[Cite as State v. Clark , 2013-Ohio-299.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 2012 CA 16

v. : T.C. NO. 00CR189 DON A. CLARK : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N

Rendered on the 1st day of February , 2013.

. . . . . . . . . . LISA M. FANNIN, Atty. Reg. No. 0082337, Prosecutor’s Office, 50 E. Columbia Street, P.O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee MELISSA M. PRENDERGAST, Atty. Reg. No. 0075482, 250 E. Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant

. . . . . . . . . . FROELICH, J. {¶ 1} Don A. Clark appeals from the trial court’s denial of his motion to

vacate a void sentence.[Cite as State v. Clark , 2013-Ohio-299.] {¶ 2} In his sole assignment of error, Clark contends the tr ial court erred in denying the motion, which addre ssed the post-release control por tion of his sentence. Clark claims the trial court erroneously imposed post -release control because its sentencing entry failed to recite the consequences of a post-release control viol ation. He asserts that this omission rendered the post-rel ease control portion of his sentence void. Finally, Clark argues that the trial court cannot now correct the error because he has been released from prison.

I. Facts and Course of Proceeding {¶ 3} The pertinent facts are undisputed. Clark was convicted of aggravated burglary with a deadly-weapon specification in 2000. The trial court imposed a sentence of three years in prison for a “gun specification,” to be served prior to and consecutively to an eight-year sentence for the aggravated burglary. Thus, the total prison sentence was eleven years. The sentencing entry advised Clark th at post-release control was mandatory for “up to a maximum of three years.” {¶ 4} On September 1, 2010, the trial court held a resentencing hearing. The court began by noting that the original sentencing entry was void because of improper post-release control, and th at sentencing would occur de novo . The court further noted that it could not properly impose a three-year pr ison sentence for the firearm specification,

because the indictment failed to state that th e deadly weapon was a firearm. Because the maximum sentence for the aggravated burglary was ten years, the trial court decided to impose the maximum term for that offense, while giving Clark credit for the time he had already served – a period of ten years a nd almost six months (from March 25, 2000 to3 September 1, 2010). {¶ 5} The trial court correctly advised Clark at the resentencing hearing that a five-year period of post-releas e control was mandatory. Tr anscript of Resentencing Hearing, p. 7. The trial court also correctly advised Clark about the potential consequences of violating the terms of his post-release control, including the specific amount of additional prison time Clark faced. Id . at 7-8. Specifically, the court stated as follows: Defendant’s notified that post release control is mandatory in this case for a period of five years. Violation of any rule of the Parole Authority while on post

release control could result in more restri ctive sanctions, including going back to prison for up to one half the time imposed by the Court but not to exceed more than 9 months on any one violation. If he commits a felony while on post release control, he could go back to prison for at least one year and up to th e amount of time remaining on post release control if it’s greater than a year. And that sentence would have to be served consecutive to any sentence on the new felony . He’s ordered to pay the costs of prosecution and the court costs in this case. Id

. {¶ 6} At the end of the resentencing hearin g, the trial court as ked Clark if he had already signed up for pos t-release control at the prison, and Clark said that he had not. The

court also asked Clark if he ha d personal items remaining at th e prison, and Clark said yes. The court noted that the easiest thing to do woul d be to transport Clark back to the prison to get his personal items and to get signed up fo r post-release control, because the court had previously encountered difficulties in a similar situation.[Cite as State v. Clark , 2013-Ohio-299.] {¶ 7} The trial court filed its sentencing entry on September 2, 2010, the day after the sentencing hearing. Regarding post-release control, the entry stated that:

The Court has further notified the de fendant that post release control is mandatory in this case for a period of five years, as well as the consequences for violating conditions of post release control imposed by the

