[Cite as State v. Filous, 2017-Ohio-7203.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ATHENS COUNTY 

STATE OF OHIO, : 

 : Case No. 16CA16 

Plaintiff-Appellee, : 

 : 

vs. : DECISION AND JUDGMENT 

: ENTRY 

NEIL E. FILOUS, : 

 : 

 Defendant-Appellant. : Released: 07/31/17 

_____________________________________________________________ 

APPEARANCES: 

Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant 

Ohio Public Defender, Columbus, Ohio, for Appellant. 

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. 

Saunders, Assistant Athens County Prosecuting Attorney, Athens, Ohio, for 

Appellee. 

_____________________________________________________________ 

McFarland, J. 

{¶1} Neil Filous appeals the judgment of the Athens County Court of 

Common Pleas finding he had violated the terms and conditions of his 

community control/judicial release and sentencing him to the time remaining 

on two concurrent twelve-month prison terms with a mandatory three-year 

term of post-release control, to be served consecutively to a prison term 

imposed in Cuyahoga County. On appeal, Appellant contends that the trial 
Athens App. No. 16CA16 2

court erred by imposing post-release control for a prison term imposed for a 

community control violation. 

{¶2} We reject the arguments raised under Appellant's sole 

assignment of error as meritless. However, because we find that the trial 

court failed to properly notify Appellant of the correct term of post-release 

control when it sentenced him to prison for a community control violation, 

the imposition of post-release control is void. Further, because Appellant 

has already completed the prison term re-imposed as a result of his 

subsequent judicial release violation, the trial court has no jurisdiction to 

correct the error related to the improper imposition of post-release control. 

Accordingly, the judgment of the trial court is vacated to the extent it 

purported to impose either an optional or mandatory three-year term of postrelease control. We additionally order Appellant discharged from further 

supervision by the Adult Parole Authority. 

FACTS 

{¶3} Appellant, Neil Filous, was indicted for two counts of domestic 

violence in violation of R.C. 2919.25, both third degree felonies. Appellant 

pleaded guilty to the charges and was originally sentenced to a five-year 

term of community control on September 24, 2012. The trial court orally 

advised Appellant at his sentencing hearing that if he violated his 
Athens App. No. 16CA16 3

community control, he would be sent to prison for twelve months. The trial 

court made no reference to post-release control during the original 

sentencing hearing. The initial judgment entry that was filed was followed 

by a nunc pro tunc judgment entry stating Appellant would be sentenced to 

two concurrent twelve-month prison terms and would be subject to an 

optional three-year term of post-release control if he violated community 

control. 

{¶4} A notice of violation was filed on February 21, 2013. A First 

Stage Revocation Hearing was held at which Appellant admitted to the 

violation. The trial court terminated Appellant's community control and 

imposed two twelve-month prison terms, to be served concurrently. The 

trial court made no reference to post-release control, and once again the 

judgment entry that followed stated Appellant would be subject to an 

optional three-year term of post-release control. Approximately six months 

later Appellant filed a motion for judicial release, which the trial court 

granted. There is no hearing transcript from the judicial release hearing in 

the record; however, the journal entry ordering judicial release stated 

Appellant was placed on five years of community control to be supervised 

by the Adult Parole Authority and the court reserved the right to re-impose 

the sentence that was reduced if Appellant violated the terms of his judicial 
Athens App. No. 16CA16 4

release/community control. The entry also stated Appellant would be 

subject to an optional three-year term of post-release control if the court reimposed the prison sentence. 

{¶5} A notice of violation of judicial release/community control was 

filed on February 5, 2016. Another First Stage Revocation Hearing was held 

on June 21, 2016. A discussion was held between the court and counsel 

regarding the fact that Appellant had previously been sentenced to an 

optional three-year term of post-release control when he should have been 

sentenced to a mandatory three-year term of post-release control. After 

deciding the mistake was a clerical error, the trial court proceeded to revoke 

Appellant's judicial release and re-impose the suspended prison sentence. 

