[Cite as State v. Messenger , 2011-Ohio-2017.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ATHENS COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 10CA34 

 : 

 vs. : Released: April 22, 2011

 : 

MATTHEW T. MESSENGER, : DECISION AND JUDGMENT 

 : ENTRY

 Defendant-Appellant. : 

_____________________________________________________________ 

APPEARANCES:

Matthew T. Messenger, Chillicothe, Ohio, Appellant, pro se. 

C. David Warren, Athens County Prosecuting Attorney, and George J. 

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

Appellee. 

_____________________________________________________________ 

 

McFarland, J.: 

{¶1} This is an appeal from an Athens County Court of Common 

Pleas judgment entry, issued after holding a re-sentencing hearing in order to 

properly impose a mandatory five-year term of post release control. On 

appeal, Appellant contends in his first through third assignments of error that 

his conviction and sentence are void for failure to comply with statutory 

requirements, and claims that he was thus deprived of his constitutional 

rights to due process. Further, in his fourth and fifth assignments of error 

Appellant contends that the trial court lacked jurisdiction to impose 
Athens App. No. 10CA34 2

mandated post release control and that his sentence should be reversed 

because it was imposed over six years after his guilty plea was entered.

{¶2} In light of our conclusion that Appellant was informed during the 

sentencing hearing that the five-year term of post release control was 

mandatory, not discretionary, the proper remedy was to add the omitted post 

release control language in a nunc pro tunc entry after a hearing. As such, 

Appellant’s first, second and third assignments of error are overruled. With 

respect to Appellant’s fourth assignment of error, as Appellant had not yet 

been released from prison at the time of his re-sentencing hearing, the trial 

court did not err in re-sentencing Appellant to properly impose mandatory 

post release control. Finally, with respect to Appellant’s fifth assignment of 

error, we conclude there was no unnecessary delay in imposing sentence. 

Thus, Appellant’s fourth and fifth assignments of error are also overruled. 

Accordingly, the decision of the trial court is affirmed. 

FACTS 

{¶3} On May 24, 2004, a combined plea and sentencing hearing was 

held wherein Appellant pled guilty to five counts of rape in violation of R.C. 

2907.02(A)(1)(b), all first degree felonies. During both the plea hearing and 

the sentencing hearing, Appellant was correctly advised that he would be 

subject to a mandatory five-year period of post release control However, the 
Athens App. No. 10CA34 3

judgment entry issued on June 3, 2004, incorrectly stated that “post-release 

control is optional in this case up to a maximum of five (5) years[.]” 

{¶4} On April 14, 2010, Appellant filed a motion to impose a valid 

sentence. In response, on June 2, 2010, a re-sentencing hearing was held 

wherein the trial court “re-affirmed its findings and sentence from the earlier 

hearing except that it modified the order regarding Post-Release Control.” 

A judgment entry was filed on June 4, 2010, and it is from this entry that 

Appellant brings his timely appeal, assigning the following errors for our 

review. 

ASSIGNMENTS OF ERROR 

“I. JUDGEMENT OF CONVICTION AND SENTENCE ARE VOID 

FOR FAILURE TO COMPLY WITH STATUTORY 

REQUIREMENTS AND THUS THE ACCUSED HAS BEEN 

DEPRIVED OF HIS RIGHTS TO DUE PROCESS IN VIOLATION 

OF THE 5TH, 6TH, AND 14TH AMENDMENTS TO THE 

CONSTITUTION OF THE UNITED STATES. 

II. JUDGEMENT OF CONVICTION AND SENTENCE ARE VOID 

FOR FAILURE TO COMPLY WITH STATUTORY 

REQUIREMENTS AND THUS THE ACCUSED HAS BEEN 

DEPRIVED OF HIS RIGHTS TO DUE PROCESS IN VIOLATION 

OF THE 5TH, 6TH, AND 14TH AMENDMENTS TO THE 

CONSTITUTION OF THE UNITED STATES. 

