[Cite as State v. Hendricks, 2017-Ohio-259.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. Sheila G. Farmer, P.J. 

 Plaintiff-Appellee : Hon. William B. Hoffman, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : Case No. CT2016-0010 

 : 

CHRISTOPHER HENDRICKS : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Muskingum County 

Court of Common Pleas, Case No. CR 

2015-0161 

JUDGMENT: AFFIRMED IN PART, REVERSED IN 

PART, AND REMANDED FOR 

RESENTENCING 

DATE OF JUDGMENT ENTRY: January 18, 2017 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

D. MICHAEL HADDOX RICHARD L. CROSBY IIII 

MUSKINGUM CO. PROSECUTOR RENDIGS, FRY, KIELY & DENNIS LLP 

GERALD V. ANDERSON II 600 Vine Street, Ste. 2650 

27 North Fifth St., P.O. Box 189 Cincinnati, OH 45202 

Zanesville, OH 43702-0189 

 
Muskingum County, Case No. CT2016-

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Delaney, J. 

{¶1} Appellant Christopher Hendricks appeals from the January 13, 2016 Entry 

of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶2} This case arose when appellant and co-defendant Randall Cremeans 

entered a house shared by Brent Mayle and Tameka Alexander.1 The defendants sought 

Mayle and items of appellant’s that had allegedly been stolen. Present were Alexander, 

several adult friends, and her two minor children. The two defendants drew firearms and 

threatened Alexander into calling Mayle and telling him to come home. Appellant put his 

gun to Alexander’s pregnant stomach and to her two minor children to convince her to 

reveal Mayle’s whereabouts. Appellant threatened Mayle that if he didn’t come home, he 

would find “seven stinking bodies.” The adult witnesses were tied up and their cell phones 

seized. Appellant wanted to take the victims with them as they left the scene, but 

Cremeans told him there wasn’t enough room and suggested they take the victims’ I.D.s 

instead to identify “snitches” later. 

{¶3} Appellant was charged by indictment as follows: Count I, aggravated 

burglary pursuant to R.C. 2911.11(A)(2), a felony of the first degree; Counts II through V, 

kidnapping pursuant to R.C. 2905.01(A)(2), all felonies of the first degree; Counts VI 

through VIII, kidnapping pursuant to R.C. 2905.01(A)(3), all felonies of the first degree; 

Counts IX through XIII, aggravated robbery pursuant to R.C. 2911.01(A)(1), all felonies 

of the first degree; and Count XIV, having weapons while under disability pursuant to R.C. 

 

1 The co-defendant’s direct appeal from his convictions and sentence is State v. 

Cremeans, 5th Dist. Muskingum No. CT2015–0062, 2016-Ohio-7930.
Muskingum County, Case No. CT2016-

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2923.13(A)(2), a felony of the third degree. Counts I through XIII are accompanied by 

firearm specifications pursuant to R.C. 2941.145. 

{¶4} Appellant entered pleas of not guilty and moved for a change of venue. The 

motion was later withdrawn. 

{¶5} On November 16, 2015, appellant appeared before the trial court and 

changed his pleas of not guilty to ones of guilty as charged in the indictment. The trial 

court deferred sentencing pending a pre-sentence investigation. On January 12, 2016, 

appellant was sentenced to an aggregate prison term of 30 years. 

{¶6} Appellant now appeals from the trial court’s sentencing entry of January 13, 

2016. 

{¶7} Appellant raises six assignments of error: 

ASSIGNMENTS OF ERROR 

{¶8} “I. THE SENTENCE IS DISPROPORTIONATE/INCONSISTENT 

CONTRARY TO R.C. 2929.11(B).” 

{¶9} “II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF 

COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN 

HIS ATTORNEY FAILED TO FILE A MOTION TO SUPPRESS THE ALLEGED VICTIM’S 

IDENTIFICATION AS THE STATE CLEARLY VIOLATED THE MINIMUM 

REQUIREMENTS OF A PHOTO IDENTIFICATION SET FORTH IN R.C. 2933.03. 

{¶10} “III. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF 

COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN 
Muskingum County, Case No. CT2016-

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HIS ATTORNEY FAILED TO ADVISE HIM OF THE MINIMUM AND MAXIMUM 

PENALTIES HE FACED UPON PLEADING GUILTY.” 