Parole Board under Revise d Code Section 2967.28. The defendant is ordered to serve as part of this sentence any term of post release control imposed by the Parole Board, and any prison term for violation of that post release control. Doc. #32, p. 1. {¶ 8} Clark did not appeal from the judg ment entry filed on September 2, 2010. The record does not clearly indi cate when Clark was released fro m prison, but Clark states in his brief that he was released on September 2, 2010, and the State has not disagreed. After being placed on post-release cont rol, Clark filed a motion in July 2011, seeking to vacate a “void” sentence. Doc. #37. In the motion, Clark contended that the trial court was required to state whethe r post-release control is mandatory, and was also required to state the precise terms of post-release c ontrol in both the sentencing h earing and in the sentencing entry. Although the sentencing entry imposed five years of mandatory post-release control

and stated that Clark had been advised about the “consequences for violating conditions of post release control imposed by the Paro le Board under Revise d Code Section 2967.28,” Clark maintained that the entry was deficien t because it failed to specify the amount of prison time he faced for a violation. Clark argued that the sentencing entry was void,

because it failed to include this mandatory notification. Furt her, Clark contended that the trial court could no longer hold a sentencing hearing to correct the error, because Clark had5 already been released from prison. {¶ 9} The trial court overrule d Clark’s motion, without explanation, in a short entry filed on February 9, 2012. Do c. #40. This appeal followed.

II. Did the Trial Court Err in Failing to Include the Terms of

Post-Release Control and to Set Forth the Consequences for Viola ting Post-Release Control Conditions in the Entry? {¶ 10} Clark’s assignment of error raises two issues for review: (1) whether the trial court’s most recent sentencing entry was re quired to specify the precise consequences of violating post-release control; and (2) if s o, what effect the omission has on Clark’s post-release control obligation. {¶ 11} Our review of the difficult-to-decipher trends in this area of the law indicates that a judgment entry need not be corrected to include the specific consequences for violating post-releas e control conditions, if the trial c ourt imposes a lawful sentence of post-release control, properly notifies the defe ndant regarding post-release control and the specific consequences of a viol ation during the sentencing hearing, and the sentencing entry contains notification regarding the fact that post-release control is being imposed and that a prison term could be or dered for any violation.

A. Changes in the Law Prior to the Time Clark was Resentenced {¶ 12} In 2000, while upholding the constitutionality of R.C. 2967.28 against a separation of powers challenge, the Ohio Supreme Court stated that “pursuant to R.C.6 2967.28(B) and (C), a trial court must inform the offender at sentencing or at the time of a plea hearing that post-release control is part of the offender's sentence.” Woods v. Telb, 89 Ohio St.3d 504, 513, 733 N.E.2d 1103 (2000). Subse quent “clarifications” began in 2004, when the Ohio Supreme Court noted that a trial court ha s a duty under R.C. 2967.28(B) and (C) to “notify the offender at the sentencing hearing and to incorporate postrelease control notification into its journal entry.” State v. Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 22. In Jordan , the court observed that: Because a trial court has a statutory duty to provide notice of postrelease control at the sentencing hearing, any se ntence imposed without such notification is contrary to law. As a general rule, if an appellate court determines that a sentence is clearly and convincingly contrary to law, it may remand for resentencing. See R.C. 2953.08(G)(2). * * * Furthermore, where a sentence is void because it does not contain a statutorily mandated term, the proper remedy is, likewise, to resentence the

defendant. Id . at ¶ 23, citing State v. Beasley , 14 Ohio St.3d 74, 471 N.E.2d 774 (1984). {¶ 13} Relying on Beasley , the Ohio Supreme Court stated that “ ‘Any attempt by a court to disregard statutor y requirements when imposing a sentence renders the attempted sentence a nullity or void.’ ” Jordan at ¶ 25. Thus, because the trial courts had failed to notify the various defendants in Jordan of post-release control during their sentencing hearings, but had incorporated post-release control into the sentencing entries, the Supreme