III. JUDGEMENT OF CONVICTION AND SENTENCE ARE VOID 

FOR FAILURE TO COMPLY WITH STATUTORY 

REQUIREMENTS AND THUS THE ACCUSED HAS BEEN 

DEPRIVED OF HIS RIGHTS TO DUE PROCESS IN VIOLATION 

OF THE 5TH, 6TH, AND 14TH AMENDMENTS TO THE 

CONSTITUTION OF THE UNITED STATES. 
Athens App. No. 10CA34 4

IV. THE TRIAL COURT LACKED JURISDICTION TO IMPOSE 

MANDATED POST-RELEASE CONTROL UPON THE 

APPELLANT. 

V. THE SENTENCE SHOULD BE REVERSED AS IT VIOLATES 

CRIMINAL RULE 32, AND THE 5TH, 6TH, AND 14TH

AMENDMENTS OF THE CONSTITUTION OF THE UNITED 

STATES, BECAUSE IT WAS IMPOSED OVER 6 YEARS AFTER 

THE GUILTY PLEA.” 

ASSIGNMENTS OF ERROR I, II AND III 

{¶5} In his first, second, and third assignments of error, Appellant 

contends that his judgment of conviction and sentence are void as a result of 

the trial court’s failure to comply with statutory requirements in imposing 

post release control. He claims that, as a result, he was deprived of his rights 

to due process under the 5th, 6th and 14th Amendments of the United States 

Constitution. In raising this argument, Appellant alleges that 1) the sentence 

purportedly imposed was void; 2) the trial court lacked jurisdiction to 

impose a mandated five-year term of post release control at the re-sentencing 

hearing; and 3) that the trial court erred by holding a re-sentencing hearing 

instead of vacating the sentence and holding a full de novo sentencing 

hearing. 

{¶6} By enacting R.C. 2929.191, effective date July 11, 2006, the 

legislature promulgated a statutory remedy for trial courts to use to correct 

an error in imposing post release control. State v. Singleton, 124 Ohio St.3d 
Athens App. No. 10CA34 5

173, 2009-Ohio-6434, 920 N.E.2d 958, at ¶ 1. In Singleton, the Supreme 

Court of Ohio reasoned as follows with respect to the retroactive application 

of R.C. 2929.191: 

“for sentences imposed prior to July 11, 2006, in which a trial court failed to 

properly impose postrelease control, trial courts shall conduct a de novo 

sentencing hearing in accordance with decisions of the Supreme Court of 

Ohio. However, for criminal sentences imposed on and after July 11, 2006, 

in which a trial court failed to properly impose postrelease control, trial 

courts shall apply the procedures set forth in R.C. 2929.191.” Singleton at ¶ 

1. 

Thus, Singleton holds that R.C. 2929.191 applies only prospectively and 

essentially provides that if a trial court fails to properly impose post release 

control, after a hearing, it may issue a nunc pro tunc entry correcting the 

error. 

{¶7} Appellant herein was sentenced prior to the effective date of 

R.C. 2929.191. Thus, the reasoning set forth in Singleton would seem to 

dictate that the trial court conduct a de novo sentencing hearing. However, 

the Supreme Court of Ohio recently modified its position on the type of 

hearing that must be conducted to correct an error related to the imposition 

of post release control. In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio6238, 942 N.E.2d 332, at paragraphs one and two of the syllabus, the Court 

held that a sentence that does not include the statutorily mandated term of 

post release control is void and that the new sentencing hearing to which an 
Athens App. No. 10CA34 6

offender is entitled under State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio3250, 868 N.E.2d 961, is limited to the proper imposition of post release 

control. In further explaining its holding, the Fischer Court stated that 

“when a judge fails to impose statutorily mandated postrelease control as 

part of a defendant’s sentence, that part of the sentence that is void and must 

be set aside. Neither the Constitution nor common sense commands 

anything more.” Fischer at ¶ 26. 

{¶8} Further, based on facts identical to the facts sub judice, in State 

v. Qualls, Meigs App. No. 10CA8, 2010-Ohio-5316, at ¶ 13, this Court drew 

a distinction between failing to properly notify an offender of a mandatory 

term of post release control during the sentencing hearing and failing to 

properly include that term in the sentencing entry. In Qualls, we reasoned 

that because the trial court properly imposed post release control at the 

sentencing hearing, but simply failed to properly include it in the sentencing 

entry, the proper remedy was to add the omitted post release control 

language in a nunc pro tunc entry after a hearing. Id. Thus, we essentially 

reasoned that because Appellant received the proper notice at the sentencing 

hearing, his sentence was not void. Rather, the failure of the sentencing 

entry to accurately reflect the imposition of post release control was a 

clerical error capable of correction. As set forth above, our review of the 
Athens App. No. 10CA34 7

record clearly demonstrates that although Appellant’s original sentencing 

entry did not include a mandatory term of post release control, Appellant 

was advised during his original sentencing hearing that he would be subject 

to a mandatory five-year term of post release control. 