{¶11} “IV. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND 

FEDERAL CONSTITUTIONAL RIGHTS AND CRIM.R. 11 BY FAILING TO ENSURE 

THAT HE UNDERSTOOD THE MAXIMUM PENALTIES HE FACED UPON PLEADING 

GUILTY.” 

{¶12} “V. APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE 

COURT DID NOT PROPERLY ADVISE DEFENDANT CONCERNING COMPULSORY 

PROCESS.” 

{¶13} “VI. APPELLANT’S SENTENCE SHOULD BE VOIDED AS THE COURT 

FAILED TO INCLUDE THE DETAILS OF POST RELEASE CONTROL INTO THE 

SENTENCING ENTRY AS REQUIRED BY R.C. 2929.19(B)(3).” 

ANALYSIS 

I.

{¶14} In his first assignment of error, appellant argues his sentence is 

disproportionate when compared to that of his co-defendant. We disagree. 

{¶15} Appellant summarily argues his sentence is disproportionate to the severity 

of his conduct when compared with the conduct of Cremeans.2 We note both defendants 

claimed the other was more culpable; in the instant case, despite appellant’s disavowals 

of terrorizing the victims, he pled guilty to the offenses. Appellee’s recitation of the facts 

established appellant was at least as culpable as Cremeans. A felony sentence should 

 

2 Appellant’s co-defendant also received an aggregate term of 30 years following his 

convictions after trial by jury. Cremeans, supra, 2016-Ohio-7930, ¶ 29. 
Muskingum County, Case No. CT2016-

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be proportionate to the severity of the offense committed so as not to “shock the sense 

of justice in the community.” State v. Chaffin, 30 Ohio St.2d 13, 17, 282 N.E.2d 46 (1972); 

R.C. 2929.11(B). A defendant alleging disproportionality in felony sentencing has the 

burden of producing evidence to “indicate that his sentence is directly disproportionate to 

sentences given to other offenders with similar records who have committed these 

offenses * * *.” State v. Ewert, 5th Dist. Muskingum No. CT2012–0002, 2012-Ohio-2671, 

2012 WL 2196326, ¶ 33, citing State v. Breeden, 8th Dist. Cuyahoga No. 84663, 2005-

Ohio-510, 2005 WL 315370, ¶ 81. 

{¶16} Appellant has not provided any evidence his sentence is constitutionally 

disproportionate. Instead, he argues no one was harmed and the victims lied. We find the 

conduct alleged here, combined with appellant's significant criminal record, support the 

trial court's sentence. We reject appellant’s comparison of the instant case with State v. 

Moore, in which one co-defendant pled guilty to three charged offenses and was 

sentenced to 30 years, when the second co-defendant went to trial, was convicted, and 

was sentenced to consecutive terms totaling 27 years. 8th Dist. Cuyahoga No. 99788, 

2014-Ohio-5135, 24 N.E.3d 1197, cause dismissed, 141 Ohio St.3d 1433, 2015-Ohio168, 23 N.E.3d 1178, and appeal not allowed, 142 Ohio St.3d 1475, 2015-Ohio-2104, 31 

N.E.3d 654. In Moore, the appellate court determined the actions of the former were 

“more egregious" than the actions of the latter, “so the large disparity in the sentences 

raise[d] questions for appellate review.” Id. at ¶ 9. In the instant case, the record does 

not support appellant’s assertion that he is less culpable than Cremeans. 
Muskingum County, Case No. CT2016-

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{¶17} Appellant also ignores a fact significant to the trial court at sentencing: 

appellant committed these crimes while awaiting sentencing upon a felony conviction of 

aggravated assault in Franklin County. 

{¶18} The trial court also referred to the P.S.I. repeatedly in sentencing appellant 

but appellant did not include the P.S.I. in the record. In State v. Untied, 5th Dist. 

Muskingum No. CT97–0018, 1998 WL 401768, *8 (Mar. 5, 1998), we noted appellate 

review contemplates that the entire record be presented and if portions of the transcript 

necessary to resolve issues are not included, we must presume regularity in the trial court 

proceedings and affirm. The P.S.I. report could have been submitted under seal for our 

review. Id. Absent the cited information and considering “the trial court's findings on the 

record, we cannot say appellant's sentence was against the manifest weight of the 

evidence or ‘contrary to law.’” State v. Henderson, 5th Dist. Stark No. 2004–CA–00215, 

2005-Ohio-1644, 2005 WL 774039, ¶ 48, citing State v. Wallace, 5th Dist. Delaware No. 