Court concluded that the sentences must be v acated and the cases must be remanded to the trial court for resentencing. Id. at ¶ 27-29.[Cite as State v. Clark , 2013-Ohio-299.] {¶ 14} Subsequently, in Hernandez v. Kelly , 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, the Ohio Supreme Court granted a petition for a writ of habeas corpus and ordered the release of a prisoner who had violated the terms of his post-release control. At the sentencing hearing, the trial court had incorrectly indicated that post-release control could be imposed for a period of “up to” five years, when the term was mandatory. The trial court also failed to incorporate imposition of post-release control into the sentencing entry. Id. at ¶ 2. {¶ 15} The Ohio Supreme Court rejected the Adult Parole Authority’s (APA’s) argument that R.C. 2967.28 provided the APA with the authority and duty to impose post-release control. The court noted that nothing in the statute authorized the APA to exercise its authority if the trial court failed to impose post-release control in its sentence.

Id. at ¶ 18. Furthermore, according to the court, this construc tion avoided potential separation of powers problems. Id. at ¶ 19. Thus, unless the trial court included post-release control in its sentence, the AP A did not have authority to impose it. Id. at ¶ 20.

{¶ 16} In deciding what remedy would be appropriate, the Ohio Supreme Court rejected resentencing. The court noted that after-the-fact notificati on of the defendant, who had served his sentence, “would circumve nt the objective behind R.C. 2929.14(F) and 2967.28 to notify defendants of the imposition of postrelease control at the time of their sentencing.” Id. at ¶ 28. The court, therefore, gran ted the writ of habeas corpus, as the only appropriate remedy. {¶ 17} In response to Hernandez , the General Assembly enacted Am.Sub.H.B. 137, which became effective as an “emer gency measure” on July 11, 2006. The act8 amended R.C. 2929.19(B)(3)(c), to indicate that if a court imposes sentence on or after the effective date of the act, the court’s failure to notify an offender that he will be supervised under R.C. 2967.28 after he leaves prison, or to in clude a statement to that effect in the judgment of conviction “does not negate, limit, or otherwise affect the mandatory period of supervision that is required for the offe nder under division (B) of section 2967.28 of the Revised Code.” R.C. 2929.19(B)(3)(c). See, also , Legislative Analysis accompanying the Final Version of Am.Sub.H.B. No. 137, and Fiscal Note & Local Impact Statement, dated Mary 25, 2006. {¶ 18} As amended in 2006, R.C. 2929.19(B )(3)(e) also contained similar provisions regarding the effect of a trial court’s failure to notify an offender or to include a statement in the judgment of conviction about the possible prison term that can be imposed for violations of post -release control. However this pa rticular provision is qualified, to some degree, because it states that the trial c ourt’s failure does not negate the parole board’s authority to so impose a prison term for a vi olation, “if, pursuant to division (D)(1) of section 2967.28 of the Revised Code, the parole board notifies the offender prior to the offender’s release of the board’s authority to so impose a prison term.” The amendments also add the same basic lang uage to R.C. 2927.28(B) and (D)(1), and to R.C. 2929.14(F). {¶ 19} Am.Sub.H.B. No. 137 added a new section, R.C. 2929.191, which outlines procedures to be used to correct a judgment of conviction where a tria l court fails to notify an offender about post-release s upervision, or the possibility of the parole board imposing a prison sentence for violations of supe rvision or post-release control. {¶ 20} After the amendments became effective, the Ohio Supreme Court again9 considered a habeas petition. This time, the c ourt was asked to release twelve prisoners who were in prison for violatin g post-release control. See Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, ¶ 1. In Watkins , the Ohio Supreme Court did not specifically discuss the content of the sentencing hearings. However, each of the sentencing entries contained discretionary language regard ing the terms of post-release control, when post-release cont rol was, in fact, mandatory. Id. at ¶ 2-24, and 42. The court distinguished its prior decisions in Woods and Jordan , because those cases had focused on whether the prisoner had received proper notification at the sentencing hearing, not on the content of the entry. The court stressed that “Here, while not specifying the postrelease control as mandatory, the trial courts did at least notify the petitioners at their sentencing hearings that they could be s ubject to postrelease control.” Id. at ¶ 46. {¶ 21} The court stated that its prior decisions in Hernandez , 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, Gensley v. Eberlin , 110 Ohio St.3d 1474, 2006-Ohio-4474, 853 N.E.2d 313, and Adkins v. Wilson , 110 Ohio St.3d 1454, 2006-Ohio-4275, 852 N.E.2d 749, were more relevant, because the court in those cases had granted writs and had ordered prisoners released, where the sentencing entry contained no reference to post-release control.

