manner Contrary to Law, Requiring the Trial

Court to Vacate the Void and Illegal Postrelease Control, and to Hold a

Hearing to Correct the Void a [sic] Illegal Postrelease Control.

{¶5} Appellant argues that the court erred in its notice of postrelease control

at sentencing. Appellant argues that errors occurred both at the sentencing hearing

and in the sentencing judgment entry. Appellant cites State v. Fischer,

,

,

, for the proposition that an error in

imposing postrelease control can be raised at any time, even on collateral attack, and

is not subject to res judicata. Appellant is correct.

{¶6} In Fischer, the Ohio Supreme Court held that “[a] sentence that does

not include the statutorily mandated term of postrelease control is void, is not

precluded from appellate review by principles of res judicata, and may be reviewed at

any time, on direct appeal or by collateral attack.” Fischer at paragraph one of the

syllabus. The Fischer Court determined that only that part of the sentence dealing

with postrelease control should be voided: the remaining aspects of the conviction

and sentence should not be disturbed. Id. at ¶27. -3-

{¶7} R.C. 2929.19(B) requires the sentencing judge to give notice of

postrelease control to a defendant sentenced on a first degree felony. The version of

R.C. 2929.19(B)(3)(c) in effect when Appellant was sentenced stated:

(3) Subject to division (B)(4) of this section, if the sentencing court

determines at the sentencing hearing that a prison term is necessary or

required, the court shall do all of the following:

***

(c) Subject to division (B)(4) of this section, if the offender is being

sentenced for a felony of the first degree * * * notify the offender that a

period of post-release control pursuant to section 2967.28 of the

Revised Code shall be imposed following the offender's release from

prison and that for a violation of a post-release control sanction

imposed upon the offender the parole board may impose a residential

sanction that includes a new prison term of up to nine months[.]

(Emphasis added.)

{¶8} Appellant was sentenced on five first degree felonies. There were three

ten-year prison terms and two life terms. The sentencing entry does not state that

the prison terms consisted of life without parole. Notice of postrelease control is

required even for life sentences if the possibility of parole exists, or if any one of the

sentences in a multi-count sentencing entry is a definite sentence for a specific term

of years. State v. Roseberry, 7th Dist. No. 11 BE 21,

. -4-

{¶9} The December 24, 1997, sentencing entry states:

Upon completion of the prison term, the offender shall be subject to

such further period of supervision being under post-release control as

the parole board may determine pursuant to law. As authorized by law,

the Adult Parole Authority may increase or reduce restrictions imposed

by the parole board. If the Defendant violates the terms of post-release

control, the parole board may return the offender to prison for a

maximum period of nine months for each violation, but the total period

of additional prison time imposed by the parole board for violations

while under post-release control shall not exceed one-half of the

Defendant's stated prison term. If the Defendant is convicted of a

felony committed while under post-release control, the Court having

jurisdiction over the new felony may return the Defendant to prison

under this case for an additional period of time as authorized by law

and any prison term for the new felony may be served consecutively

with the extension of prison time in this case. If the Court imposes

additional prison time in this case the Defendant shall be credited with

any additional prison time imposed by the parole board for the same

violation.

{¶10} The notice of postrelease control provided in the judgment entry

conforms to the requirements of R.C. 2929.19(B)(3)(c) as it existed in December

1997. It stated that a period of postrelease control shall be imposed pursuant to R.C. -5-

2967.28, and for a violation of postrelease control a new sanction may be imposed,

including a residential sanction. Most of this information, though, was not delivered

to Appellant at the sentencing hearing. In Ohio, the notices regarding postrelease

control must be delivered directly to the defendant either at the plea hearing or at the

sentencing hearing, as well as in the sentencing judgment entry. State v. Qualls,

,

,

, ¶18; Woods v. Telb,

,

(2000), paragraph two of the syllabus; State v. Mock,

,

,

(7th Dist.). Failure to deliver the

R.C. 2929.19 notice of postrelease control at the plea or sentencing hearings

requires a remand for resentencing, but resentencing only on the specific issue of

postrelease control. Fisher at ¶36.

{¶11} Additional postrelease control notice requirements that apply when a

prison term is imposed are contained in R.C. 2967.28. The version of R.C.

2967.28(B) in effect when Appellant was sentenced stated:

(B) Each sentence to a prison term for a felony of the first degree * * *

shall include a requirement that the offender be subject to a period of

post-release control imposed by the parole board after the offender's

release from imprisonment. Unless reduced by the parole board

pursuant to division (D) of this section when authorized under that

division, a period of post-release control required by this division for an

offender shall be of one of the following periods: -6-

(1) For a felony of the first degree or for a felony sex offense, five

years[.] (Emphasis added.)

{¶12} The court's notice in the sentencing entry correctly states that Appellant

shall be subject to postrelease control by the parole board, but fails to state that the

length of postrelease control shall be five years. The Supreme Court has determined

that the notice was insufficient without mentioning the length of postrelease control.

State v. Bloomer,

,

,

.

Further, the trial court stated at the sentencing hearing that postrelease control would

be “at least” five years, rather than exactly five years, unless reduced by the parole

board. (12/24/97 Tr., p. 10.) Appellant cites no cases that find error with the words

“at least” in this context. One court has held that the use of the phrase “at least” is

error but does not rise to reversible error because it still serves the purpose of putting

the defendant on notice that, at minimum, there will be five years of postrelease

control. State v. Tucker, 8th Dist. No. 95289,

. Nevertheless, R.C.

2967.28(B) states that there “shall be” five years of postrelease control rather than “at

least” five years, and as the state has failed entirely to respond in this matter, use of

the phrase “at least” in the context of this appeal is error and should be corrected on

remand.

{¶13} Appellant argues that the trial court also erred by stating that, if the

violation of postrelease control is a felony, he may be prosecuted for a new offense

rather than saying he shall be prosecuted for a new offense. (12/24/97 Tr., p. 10.)

The version of R.C. 2967.28(F)(4) in effect when Appellant was sentenced stated: “A -7-

releasee who has violated any post-release control sanction or the mandatory

condition described in division (A) of section 2967.131 of the Revised Code imposed

upon the releasee by committing a felony may be prosecuted for the new felony * * *.”

(Emphasis added.) The trial court tracked the language of the statute and committed

no error here.

{¶14} Appellant raises other errors unrelated to his arguments on postrelease

control, but the Ohio Supreme Court has made it very clear that no other issues may

be raised when making a collateral attack on a sentence based on an error in

imposing postrelease control. Fischer at ¶31. This is because any other alleged

errors raised by Appellant regarding his sentence could have been raised in his

original appeal and are now res judicata, State v. Wells, 7th Dist. No. 98-JE-3,

(Mar. 22, 2000).

Conclusion

{¶15} The trial court failed to give Appellant the proper notices regarding

postrelease control, and that portion of the sentence dealing with postrelease control

is hereby vacated and the case remanded for a new hearing solely on the issue of

postrelease control.

Donofrio, J., concurs.

Vukovich, J., concurs.