[Cite as State v. Viccaro, 2013-Ohio-3437.]

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, 2011-Ohio-502, 2011 Ohio 
App. LEXIS 445 (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, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977); 

State v. Patrick, 8th Dist. Cuyahoga No. 77644, 2000 Ohio App. LEXIS 3780 (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, 128 

Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, 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, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960. 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, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 

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

Rice, 8th Dist. Cuyahoga No. 95100, 2011-Ohio-1929, 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. Id. In State v. Nicholson, 8th Dist. Cuyahoga No. 95327, 

2011-Ohio-14, 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.” Id., 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, 2013-Ohio-254, citing 

State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. Therefore, any 

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

{¶12} In State v. Cash, 8th Dist. Cuyahoga No. 95158, 2011-Ohio-938, 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.” Id. In 

affirming the dismissal of the escape charge, this court relied on Hernandez v. Kelly, 108 

Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, 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.” Id. 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. Id. 

 

{¶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, 

2011-Ohio-1929; Nicholson, 8th Dist. Cuyahoga No. 95327, 2011-Ohio-14. 

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, 2013-Ohio-254. 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