Watkins at ¶ 48. Nonetheless, the Ohio Supreme Court distinguished these cases as well, stating that: While these entries erroneously refer to discretionary instead of mandatory postrelease control, they contain significantly more information than any of the sentencing entries held insufficient by the court in Hernandez (no reference to postrelease control), Adkins (no reference to postrelease control), and Gensley (vague10 reference about petitioner's understanding of possible pe nalties). Consequently, the sentencing entries are sufficient to afford notice to a reasonable person that the courts were authorizing postrelease control as part of each petitioner's sentence. A reasonable person in the position of any of the petitioners would have had sufficient notice that postrelease contro l could be imposed following the expiration of the person's sentence. Any challenge to the propr iety of the sentencing court's imposition of postrelease control in the entries could have been raised on appeal. The same

could not be said about the se ntencing entries at issue in Hernandez , Adkins , and Gensley

. Watkins at ¶ 51. {¶ 22} Accordingly, the court denied the petitions, because the prisoners had an adequate remedy by way of appeal. Id. at ¶ 53. {¶ 23} One month later, the Ohio Supr eme Court issued its decision in State ex rel. Cruzado v. Zaleski , 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263. Cruzado involved an action for a writ of prohibition that asked the Ohio Suprem e Court to vacate an entry resentencing a criminal defendant. Id. at ¶ 1. The defendant was originally sentenced in 2003, and was notified about post -release control and the penalty for violations both in the plea agreement and at the sentencing hearing. He was incorrectly told, however, that he would be subject to a five-year term, when he was only subject to three years of post-release

control. Id. at ¶ 7. Before the defendant’s se ntence expired, the trial court held a resentencing hearing, at which the defendant was informed of the mandatory three-year term and the possible penalties for violation. The j udge also filed a judgment entry reflecting

these facts. Id. at ¶ 10-11.11 {¶ 24} The Ohio Supreme Court noted that tr ial courts cannot r econsider their own valid judgments in criminal cases, subject to two exceptions – (1) trial courts can correct void sentences; and (2) they can also correct cler ical errors in judgme nts, but the correction is limited to “ ‘ “reflecting what the court actually decided, not what the court might or

should have decided.” ’ ” (Citations omitted.) Id. at ¶ 19. {¶ 25} The Ohio Supreme Court concluded that the error fell within the first exception, because the 2003 sentencing entry did not include the three-y ear post-release term required by statute. In this regard, the court again discussed voi dness, stating that: “Any attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void.” Beasley , 14 Ohio St.3d at 75, 14 OBR 511, 471 N.E.2d 774. “[W]here a sentence is void because it does not contain a statutorily mandated term, the pr oper remedy is * * * to resentence the

defendant.” State v. Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23. Cruzado at ¶ 20. {¶ 26} The Ohio Supreme Court distinguished Hernandez , because the trial judge

had advised Cruzado at both the plea and sentencing hear ing that he would be subject to mandatory post-release control. Consequen tly, the trial court had provided “some notice” that Cruzado would be subject to a multi-year term of control. Id. at ¶ 26. Furthermore, in contrast to the petitioner in Hernandez , Cruzado’s sentence had not yet expired when he was resentenced, and the trial court “was authorized to correct the invalid sentence.” Id. at ¶ 28. Accordingly, the trial court had juri sdiction, and the defenda nt had an adequate remedy by appealing from the resentencing. Id. at ¶ 32.12 {¶ 27} In July 2007, the Supreme Court of Ohio considered a case in which the