The trial court advised Appellant during the hearing that he would now be 

subject to a mandatory three-year term of post-release control. Appellant 

was returned to prison for the balance of time remaining on his prison 

sentence, which was approximately two and half months. At this time 

Appellant has completed his prison term and was released under the 

supervision of the Adult Parole Authority beginning on March 17, 2017 for a 

period of three years. It is from the trial court's judgment entry revoking his 

judicial release, returning him to prison and subjecting him to three years of 
Athens App. No. 16CA16 5

mandatory post-release control that Appellant now brings his current appeal, 

setting forth a single assignment of error for our review. 

ASSIGNMENT OF ERROR 

“I. THE TRIAL COURT ERRED BY IMPOSING POSTRELEASE 

CONTROL FOR A PRISON TERM IMPOSED FOR A 

COMMUNITY CONTROL VIOLATION.” 

LEGAL ANALYSIS 

{¶6} In his sole assignment of error, Appellant contends the trial court 

erred by imposing post-release control for a prison term imposed for a 

community control violation. Appellant asserts that the issue presented for 

review is whether a defendant who finishes a prison term for a community 

control violation is subject to post-release control or community control. The 

State concedes this Court has consistently found that the sanction imposed for 

a community control violation punishes the violation and not the underlying 

crime. The State further argues that because the prison term to be imposed for 

such a violation must be within the range of prison terms available for the 

offense for which the sanction that was violated was imposed, post-release 

control is part of the actual sentence. 

{¶7} For the following reasons, we reject Appellant's argument and 

find his sole assignment of error to be without merit. However, because we 

find the trial court failed to properly impose post-release control when it 
Athens App. No. 16CA16 6

terminated Appellant's community control and sent him to prison the first 

time, and because Appellant has now completed his prison term, the postrelease control portion of Appellant's sentence is void and the trial court has 

no jurisdiction to correct it. Accordingly, the decision of the trial court must 

be vacated with regard to the imposition of post-release control. 

{¶8} “Generally, when reviewing felony sentences, we apply the 

standard of review set forth in R.C. 2953.08(G)(2).” State v. Baker, Athens 

No. 13CA18, 2014-Ohio-1967, ¶ 25. See also State v. Brewer, Meigs No. 

14CA1, 2014-Ohio-1903, 11 N.E.3d 317, ¶ 33 (“we join the growing number 

of appellate districts that have abandoned the Kalish plurality's second-step 

abuse-of-discretion standard of review; when the General Assembly reenacted 

R.C. 2953.08(G)(2), it expressly stated that ‘[t]he appellate court's standard of 

review is not whether the sentencing court abused its discretion’ ”). 

{¶9} Under R.C. 2953.08(G)(2), we may only modify or vacate a 

defendant's sentence if we find, clearly and convincingly, that (1) the record 

does not support the mandatory sentencing findings, or (2) that the sentence 

is “otherwise contrary to law.” We recognize that this is an “extremely 

deferential standard of review.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 

453, ¶ 21. Although State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 

896 N.E.2d 124, may not provide the standard of review framework for 
Athens App. No. 16CA16 7

reviewing felony sentences, it does provide guidance for determining 

whether a sentence is clearly and convincingly contrary to law. See State v. 

Lee, 12th Dist. Butler No. CA2012–09–182, 2013-Ohio-3404, ¶ 10. 

According to Kalish, a sentence is not clearly and convincingly contrary to 

law when the trial court considered the purposes and principles set forth in 

2929.11, as well as the factors listed in R.C. 2929.12, properly applies postrelease control, and sentences within the permissible statutory range. Id.; see 

also State v. Kalish, at ¶ 18. 

{¶10} We initially note, with respect to Appellant's argument that a 

trial court cannot impose post-release control in connection with a prison 

term imposed after a community control violation, that the Tenth District 

Court of Appeals has rejected this exact argument in State v. Nutt, 10th Dist. 