{¶9} Here, Appellant was conveyed from prison to attend a resentencing hearing, and was accompanied by his attorney during that 

hearing. The trial court’s sentencing entry issued after the hearing properly 

included language indicating that the five-year term of post release control 

was mandatory. The entry also stated that “[t]he Court re-affirmed its 

findings and sentence from the earlier hearing except that it modified the 

order regarding Post-Release control.” As such, we conclude that the trial 

court’s actions in conducting a hearing and issuing a corrected journal entry 

properly remedied the omission in the original sentencing entry and were in 

accordance with State v. Qualls, supra, as well as State v. Fischer, supra. 

See also, State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-

Ohio-2671, 931 N.E.2d 110 (granting writ of mandamus compelling trial 

court judge to issue a sentencing entry that complies with post release 

control provisions of R.C. 2967.28); State v. Harrison, Butler App. No. 

CA2009-10-272 and CA2010-01-019, 2010-Ohio-2709 at ¶22-23 (reasoning 

that where defendant was properly advised of post release control term at 
Athens App. No. 10CA34 8

sentencing hearing, error in original entry was clerical and nunc pro tunc 

entry may be used to correct clerical mistake). 

{¶10} We do note, however, that we recently certified a conflict to the 

Supreme Court of Ohio between our decisions in State v. Qualls and State v. 

Lee, Lucas App. No. L-09-1279, 2010-Ohio-1704, where, based on the same 

facts, the court concluded that an omission in the sentencing entry could not 

be remedied with a nunc pro tunc entry and instead required a de novo 

sentencing hearing.1

 Nonetheless, in an effort to adhere to precedent, our 

decision today is consistent with our prior reasoning in State v. Qualls, 

supra. Accordingly, Appellant’s first, second and third assignments of error 

are overruled. 

ASSIGNMENT OF ERROR IV 

{¶11} In his fourth assignment of error, Appellant contends that as he 

already completed the first two of five consecutive three year prison terms, 

the trial court was without jurisdiction to impose a mandatory five year term 

of post release control as to those two convictions and sentences. In support 

of his contention, Appellant argues that a trial court may not correct an 

erroneous sentence once an offender’s sentence has been completed. He 

also argues that the error in the sentencing entry rendered his sentences void. 

 

1

 In light of the recent holding in State v. Fischer, supra, however, State v. Lee would now be incorrect to 

the extent that it demands a de novo sentencing hearing. 
Athens App. No. 10CA34 9

{¶12} The record before us reveals that Appellant pled guilty to five 

counts of rape and was sentenced to three year prison terms on each count, 

to be served consecutively, for an aggregate term of fifteen years. In 

addition, Appellant was notified twice at his combined plea and sentencing 

hearing that he would be subject to a mandatory five-year term of post 

release control. However, the original sentencing entry mistakenly stated 

that post release control was “optional in this case up to a maximum of five 

(5) years[.]” 

{¶13} In light of our reasoning with respect to Appellant’s first three 

assignments of error that where Appellant was properly advised of 

mandatory post release control in the sentencing hearing, that such a mistake 

was essentially clerical and could be corrected by the trial court, we disagree 

with Appellant’s contention that his sentences are void.2

 Thus, the trial 

court did not lack jurisdiction to correct its original sentencing entry. 

{¶14} Further, in State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 

358, 2006-Ohio-5795, 856 N.E.2d 263, the Supreme Court of Ohio reasoned 

that as Cruzado’s sentence had not been completed at the time he was resentenced, the judge “was authorized to correct the invalid sentence to 

 

2

 In reaching this conclusion we are mindful of the Supreme Court of Ohio’s recent statement contained in 

State v. Fischer that “[t]he failure to impose a statutorily mandated period of postrelease control is more 

than administrative or clerical error. It is an act that lacks both statutory and constitutional authority.” 