trial court failed to properly inform the defendant about post-release control at his sentencing hearing, but allowed for post-release control in the sentencing entry. State v. Bezak , 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 3. By the time the direct appeal from

the conviction and sentence reached the Ohio Supreme Court, the defendant had already served his prison term. Relying on Jordan , the Ohio Supreme Court held that the sentence was void and must be vacated, and the matte r must be remanded for resentencing. Id. at ¶ 12-13 and 16. The court stressed that “The effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment.” Id. at ¶ 12, quoting from Romito v. Maxwell, 10 Ohio St.2d 266, 267-268, 227 N.E.2d 223 (1967). {¶ 28} However, because the defendant had al ready served his term, the court held that he could not be subject to resentencing to correct the failure to impose post-release

control. The trial court was instructed to note this fact on the record. Id. at ¶ 18. {¶ 29} The Ohio Supreme Court continue d to apply the voidness doctrine in subsequent cases. See State v. Simpkins , 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 20-24 (defendant was informed of post-rel ease control, but entry did not impose it.

Defendant could be rese ntenced, because the sentence is voi d and he was still in prison), and State v. Bloomer , 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 27-28 (resentencing does not offend the Double Jeopard y or Due Process clauses. Jeopardy does13 not attach to a void sentence, and there is no reasonable, legitimate expectation of finality in a void sentence). {¶ 30} In Bloomer , the Ohio Supreme Court also considered and rejected a separation of powers challenge to R.C. 2929.191, based on the defe ndant’s failure to identify any existing rule of criminal procedure that conflicted with the statute. Id. at ¶ 39-43. And, in the case of one of the three defendants in Bloomer , the trial court failed to state the length of post-release control at the sentencing hearing and in the sentencing entry. Because the defendant had completed his prison term and had been releas ed, the court held that he

could not be resentenced. Id. at ¶ 69-70. {¶ 31} In Bloomer , the Ohio Supreme Court did brie fly consider the amendment to R.C. 2929.14(F), which as noted, indicates that failure to include a post-release control requirement in the sentence does not affect the mandatory period of control that is required for the offender under R.C. 2967.28(B). The cour t limited its analysis to observing that nothing in division (F) provide s that the executive branch could impose post-release control if the sentencing cour t has not ordered it. Id. at ¶ 72. {¶ 32} In State v. Singleton , 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, the Ohio Supreme Court considered the application of R.C. 2929.191, which provides a statutory mechanism for correcting sentences that fail to comply with statutory requirements for imposing post-release control. The court concluded that th e statute could not apply to sentences imposed before its effective date. In this re gard, the court observed that: We recognize the General Assembly's authority to alter our caselaw's characterization of a sentence lacking postrelease control as a nullity and to provide a mechanism to14 correct the procedural defect by adding postrelease control at any time before the defendant is released from prison. Howeve r, for sentences imposed prior to the effective date of the statute, there is no existing judgment for a sentencing court to correct. H.B. 137 cannot retrospectively a lter the character of sentencing entries issued prior to its effective date that were nullities at their inception, in order to render them valid judgments subject to corr ection. Therefore, for criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose postrelease control, the de novo sentencing procedure detailed in decisions of the Supreme Court of Ohio should be followe d to properly sentence an offender. Id. at ¶ 26. {¶ 33} The court further concluded that “[f]or criminal sentences imposed on and after July 11, 2006, in which a tr ial court failed to properly impose postrelease control, trial courts shall apply the procedur es set forth in R.C. 2929.191.” Id. at paragraph two of the syllabus. Three members of th e court dissented from the sec ond paragraph of the syllabus, contending that the question of whether R. C. 2929.191 is prospective was not before the court, because the only defendant in the case ha d been sentenced long before the statute was