Franklin No. 00AP-190, 2000 WL 1537898, *4. Although we have been 

unable to locate any other case that has considered this particular question, 

we reject the argument as well. Appellant bases his argument, in part, upon 

an idea that a trial court has no authority to end a defendant's community 

control, except for good behavior as provided for in R.C. 2929.15 (C). We 

believe this reasoning is flawed. Courts, including this District and the 

Supreme Court of Ohio, routinely reference the termination or revocation of 

community control. State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 
Athens App. No. 16CA16 8

821 N.E.2d 995; State v. Wolfson, 4th Dist. Lawrence No. 03CA25, 2004-

Ohio-2750, ¶ 8 (trial court’s decision to revoke community control may only 

be reversed if the court abused its discretion). In our view, when a trial court 

terminates or revokes a defendant's community control, it is implicit that the 

term of community control ends. Although R.C. 2929.15 does not 

specifically label the decision to impose a prison term for a community 

control violation as a termination or revocation of the community control, 

for all intents and purposes it is nevertheless ended. We believe this 

reasoning is further bolstered by the fact that when the trial court granted 

Appellant judicial release after it had imposed a prison term for a violation 

of Appellant's community control, which will be discussed more fully 

below, it was required, under the judicial release statute, to place Appellant 

on community control. R.C. 2929.20(K). If Appellant's community control 

continued when he was sent to prison, there would have been no reason for 

the trial court to have to affirmatively place him on community control after 

he was judicially released. 

{¶11} Further, even if we were to accept Appellant's argument that 

community control continues even after it is "terminated" or "revoked" by a 

trial court when it imposes a prison sentence on an offender, this Court has 

held that "[c]ommunity control sanctions and post-release control are 
Athens App. No. 16CA16 9

separate statutory procedures." State v. Leedy, 4th Dist. Meigs Nos. 13CA7, 

13CA8, 2015-Ohio-1718, ¶ 10. In Leedy, which involved the trial court 

ordering a period of community control to be served consecutively to a 

prison term, we reasoned as follows: 

"While it is true individuals leaving prison may or may not be 

subject to post release control, community control sanctions are 

a distinct penalty the trial court imposes once an individual is 

found guilty of an offense. See generally R.C. 2929.15." Id. 

As such, we "did not find that the trial court's sentence of five years of 

community control conflicts with the discretion of the Adult Parole 

Authority's to enforce post-prison conditions." Id. 

{¶12} We additionally note that courts routinely reference defendants 

being placed on post-release control for prison terms imposed after 

community control violations, including this District. See State v. Hart, 4th 

Dist. Athens No. 13CA8, 2014-Ohio-3733, ¶ 4; State v. Evans, 4th Dist. 

Meigs No. 00CA003, 2000 WL 33538779, *5; State v. Slater, 5th Dist. Stark 

No. 2007-CA-00111, 2008-Ohio-439 (involving imposition of community 

control, revocation of community control and imposition of a prison term 

with post-release control); State v. Cunningham, 2nd Dist. Clark Nos. 2014-

CA-99, 2014-CA-100, 2015-Ohio-2554 (involving a prison term with postrelease control being imposed for a community control violation). As such, 

and in the absence of any authority to the contrary, we find no error occurs 
Athens App. No. 16CA16 10

when a trial court imposes post-release control in connection with a prison 

term imposed after a community control violation. We now reject the 

argument raised under Appellant's sole assignment of error. Unfortunately, 

however, our analysis does not end here, as we sua sponte address another 

problem that rendered the trial court's imposition of post-release control 

void. 

{¶13} As set forth above, Appellant was initially sentenced to a fiveyear term of community control after he pleaded guilty to two counts of 

domestic violence in violation of R.C. 2919.25(A), both third degree 

felonies. He was orally advised at his original sentencing hearing that the 

trial court would impose a twelve-month term of imprisonment in the event 

he violated his community control. The trial court did not specify whether it 

would impose a twelve-month term on each count, or whether the term(s) 

would run concurrently or consecutively, nor did it mention post-release 

control. However, the judgment entry filed by the court stated Appellant 

would be sentenced to an eighteen-month prison commitment as well as 

three years of optional post-release control in the event he violated his 

community control. A nunc pro tunc judgment entry was then filed stating 

all of the conditions in the prior entry were incorrect, and stating instead that 

Appellant would be sentenced to twelve-month concurrent terms of 
Athens App. No. 16CA16 11

imprisonment on each count and would be subject to an optional three-year 

term of post-release control in the event he violated his community control. 