03–CA–A–07–043, 2004-Ohio-1694, 2004 WL 670684 and State v. Mills, 5th Dist. 

Ashland No. 03–COA–001, 2003-Ohio-5083, 2003 WL 22208740. 

{¶19} Appellant’s first assignment of error is overruled. 

II., III. 

{¶20} Appellant’s second and third assignments of error are related and will be 

considered together. Appellant argues he was denied effective assistance of trial counsel 

because counsel should have filed a motion to suppress and failed to advise him of the 

minimum and maximum penalties. We disagree. 

{¶21} To succeed on a claim of ineffectiveness, a defendant must satisfy a twoprong test. Initially, a defendant must show that trial counsel acted incompetently. See, 
Muskingum County, Case No. CT2016-

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Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, 

“a court must indulge a strong presumption that counsel's conduct falls within the wide 

range of reasonable professional assistance; that is, the defendant must overcome the 

presumption that, under the circumstances, the challenged action ‘might be considered 

sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 

(1955). 

{¶22} “There are countless ways to provide effective assistance in any given case. 

Even the best criminal defense attorneys would not defend a particular client in the same 

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the 

wide range of professionally competent assistance.” Id. at 690. 

{¶23} Even if a defendant shows that counsel was incompetent, the defendant 

must then satisfy the second prong of the Strickland test. Under this “actual prejudice” 

prong, the defendant must show that “there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. 

{¶24} First, appellant argues trial counsel was ineffective in failing to file a motion 

to suppress the photo line-up identification of appellant by the victims, arguing the photo 

line-up did not comply with R.C. 2933.83. Failure to file a suppression motion does not 

per se constitute ineffective assistance of counsel. State v. Boyd, 5th Dist. Richland No. 

12CA23, 2013–Ohio–1333, ¶ 24, citing State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–

Ohio–0448. Counsel can only be found ineffective for failing to file a motion to suppress 

if, based on the record, the motion would have been granted. State v. Lavelle, 5th Dist. 

No. 07 CA 130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–CA–88, 
Muskingum County, Case No. CT2016-

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2007–Ohio–3009, at ¶ 86. Furthermore, “[w]here the record contains no evidence which 

would justify the filing of a motion to suppress, the appellant has not met his burden of 

proving that his attorney violated an essential duty by failing to file the motion.” State v. 

Drummond, 111 Ohio St.3d 14, 41, 2006–Ohio–5084, 854 N.E.2d 1038, quoting State v. 

Gibson, 69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th Dist.1980). See also, State v. Suiste,

5th Dist. No. 2007 CA 00252, 2008–Ohio–5012. 

{¶25} To satisfy the prejudice prong of the Strickland test, a defendant must 

additionally demonstrate that there was a reasonable probability that the motion to 

suppress would have been granted. See, e.g., State v. Fair, 2nd Dist. No. 24120, 2011–

Ohio–3330, ¶ 27. See also Kimmelman at 390–391. Trial counsel's decision not to file a 

motion to suppress may be a matter of trial strategy, including counsel's reasonable 

assessment of whether such a motion is likely to succeed and recognition that filing a 

motion to suppress has risks. Madrigal, 87 Ohio St.3d at 389, 721 N.E.2d 52. 

{¶26} In the instant case, based on the evidence in the record, appellant cannot 

show trial counsel's failure to file a motion to suppress any photo line-up constitutes a 

deficiency. This case was resolved with a guilty plea and the record contains no facts in 

support of appellant’s argument here. We are unable to find any reference in the record 

to a photo line-up or any suggestion of irregularity, and appellant does not support his 

argument with reference to the record. App.R. 16(A)(7). 

{¶27} We also must presume a properly licensed attorney executes his or her 

duties in an ethical and competent manner. See State v. Smith, 17 Ohio St.3d 98, 100, 

477 N.E.2d 1128 (1985). Under the circumstances presented, we are not inclined to 

overcome this presumption with the limited information in the appellate record before us. 
Muskingum County, Case No. CT2016-

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See, State v. Sanders, 5th Dist. Ashland No. 15-COA-33, 2016-Ohio-7204, ---N.E.3d---, 

¶ 34. 