enacted. Id. at ¶ 38 (Pfeifer, J., concurring in part and dissenting in part, and joined by Justices Moyer and O’Connor.) {¶ 34} The three dissenting justices also argued that R.C. 2929.191 was clear and limited its own application to sentences imposed prior to the effective date of the act. Id. at ¶ 39-48. They also remarked that R.C. 2929.191 was enacted “to fix sentencing mistakes of the past – mistakes that gained practical relevance only after” the court’s decisions in Jordan15 and Hernandez

. Id. at ¶ 48. Finally, the dissent noted that:

Amendments made to other statut es amended by Am.Sub.H.B. No. 137, Baldwin's Ohio Legislative Service A nnotated (Vol. 4, 2006) L–1911 (“H.B. 137”), make it clear that R.C. 2929.191 was intended to addr ess past mistakes. The intent of H.B. 137 was to make prospective postreleas e-control sentencing errors basically irrelevant. For example, R.C. 2929.14(F)(1 ) was amended by H.B. 137 to include this language: “If a court imposes a sentence including a prison term of a type described in this division on or after the effective date of this amendment, the failure of a court to include a post-release contro l requirement in the sentence pursuant to this division does not negate, limit, or otherwise affect the mandatory period of post-release control that is required for the offende r under division (B) of section 2967.28 of the

Revised Code.” The amendment to R.C. 2929.14(F)(1) then adds that R.C. 2929.191 applies to sentences imposed prior to the effective date of the act: “Section 2929.191 of the Revised Code applies if, prior to the effective date of this amendment, a court imposed a se ntence including a prison term of a type

described in this division and failed to include in the sentence pursuant to this division a statement regarding pos t-release control.” H.B. 137, L–1929. H.B. 137 similarly amended R.C. 2929.19( B) and 2967.28(B). All of these amendments attempt to make prospective mistakes nonprobl ematic and employ R.C. 2929.191 to address past errors. For th e General Assembly, the prospective16 application of R.C. 2929.191 was never a consideration. Singleton , 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, at ¶ 49-53 (Pfei ffer, J., concurring in part and dissenting in part). {¶ 35} Thus, at least in the minority vi ew, the amendments in Am.Sub.H.B. No.

137 were intended to ma ke post-July 11, 2006 sentencing erro rs “basically irrelevant.” Notably, the majority opinion did not address this point. {¶ 36} Subsequently, in State v. Ketterer , 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, the Ohio Supreme Court consider ed the validity of a nunc pro tunc entry

which was used to correct errors that had o ccurred when a three-judge panel resentenced a defendant for non-capital offenses. Id. at ¶ 65. The court noted that R.C. 2929.191 applied because the resentencing hearing occurred after July 11, 2006. Id. at ¶ 69. {¶ 37} The Ohio Supreme Court conclude d that the nunc pro tunc entry was ineffective because there was no indication in the record that a hearing, as required by R.C. 2929.191(C), had been conducted. Id. at ¶ 76. The court also di scussed several errors that occurred in notifying the defendant of pos t-release control – two took place at the resentencing hearing, and two were c ontained in the nunc pro tunc entry. Id. at ¶ 78. In this regard, the court stressed that: Viewed cumulatively, these errors on the part of the trial court cannot be considered

harmless. We have stated that “the c ourt must conduct proceedings in capital cases

with a strict level of care that com ports with their unique status.” State v. Clinkscale , 122 Ohio St.3d 351, 2009-Ohio-2746, 911 N.E.2d 862, ¶ 23. Accordingly, while the dissent is correct that it is highly unlikely that Ketterer will17 ever be subject to postrelease control, tria l courts in capital cases must scrupulously comply with the applicable statutes a nd rules, even those involving postrelease