No new hearing was held in conjunction with the issuance of this corrected 

entry. 

{¶14} When Appellant subsequently violated the terms of his 

community control, the trial court terminated Appellant’s community control 

and imposed two twelve-month prison terms, to be served concurrently. The 

trial court did not orally advise Appellant that he would be subject to a term 

of post-release control; however, the judgment entry that followed once 

again stated Appellant would be subject to an optional three-year term of 

post-release control. Another nunc pro tunc judgment entry followed, but 

made no changes pertinent herein. 

{¶15} Approximately six months later, Appellant filed a motion for 

judicial release, which the trial court granted. There is no hearing transcript 

from the judicial release hearing contained in the record before us, but the 

journal entry ordering judicial release stated that the trial court placed 

Appellant on five years of community control under the Adult Parole 

Authority, reserved the right to re-impose the sentence that was reduced in 

the event of a subsequent violation, and stated Appellant was subject to an 

optional three-year term of post-release control. Thereafter, Appellant 
Athens App. No. 16CA16 12

violated the terms of his judicial release and community control, which he 

had been placed on when he was granted judicial release. 

{¶16} At the hearing that was held on the second violation, a 

discussion was had on the record between the trial court and counsel 

regarding the fact that Appellant had previously been sentenced to an 

optional three-year term of post-release control, which should instead have 

been a mandatory term. It appears it was decided that the mistake was a 

clerical error. The trial court then revoked Appellant's judicial release, reimposed the balance of the previously-suspended sentence and informed 

Appellant he was subject to three years of mandatory post-release control. 

According to the Ohio Department of Corrections webpage, Appellant was 

released from prison on March 17, 2017 and is currently being supervised by 

the Adult Parole Authority for a period of three years.1

 

{¶17} As such, this case presents us with a scenario where Appellant 

was initially sentenced to a term of community control, which is controlled 

by one statute, but then was sent to prison, granted judicial release and then 

returned to prison, which is controlled by another statute. Accordingly, a 

review of these pertinent statutes is necessary in order to explain why we 

 

1 State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 974 N.E.2d 516, ¶ 8, 10 (court 

can take judicial notice of judicial opinions and public records accessible from the internet). 
Athens App. No. 16CA16 13

have concluded the post-release control portion of Appellant's sentence is 

void, and why we do not reach the merits of Appellant's arguments. 

{¶18} With regard to Appellant's original sentence of community 

control, R.C. 2929.19, which governs sentencing hearings, provides in 

section (A)(4) that when a court determines at a sentencing hearing that a 

community control sanction should be imposed, the court must do the 

following: 

"The court shall notify the offender that, if the conditions of the 

sanction are violated, if the offender commits a violation of law, 

or if the offender leaves this state without the permission of the 

court or the offender's probation officer, the court may impose a 

longer time under the same sanction, may impose a more 

restrictive sanction, or may impose a prison term on the 

offender and shall indicate the specific prison term that may be 

imposed as a sanction for the violation, as selected by the court 

from the range of prison terms for the offense pursuant to 

section 2929.14 of the Revised Code." (Emphasis added). 

R.C. 2929.15 governs community control sanctions and provides in section 

(B)(1) the penalties that may be imposed by the trial court in the event 

conditions of community control are violated, which include: 

"(a) A longer time under the same sanction if the total time 

under the sanctions does not exceed the five-year limit specified 

in division (A) of this section; 

(b) A more restrictive sanction under section 2929.16, 2929.17, 

or 2929.18 of the Revised Code; 

(c) A prison term on the offender pursuant to section 2929.14 of 

the Revised Code." (Emphasis added). 

R.C. 2929.15 further provides in section (B)(3) as follows: 
Athens App. No. 16CA16 14

"[t]he prison term, if any, imposed upon a violator pursuant to 

this division shall be within the range of prison terms available 

for the offense for which the sanction that was violated was 

imposed and shall not exceed the prison term specified in the 

notice provided to the offender at the sentencing hearing 

pursuant to division (B)(2) of the section 2929.19 of the 

Revised Code." 