{¶28} Second, appellant argues he received ineffective assistance of defense trial 

counsel because he was not “properly advised of the minimum and maximum potential 

criminal sanctions which could be imposed as a result of his guilty plea.” This argument 

apparently rests upon facts outside the record. Appellant argues he expressed “extreme 

confusion” at sentencing and infers he was not properly advised of the potential 

sentences for his convictions. Appellant does not direct us to any evidence of “extreme 

confusion” in the record, and we note that the trial court advised appellant of the potential 

minimum and maximum penalties at the change-of-plea hearing. Appellant summarily 

concludes counsel was ineffective in failing to fully advise him of the consequences of his 

plea, but the record does not support the argument. 

{¶29} His inference of ineffective assistance premised upon counsel’s alleged 

failure to properly advise him relies upon facts outside the record. See, State v. Coles, 

5th Dist. Delaware No. 15CAA010001, 2015-Ohio-4159. A claim requiring proof that 

exists outside of the trial record cannot appropriately be considered on a direct appeal. 

State v. Hartman, 93 Ohio St.3d 274, 299, 754 N.E.2d 1150 (2001) (if establishing 

ineffective assistance of counsel requires proof outside the record, then such claim is not 

appropriately considered on direct appeal). We conclude appellant's argument is more 

appropriate for review in post-conviction proceedings than on direct appeal because the 

facts in support are outside the record before us. See, State v. Lambert, 5th Dist. Richland 

No. 97–CA–34–2, 1999 WL 173966, *2 (Feb. 17, 1999); State v. Hamlett, 5th Dist. 

Richland No. 03 CA 34, 2004–Ohio–38, ¶ 11; State v. Lawless, 5th Dist. Muskingum No. 
Muskingum County, Case No. CT2016-

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CT2000–0037, 2002–Ohio–3686, 2002 WL 1585846, *7, citing State v. Cooperrider, 4 

Ohio St.3d 226, 228, 448 N.E.2d 452 (1983). Post-conviction relief, rather than a direct 

appeal, is a means by which a defendant may bring claims of constitutional violations 

based upon matters outside the record. State v. Kreischer, 5th Dist. Perry No. 01–CA–

04, 2002–Ohio–357, 2002 WL 106683, *3, citing State v. Perry, 10 Ohio St.2d 175, 226 

N.E.2d 104 (1967), paragraphs four and nine of the syllabus. 

{¶30} Appellant has not demonstrated ineffective assistance of counsel. His 

second and third assignments of error are overruled. 

IV. 

{¶31} In his fourth assignment of error, appellant argues the trial court improperly 

advised him of the maximum potential penalties for his convictions and of the possibility 

of consecutive sentences. We disagree. 

{¶32} Again, appellant points to no evidence in the record in support of his 

argument that the trial court’s advisements were in error or insufficient. Instead, he points 

to his own statement at sentencing: 

 [APPELLANT:] * * * *. I pled guilty because I didn’t want to 

go down for 120 years. That was my understanding, if I took it to 

trial, I would get 120 years. * * * *. 

 (T. Sentencing, 8.) 

{¶33} Appellant suggests the trial court did not comply with Crim.R. 11(C)(2) in 

accepting his plea. That section details the trial court's duty in a felony plea hearing to 

address the defendant personally, to convey certain information to such defendant, and 

prohibits acceptance of a guilty plea or no contest without performing these duties. State 
Muskingum County, Case No. CT2016-

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v. Holmes, 5th Dist. Fairfield No. 09 CA 70, 2010–Ohio–428, ¶ 10. Crim.R. 11(C)(2)(a) 

states the trial court must determine “ * * * that the defendant is making the plea 

voluntarily, with the understanding of the nature of the charges and of the maximum 

penalty involved, and if applicable, that the defendant is not eligible for probation or for 

the imposition of community control sanctions at the sentencing hearing.” The Rule 

requires guilty pleas to be made knowingly, intelligently and voluntarily. Although literal 

compliance with Crim. R. 11 is preferred, the trial court need only “substantially comply” 

with the rule when dealing with the non-constitutional elements of Crim.R. 11(C). State 

v. Dunham, 5th Dist. No. 2011–CA–121, 2012–Ohio–2957, ¶ 11 citing State v. Ballard,