Fischer at ¶ 22. Again, based upon our prior reasoning in Qualls, supra, we believe that the fact that 

Appellant was properly advised of mandatory post release control during his original sentencing hearing 

factually distinguishes the present case from Fischer. 
Athens App. No. 10CA34 10

include the appropriate, mandatory postrelease-control term.” See, also 

State v. Fischer, supra, (permitting re-sentencing after appellant served more 

than five years of an aggregate fourteen year prison sentence for multiple 

offenses including firearms specifications on each); State v. Jenkins, 

Montgomery App. No. 24117, 2011-Ohio-634 at ¶4 (permitting resentencing of appellant just two weeks before expiration of prison term 

consisting of ten year term for rape and eight year term for felonious assault 

being served concurrently). 

{¶15} Thus, we conclude that as Appellant had not yet completed his 

aggregate prison term of fifteen years, the trial court had jurisdiction to resentence him. As such, Appellant’s fourth assignment of error is overruled. 

ASSIGNMENT OF ERROR V 

{¶16} In his fifth assignment of error, Appellant contends that his 

sentence should be reversed as it violates Crim.R. 32, as well as the 5th, 6th, 

and 14th Amendments of the United States Constitution. Appellant argues 

that his original sentence was invalid, therefore resulting in a six year delay 

from the time he was found guilty to the time he was re-sentenced. 

 {¶17} Crim.R. 32(A) provides that “[s]entence shall be imposed 

without unnecessary delay.” In the present case, Appellant pled guilty and 

was sentenced in one combined hearing held on May 24, 2004. The trial 
Athens App. No. 10CA34 11

court issued its judgment entry on June 3, 2004. Appellant did not make the 

trial court aware of the sentencing error until he filed his motion to impose a 

valid sentence on April 14, 2010. A re-sentencing hearing was scheduled 

for June 2, 2010. On that same day, Appellant also filed a motion to 

dismiss, claiming a delay in sentencing in violation of Crim.R. 32. 

{¶18} On June 4, 2010, the trial court issued its judgment entry 

imposing a mandatory five-year period of post release control, reaffirming 

Appellant’s original sentence in all other respects, and denying Appellant’s 

motion to dismiss. Based upon this timeline, we can discern no 

unreasonable or unnecessary delay between Appellant’s original plea and 

sentence, or Appellant’s motion for imposition of valid sentence and his resentencing. 

{¶19} As we have already noted, Appellant was properly advised 

during his original sentencing hearing that he would be subject to a 

mandatory five-year term of post release control. Thus, we have concluded 

that his original sentence was not void and the trial court had jurisdiction to 

correct its prior error in its sentencing entry. Further, assuming arguendo 

there is no distinction between failing to properly advise of post release 

control at the sentencing hearing and failing to properly include that notice 

in the sentencing entry, based upon the reasoning of Fischer, “when a judge 
Athens App. No. 10CA34 12

fails to impose statutorily mandated postrelease control as part of a 

defendant’s sentence, that part of the sentence that is void and must be set 

aside[]” and “only the offending portion of the sentence is subject to review 

and correction.” Fischer at ¶ 26-27. Moreover, res judicata “applies to 

other aspects of the merits of a conviction, including the determination of 

guilt and the lawful elements of the ensuing sentence.” Id. at ¶ 40. 

{¶20} Thus, in light of the foregoing, the error in Appellant’s original 

sentence was, at best, under Qualls, supra, a clerical error capable of 

correction at any time by the trial court. At worst, under Fischer, supra, the 

error rendered only the post release control aspect of Appellant’s sentence 

void, and left all other aspects of Appellant’s conviction and sentence, 

including his aggregate fifteen year prison term, in tact. As such, we reject 

Appellant’s argument that there was an unnecessary delay in imposing 

sentence upon him. Accordingly, Appellant’s fifth and final assignment of 

error is overruled. 

{¶21} Having overruled all of Appellant’s assignments of error, the 

judgment and sentence of the trial court as set forth in its June 4, 2010, 

judgment entry is affirmed. 

JUDGMENT AFFIRMED. 
Athens App. No. 10CA34 13

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and that the 

Appellee recover of Appellant 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 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. 

Exceptions. 

Abele, J.: Concurs in Judgment and Opinion. 

Harsha, P.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.