{¶19} The Supreme Court of Ohio in State v. Brooks, 103 Ohio St.3d 

134, 2004-Ohio-4746, 814 N.E.2d 837, held at paragraph two of the syllabus 

that "[p]ursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court 

sentencing an offender to a community control sanction must, at the time of 

the sentencing hearing, notify the offender of the specific prison term that 

may be imposed for a violation of the conditions of the sanction, as a 

prerequisite to imposing a prison term on the offender for a subsequent 

violation." (Emphasis added). The Eighth District Court of Appeals has 

interpreted the holding in Brooks to mean that the trial court must only 

inform a defendant of the specific prison term at the original sentencing 

hearing, and is not required to give all of the other advisements, including 

advisements related to post-release control. State v. Harris, 8th Dist. 

Cuyahoga No. 89971, 2008-Ohio-2175, ¶ 7 (* * * there is no requirement 

that the court imposing community control sanctions must inform the 

defendant that if he is later sentenced to a term of imprisonment for a 

violation of the conditions of his sanctions, then post-release control may be 
Athens App. No. 16CA16 15

imposed. These contingencies are not part of the 'specific prison term' that 

can be imposed in the event of a future violation of the conditions of postrelease control."); State v. Oulhint, 8th Dist. Cuyahoga No. 99296, 2013-

Ohio-3250, ¶ 12 ("Absent from the above statutes [R.C. 2929.19 and R.C. 

2929.15] is a requirement that a court that chooses to impose community 

control sanctions as an initial sentence must inform the offender of 

postrelease control. Such requirement applies, instead, when the trial court 

chooses at the original sentencing hearing to impose the sanction of a prison 

term."); citing R.C. 2967.28(B) and 2929.19(B)(3); see also State v. Parker, 

5th Dist. Stark Nos. 2010CA00148, 2010CA00149, 2011-Ohio-595, ¶ 30. In 

light of the foregoing, despite the trial court's failure to mention post-release 

control at Appellant's original sentencing hearing in which the trial court 

imposed a community control sanction, which we would normally consider 

to be a post-release control notification error, we find no error. 

{¶20} Here, we do find that an error occurred with regard to the 

imposition of post-release control at the time Appellant's community control 

was terminated and Appellant was sentenced to prison. In State v. Fraley,

supra, at ¶ 17, the Supreme Court of Ohio reasoned that "[f]ollowing a 

community control violation, the trial court conducts a second sentencing 

hearing. At this second hearing, the court sentences the offender anew and 
Athens App. No. 16CA16 16

must comply with the relevant sentencing statutes." The decision of the 

Supreme Court was split in this case, with Chief Justice Moyer dissenting 

based upon his belief "that community control-violation hearings are not 

sentencing hearings." Id. at ¶ 22. The dissenting opinion went on to state 

that "[t]he application of these basic principles of felony sentencing in an 

R.C. 2929.15(B) hearing does not transform that proceeding into an R.C. 

2929.19 sentencing hearing." Id. at ¶ 23. Despite the disagreement, the 

majority opinion concluded that each new community control violation 

hearing in effect is a new sentencing hearing where the defendant is 

sentenced "anew." Id. at ¶ 17. 

{¶21} The Oulhint Court has reasoned as follows with regard to the 

holding in Fraley: 

"We construe the holding of the Supreme Court in Fraley

narrowly to mean that a trial court that fails to notify a 

defendant of the specific penalty he will face upon a violation 

of community control sanctions at the initial sentencing may 

'cure' that failure at a subsequent violation hearing by then 

advising the defendant of the definite term of imprisonment that 

may be imposed upon any subsequent finding of violation. We 

find nothing in the statute or Fraley that requires a legally 

adequate notification in the first instance be given over and over 

again." Oulhint at ¶ 19. 

