[Cite as State v. Murphy, 2014-Ohio-323.]

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 : O P I N I O N

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 postrelease 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, 134 Ohio St.3d 103, 2012-Ohio-5144, ¶ 12: 

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

postrelease control. Accordingly, his sentence was void. Fischer [128 

Ohio St.3d 92, 2010-Ohio-6238], 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, 104 Ohio St.3d 21, 2004-
Muskingum County, Case No. CT2013-0028 4 

Ohio-6085, 817 N.E.2d 864, ¶ 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. 

 

 

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