66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing State v. Stewart, 51 Ohio St.2d 86, 

364 N.E.2d 1163 (1977). In State v. Griggs, 103 Ohio St.3d 85, 2004–Ohio–4415, 814 

N.E.2d 51, at ¶ 12, the Ohio Supreme Court noted the following test for determining 

substantial compliance with Crim.R. 11: 

 Though failure to adequately inform a defendant of his 

constitutional rights would invalidate a guilty plea under a 

presumption that it was entered involuntarily and unknowingly, failure 

to comply with non constitutional rights will not invalidate a plea 

unless the defendant thereby suffered prejudice. State v. Nero, [56 

Ohio St.3d 106, 108, 564 N.E.2d 474 (1990)]. The test for prejudice 

is ‘whether the plea would have otherwise been made.’ Id.

{¶34} Under the substantial-compliance standard, we review the totality of 

circumstances surrounding appellant’s plea and determine whether he subjectively 

understood the effect of his plea. See, State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–
Muskingum County, Case No. CT2016-

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509, 881 N.E.2d 1224 at ¶ 19–20; State v. Alexander, 5th Dist. Stark No. 2012CA00115, 

2012–Ohio–4843, appeal not allowed, 134 Ohio St.3d 1485, 2013–Ohio–902, 984 N.E.2d 

29. 

{¶35} In the instant case, our review of the plea hearing reveals the trial court 

advised appellant of his constitutional rights, the potential penalties for each offense, and 

the possibility of postrelease control. Further, the trial court inquired as to the 

voluntariness of appellant's plea of guilty. In short, the trial court complied with Crim.R. 

11. Appellant does not suggest what more the trial court should have done to explain the 

potential penalties. Instead, the record demonstrates the trial court had a meaningful 

dialogue with appellant, fully apprising him of the rights he was waiving. See, State v. 

Tillman, 6th Dist. Huron No. H–02–004, 2004–Ohio–1967, ¶ 20. The court engaged 

appellant in a personal inquiry as to whether he understood the plea agreement and its 

consequences. Appellant was represented throughout the hearing. Nothing in the record 

indicates that appellant was under the influence of any drug or other substance which 

would prohibit his understanding of the court's questions. The record indicates that he 

understood the terms of the agreement and entered an intelligent, knowing and voluntary 

plea. 

{¶36} Moreover, there is no evidence in the record showing that if the court had 

advised appellant any differently appellant would not have pled guilty and instead would 

have insisted on going to trial. Thus we find no evidence appellant was prejudiced and he 

does not point to any such evidence. See, Sergent, supra, 2015–Ohio–2603 at ¶ 53. 
Muskingum County, Case No. CT2016-

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{¶37} Appellant's fourth assignment of error is found to be without merit. See, 

State v. Broyles, 5th Dist. Ashland No. 14–COA–037, 2015–Ohio–4778, ¶¶ 10–13; State 

v. Reed, 5th Dist. Ashland No. 14–COA–010, 2015–Ohio–3534, ¶ 12. 

{¶38} Appellant’s fourth assignment of error is overruled. 

V. 

{¶39} In his fifth assignment of error, appellant argues the trial court improperly 

advised him of his right to compulsory process. We disagree. 

{¶40} Appellant points to the following statement by the trial court: “You are giving 

up your right to use the power of this Court to subpoena or compel witnesses to come in 

to court and testify on your behalf?” (T. Plea, 16.) Appellant equates this statement with 

the trial court’s insufficient colloquy in In State v. Cummings, 8th Dist. Cuyahoga No. 

83759, 2004-Ohio-4470, ¶ 5. In Cummings, the trial court informed a defendant he had 

“the right to call witnesses to appear on [his] behalf” and he also had “the right to confront 

and ask questions of witnesses.” The appellate court found this explanation insufficient 

to advise the defendant of the right to compulsory process because “this implied that the 

defendant could present only witnesses he was able to secure through his own efforts.” 

State v. Parks, 8th Dist. Cuyahoga No. 86312, 2006-Ohio-1352, ¶ 16. 