Applying the rationale of Brooks, in light of Fraley, Harris and Oulhint, it 

appears that the trial court did not err in failing to mention post-release 

control at Appellant's original sentencing hearing, as it was not part of the 
Athens App. No. 16CA16 17

"specific" prison term. Further, it appears that when Appellant violated his 

community control and was brought before the trial court and sentenced to 

prison, that hearing was not actually a First Stage Revocation Hearing, as 

referred to by the trial court, but under Fraley was a second sentencing 

hearing in which Appellant was sentenced "anew" to two concurrent twelvemonth terms of imprisonment. Importantly, the trial court failed to mention 

post-release control at this second sentencing hearing as well. 

{¶22} Although the judgment entry stated Appellant was to be subject 

to an optional three-year term of post-release control, the trial court did not 

notify Appellant of this fact on the record during the sentencing. Under R.C. 

2929.19(B)(2)(c) and (e), a trial court must notify certain felony offenders at 

the sentencing hearing that: 1.) the offender is subject to statutorily 

mandated post-release control; and 2.) the parole board may impose a prison 

term of up to one-half of the offender's originally-imposed prison term if the 

offender violates the post-release control conditions. Not only is a trial court 

required to notify the offender about post-release control at the sentencing 

hearing, it is further required to incorporate that notice into its journal entry 

imposing sentence. However, the main focus of the post-release control 

sentencing statutes is on the notification itself and not on the sentencing 

entry. (Citations and quotations omitted.) State v. Adkins, 4th Dist. Lawrence 
Athens App. No. 16CA16 18

No. 13CA17, 2014-Ohio-3389, 2014 WL 3824030, ¶ 36. “When a trial 

court fails to provide the required notification at either the sentencing 

hearing or in the sentencing entry, that part of the sentence is void and must 

be set aside.” (Emphasis sic.) Id. at ¶ 37; citing State v. Fischer, supra, at 

¶¶ 27-29; see also State v. Adams, 4th Dist. Lawrence No. 15CA2, 2016-

Ohio-7772, ¶ 87. “ ‘[I]n most cases, the prison sanction is not void and 

therefore “only the offending portion of the sentence is subject to review and 

correction.” ’ ” Id.; quoting State v. Holdcroft, 137 Ohio St.3d 526, 2013-

Ohio-5014, 1 N.E.3d 382, ¶ 7; quoting Fischer at ¶ 27. 

{¶23} Because the trial court failed to notify Appellant that he would 

be subject to post-release control at this second sentencing hearing where the 

trial court imposed a prison term and, in effect under Fraley, sentenced 

Appellant "anew," this failure constitutes a notification error resulting in the 

imposition of post-release control being void. We further note that because 

Appellant's underlying convictions were two 3rd degree felonies that were 

offenses of violence, and because the trial court was required to impose a 

sentence from the range for the underlying offense, he should have been 

subject to a mandatory three-year term of post-release control, not an 

optional three-year term. R.C. 2967.28(B)(3). See State v. Nutt, 10th Dist. 

Franklin No. 00AP-190, 2000 WL 1537898, *4 (reasoning that once a trial 
Athens App. No. 16CA16 19

court imposes a prison term, rather than a more restrictive community 

control sanction, post-release control was mandatory under R.C. 

2967.28(B).) 

{¶24} The trial court attempted to correct this error when Appellant's 

judicial release was revoked and he was returned to prison. The record 

reveals that during the hearing in which Appellant's judicial release was 

revoked, the trial court and counsel engaged in a discussion regarding the 

fact that Appellant had been previously sentenced to an optional three-year 

term of post-release control rather than a mandatory term. After deciding 

the error was a clerical one, the trial court sentenced Appellant to prison for 

the time remaining on his previously-suspended sentence, which was 

approximately two and a half months, and informed him he was now subject 

to a mandatory three-year term of post-release control. This attempt by the 

trial court to cure the error failed. 