control. Id. {¶ 38} One of the errors involved the c ontent of the nunc pro tunc entry. Concerning this matter, the court noted: The nunc pro tunc entry contains anothe r error, which Ketterer does not raise. The nunc pro tunc entry does not state that Ketterer was informed that if he violated his supervision or a condition of postrelease control, the parole board could impose a maximum prison term of up to one-half of the prison term originally imposed, which here is an aggregate 11 years. See R. C. 2929.19(B)(3)(e). Ketterer was correctly advised of this condition of postrelease c ontrol during the resentencing hearing. However, the nunc pro tunc entry incorrectly states, “The defendant is ordered to serve as part of this sentence any term of post release control imposed by the Parole Board, and any prison term for violation of that post release control.” Thus, the nunc pro tunc entry should be amended to incorporate the correct language of this rule. See R.C. 2929.191(B)(1). Ketterer at ¶ 77. {¶ 39} Based on the Supreme Court decisi ons up to this date (August 2010),

several conclusions could be reached: {¶ 40} (1) De novo sentencing procedures apply to sentences imposed before July 11, 2006, because the failure to notify a defendant of the imposition of post-release control renders the sentence void, and the sentence is null, as if it had never occurred; (2) R.C. 2929.191 applies to sentences imposed after July 11, 2006, and a hearing is required; (3)18 The legislature attempted to make post-release control errors irrelevant when it enacted Am.Sub.H.B. 137; (4) Courts should include provi sions in their sentencing entries that specifically discuss the imposition of prison terms for violating post-releas e control, but it is possible that the failure to include such a te rm in a non-capital case is subject to a harmless error analysis, meaning that if the trial court properly instructs the defendant at the sentencing hearing as to the imposition of post-release control and the penalties for violating it, no harm has been done; (5) If the defendant has been released from prison without having been notified of post-release control, he ca nnot be resentenced. However, the cases in

which this has occurred are those where the court failed to notify the defendant at the sentencing hearing that post-release contro l was being imposed. Where the defendant received some notice, even if not totally accurate , habeas or prohibition, at least, will not be used to rectify the situation, because the defenda nt had an adequate reme dy at law by way of appealing the sentence. {¶ 41} Clark was resentenced in Septembe r 1, 2010. Under the existing law, his sentence was void and he was subject to the de novo sentencing provisions that had been outlined by the Ohio Supreme Court. R.C. 2929.191 would not apply to the resentencing, because Clark was originally sentenced prior to July 11, 2006. At the hearing, the trial court applied complete de novo sentencing by dismissing one count (the three-year firearm specification), increasing the sent ence for the remaining count from eight years to ten years, and imposing post-release control. The cour t properly notified Clark about post-release control and the penalties for violations during the sentencing hearing, but the sentencing entry fails to incorporate the specific terms of the penalties for violating post-release control.19

{¶ 42} Under the applicable law at that time, Clark’s sentence, if challenged further, was a new sentence, imposed afte r July 11, 2006, and any corrections to that sentence would be governed by R.C. 2929.191. If the amendments to the statutes control and do not violate some constitutional provision like due process (which has not been raised), the failure to put specific language a bout the violation in the sentencing entry would be irrelevant. Similarly, if a “harmless error” analysis potentially applies, no harm has been done, because Clark was properl y notified of the imposition of post-release control and the penalties for a violation during the sentencing hearing, and he could have appealed from that judgment. The law has con tinued to evolve, however, cas ting doubt on these conclusions.