{¶41} In the instant case, in the context of the entire colloquy which appellant 

omits, we find no such implication. Instead, the trial court adequately advised appellant 

of his right to compulsory process by explaining the meaning in reasonably intelligible 

terms, despite the absence of the term “compulsory process.” A trial court must strictly 

comply with those provisions of Crim. R. 11(C) which relate to the accused's waiver of 

constitutional rights, including the right to a trial by jury, the right to confront one's 
Muskingum County, Case No. CT2016-

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accusers, the privilege against self-incrimination, and the right to compulsory process of 

witnesses. However, strict compliance does not require a rote recitation of the exact 

language of Crim. R. 11(C). “Rather, the focus, upon review, is whether the record shows 

that the trial court explained or referred to the right in a manner reasonably intelligible to 

that defendant.” State v. Tripplet, 5th Dist. Stark No. 2001CA00061, unreported, 2001 

WL 1251636, *2. 

{¶42} Appellant’s fifth assignment of error is overruled. 

VI. 

{¶43} In his sixth assignment of error, appellant argues the trial court did not 

comply with R.C. 2929.19(B)(2) and failed to properly include the details of post-release 

control in the sentencing entry, therefore his sentences should be voided.3 We agree. 

{¶44} On the record at the sentencing hearing, the trial court notified appellant of 

the terms of post-release control and the consequences of violation. (T. Sentencing, 17-

18). In the sentencing entry, the trial court wrote in pertinent part: 

 * * * *. 

 The Court further notified the Defendant that “Post Release 

Control” is mandatory in this case for five (5) years as well as the 

consequences for violating conditions of post release control 

imposed by the Parole Board under Revised Code 2967.28. The 

Defendant is ordered to serve as part of this sentence any term for 

violation of that post release control. 

 

3 As appellee points out, appellant referenced R.C. 2929.19(B)(3) in his argument but 

substantively refers to R.C. 2929.19(B)(2).
Muskingum County, Case No. CT2016-

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 * * * *. 

 Entry, January 13, 2016. 

{¶45} Appellant contends the trial court failed to properly notify him of the 

consequences of violating post-release control. 

{¶46} In State v. Richard–Bey, 5th Dist. Muskingum Nos. CT2014–0012, 

CT2014–0013, 2014–Ohio–2923, this Court considered similar post-release control 

language as that used in the present sentencing entry. The trial court in Richard-Bey

sentenced appellant to eight years in prison on July 16, 2004. The trial court notified the 

appellant of mandatory post-release control for up to five years. Id. at ¶ 1. The appellant 

was resentenced on August 30, 2010 to address the sole issue of post-release control 

pursuant to State v. Bloomer, 122 Ohio St.3d 200, 2009–Ohio–2462, 909 N.E.2d 1254. 

The trial court sentenced the appellant to an aggregate term of eight years in prison and 

notified him of mandatory post-release control for five years. The sentencing entry was 

silent, however, as to the consequences of violating post-release control. Id. at ¶ 17, 909 

N.E.2d 1254. The trial court did not inform the appellant “that if he violated his supervision 

or a condition of post-release control, the parole board could impose a maximum prison 

term of up to one-half of the prison term originally imposed” pursuant to R.C. 

2929.19(B)(3)(e) [now R.C. 2929.19(B)(2)(e)]. Id. 

{¶47} The appellant appealed the 2010 sentencing entry and we affirmed the 

entry in State v. Richard–Bey, 5th Dist. Muskingum No. CT2010–Ohio–0051, 2011–Ohio–

3676. 

{¶48} On April 29, 2013, the appellant pleaded guilty to one count of having a 

weapon while under disability in violation of R.C. 2923.13. Id. at ¶ 3. By sentencing entry 
Muskingum County, Case No. CT2016-

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filed May 21, 2013, the trial court sentenced the appellant to 30 months. The trial court 

also terminated the appellant's post-release control in the 2004 case and ordered the 

remaining time be imposed and served consecutively to the 30–month sentence. Id. 

{¶49} The appellant filed a petition for post-conviction relief in both the 2004 and 

2013 cases, seeking relief from sentencing. Id. at ¶ 4. The appellant also filed a motion 

for vacation of void post-release control violation in the 2013 case, claiming the balance 

of his post-release control imposed in that case was an error because it was a nullity in 

the 2004 case. The trial court denied the petition and motion and the appellant filed a pro 

se appeal. Id. 