{¶25} As indicated above, judicial release is governed by a different 

statute than community control. R.C. 2929.20, which governs judicial 

release, provides in section (K) that when a court grants an offender judicial 

release, it "shall reserve the right to reimpose the sentence that it reduced if 

the offender violates the sanction." In State v. McConnell, 143 Ohio App.3d 

219, 757 N.E.2d 1187 (3rd Dist.2001), the court reasoned that R.C. 
Athens App. No. 16CA16 20

2929.20(I) [now (K)] "permits the trial court merely to reinstate the reduced, 

original prison term upon a violation of the conditions of early judicial 

release." Further, in State v. Abrams, 7th Dist. Mahoning No. 15 MA 0217, 

2016-Ohio-5581, ¶ 14, the court stated as follows: 

"* * * according to the explicit language of the judicial release 

statute, the trial court is bound by the specific term of 

incarceration imposed at the original sentencing hearing. This 

means the offender serves the remainder of the exact term of 

incarceration that has only been suspended by the grant of 

judicial release. R.C. 2929.20(K), see also State v. Mann, 3rd 

Dist. No. 3-03-42, 2004-Ohio-4703, ¶ 13; State v. Darst, 170 

Ohio App.3d 482, 2007-Ohio-1151, 867 N.E.2d 882, ¶ 35.” 

 

Because the trial court is limited to reimposing the sentence previously 

imposed upon a violation of judicial release, it stands to reason that the court 

cannot, at that time, correct a sentencing error that occurred when the 

sentence was originally imposed. This is because the sentencing at a judicial 

release revocation hearing is much more limited than the sentencing at a 

community control revocation hearing, which was the situation in Fraley, 

supra, where the court reasoned an offender is sentenced "anew." 

{¶26} Further, and unfortunately, because Appellant has now already 

completed his prison sentence, the trial court is without jurisdiction to correct 

his sentence. "[O]nce an offender has completed the prison term imposed in 

his original sentence, he cannot be subjected to another sentencing to correct 

the trial court's flawed imposition of postrelease control." State v. Bloomer, 
Athens App. No. 16CA16 21

122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 70; citing State v. 

Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 18, and State 

v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, at 

syllabus (overruled on other grounds by State v. Fischer, supra). “[W]here a 

defendant has served his term of incarceration on the underlying sentence, the 

parole authority lacks the authority to impose post-release control upon a 

defendant and there can be no remand for resentencing.” State v. Biondo, 11th 

Dist. Portage No. 2008-P-0028, 2008-Ohio-6560, ¶ 28; citing Hernandez v. 

Kelly, 108 Ohio St.3d 395, 844 N.E.2d 301, 2006-Ohio-126; State ex rel. 

Cruzado v. Zaleski, 111 Ohio St.3d 353, 856 N.E.2d 263, 2006-Ohio-5795. 

Therefore, the post-release control portion of Appellant's is void and cannot 

now be corrected. 

{¶27} Accordingly, having found no merit to the assignment of error 

raised by Appellant, it is overruled. However, having sua sponte found the 

trial court's imposition of post-release control in this case to be void and the 

trial court to be without jurisdiction to correct it because Appellant has already 

completed his prison term, the judgment of the trial court must be vacated 

with regard to the imposition of post-release control. We additionally order 

Appellant discharged from further supervision by the Adult Parole Authority. 
Athens App. No. 16CA16 22

State v. Biondo, supra, at ¶ 28 (a “defendant who has served his prison term is 

entitled to release from post-release control.”). 

JUDGMENT AFFIRMED IN 

PART AND VACATED IN PART. 
Athens App. No. 16CA16 23

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED IN PART AND 

VACATED IN PART. Appellant and Appellee shall split costs. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Athens County Common Pleas Court to carry this judgment into 

execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE 

UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL 

COURT OR THIS COURT, it is temporarily continued for a period not to 

exceed sixty days upon the bail previously posted. The purpose of a 

continued stay is to allow Appellant to file with the Supreme Court of Ohio 

an application for a stay during the pendency of proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier of the 

expiration of the sixty day period, or the failure of the Appellant to file a 

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of sixty days, the stay will terminate as of the date 

of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Abele, J.: Concurs in Judgment and Opinion. 

Hoover, J.: Concurs in Judgment Only. 

For the Court, 

 BY: _____________________________ 

 Matthew W. McFarland, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.