{¶50} On appeal, the appellant argued the trial court lacked jurisdiction to impose 

the remainder of his void post release control sanction. We agreed. We stated: 

 The 2004 sentencing entry in Case No.CR2004–119A was 

corrected on August 30, 2010 to address the sole issue of post-release 

control pursuant to State v. Bloomer, 122 Ohio St.3d 200, 909 N.E.2d 1254, 

2009–Ohio–2462. The entry was filed on September 7, 2010. The entry 

notified appellant that post-release control was mandatory for five years. 

However, the entry was silent as to the consequences of violating postrelease control. Appellant was not “informed that if he violated his 

supervision or a condition of post-release control, the parole board could 

impose a maximum prison term of up to one-half of the prison term originally 

imposed” pursuant to R.C. 2929.19(B)(3)(e) [now R.C. 2929.19(B)(2)(e) ]. 

State v. Ketterer, 126 Ohio St.3d 448, 935 N.E.2d 9, 2010–Ohio–3831, ¶ 

77 (reviewing a nunc pro tunc entry) (decided five days before appellant's 
Muskingum County, Case No. CT2016-

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resentencing). “A sentence that does not include the statutorily mandated 

term of post-release 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.” State v. Fischer, 128 Ohio St.3d 92, 942 

N.E.2d 332, 2010–Ohio–6238, paragraph one of the syllabus. See also, 

State v. Billiter, 134 Ohio St.3d 103, 980 N.E.2d 960, 2012–Ohio–5144. 

State v. Richard–Bey, 2014–Ohio–2923, ¶ 17. 

{¶51} The appellant had finished serving his sentence in the 2004 case. “Because 

the trial court did not properly impose post-release control in its September 7, 2010 entry, 

the trial court cannot terminate appellant's post-release control in Case No. CR2004–

119A and order the remaining time be imposed and served consecutively to the thirty 

month sentence in Case No. CR2013–0037.” State v. Richard–Bey, 2014–Ohio–2923, ¶ 

18. We found the trial court erred in denying the appellant's motion for vacation of void 

post-release control violation. Id. at ¶ 19. 

{¶52} We find Richard–Bey to be directly on point to the facts of the present case. 

In the present case, the trial court did not inform appellant in the January 13, 2016 

sentencing entry that if he violated his supervision or a condition of post-release control, 

the parole board could impose a maximum prison term of up to one-half of the prison term 

originally imposed pursuant to R.C. 2929.19. The sentencing entry thus does not include 

a statutorily-mandated term of post-release control and is void. Accord State v. Kepler, 

5th Dist. Muskingum No. CT2015-0021, 2015-Ohio-3291; State v. Grimes, 5th Dist. 

Muskingum No. CT2015-0026, 2015-Ohio-3497; State v. Murphy, 5th Dist. Muskingum 

No. CT2015-0023, 2015-Ohio-3598; State v. Moore, 5th Dist. Muskingum No. CT2015-
Muskingum County, Case No. CT2016-

0010 18 

0028, 2015-Ohio-5514. Contra State v. Jaryd Moore, 5th Dist. Muskingum No. CT2015-

0027, 2015-Ohio-3435. 

{¶53} Based on our decision in Richard–Bey, we find the trial court’s language in 

the sentencing entry does not adequately comply with R.C. 2929.19 (B)(2). Appellant’s 

sixth assignment of error is sustained and this matter is remanded for resentencing. 

CONCLUSION 

{¶54} Appellant’s assignments of error numbers one through five are overruled. 

Appellant’s sixth assignment of error is sustained. The judgment of the Muskingum 

County Court of Common Pleas is affirmed in part and reversed in part and this matter is 

remanded for further proceedings in accord with this opinion. 

By: Delaney, J. and 

Hoffman, J., concur. 

Farmer, P.J., dissents. 

 

 
Muskingum County, Case No. CT2016-

0010 19 

Farmer, P.J., dissenting. 

{¶1} I respectfully dissent from the majority’s view on the authority of this court’s 

opinion in State v. Jayrd Moore, 5th Dist. Muskingum No. CT2015-0027, 2015-Ohio-3435. 

HON. SHEILA G. FARMER