B. Changes in the Law After Clark was Resentenced {¶ 43} After Clark was resentenced, the Ohio Supreme Court issued its decision in State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. The court noted that

its statements of law about void and voidabl e judgments had “sparked a recurrent and increasingly divisive debate in our case la w on sentences that fail to properly impose postrelease control in accordance with the terms mandated by the General Assembly.” Id. at ¶ 6. The Ohio Supreme Court insisted on retaining the voidness concept, but also relied on the related concept of the “illegal sentence doctrine” to hold that “when a judge fails to impose statutorily mandated postreleas e control as part of a defenda nt's sentence, that part of

the sentence is void and must be set aside.” Id. at ¶ 26. However, res judicata applies to the other aspects of the merits of the c onviction, and the scope of the appeal from20 resentencing in which “a mandatory term of post-release control is imposed is limited to issues arising at the resentencing hearing.” Id. at ¶ 40.

{¶ 44 } Shortly after Fisher was decided, the Ohio Supreme Court issued its

decision in State ex rel. Womack v. Marsh , 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d

1010. In Womack , the trial court had imposed the proper term of post-release control at the sentencing hearing, but had inco rrectly referred to a different term in the sentencing entry. Upon the defendant’s request for a de novo hearing, the trial court filed an entry correcting the error, rather than holding a hearing. Id. at ¶ 3-4. The Ohio Supreme Court concluded that a new sentencing hearing was not required, because the defendant was properly notified at the sentencing hearing of the correct term, and the failure to include the post-release term in the sentencing entry was “clerical.” The trial court, therefore, could use a nunc pro tunc entry to correct the error. Id. at ¶ 14. 1

1 Womack was a pre-July 11, 2006 case, so R.C. 2929.191 did not apply. {¶ 45} Another major decision in this group of cases from the Ohio Supreme Court is State v. Qualls , 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718. Qualls involved an offender who had been properly no tified about post-release contro l at his sentencing hearing in 2002. However, the sentencing entry fa iled to contain language indicating that

notification was made. Id. at ¶ 1. In 2010, the trial court corrected the omission using a nunc pro tunc entry and denied the defendant’s request for a de novo sentencing hearing.

Id. {¶ 46} Relying on Womack , the Ohio Supreme Court held that no new sentencing hearing was required and that the mistake could be corrected using a nunc pro tunc entry. The court21 reasoned that notification was pr operly given in the sentencing hearing and the error in the sentencing entry was “merely clerical in nature.” Id. at ¶ 14. The court further noted that the nunc pro tunc entry related back to the or iginal sentencing entry and did not extend the time to file an appeal. Id. {¶ 47} In discussing the issues, the court noted two important principles in its post-release control precedents. The first was that “unless a sentencing entry that did not include notification of the imposition of postrelease c ontrol is corrected before the defendant completed the prison term for the offense for which postrelease control was to be imposed, postrelease control cannot be imposed.” Id. at ¶ 16. The court concluded that this principle was not at issue due to the lengthy te rm the defendant was serving. Thus, even if the court reversed and remanded for a new sentencing hearing, the trial court would still be able to timely issue the new sentencing entry. Id. at ¶ 17. {¶ 48} The second principle was the importance of notification. In this regard, the court stressed that its main focus in interpreting the sentencing statutes on post-release control “has always been on the notification itself and not the sentencing entry.” Qualls at ¶ 19. The court distinguished its prior decisions in Jordan and Singleton because “ notification of postrelease control was not proper in either of those cases.” (Emphasis sic.) Id. at ¶ 21. In addition, the court distingu ished many of its other post -release control precedents by stating that: In no previous case in which a sentencing entry was silent as to postrelease control have we specifically considered the significance of proper postrelease-control notification at the sentencing hearing. Mo reover, we have not specifically evaluated22 the efficacy of a trial court's use of a nunc pro tunc entry to correct a deficient sentencing entry when the sole error in imposing postrelease control was the failure to incorporate the notification that was given at the sentencing hearing into the entry

of conviction. Id. {¶ 49} The court went on to note that: Here, where notification was properly given at the senten cing hearing, there is no substantive prejudice to a defendant if th e sentencing entry's failure to mention postrelease control is remedied through a nunc pro tunc entry. Our precedents requiring a new sentencing hearing (eith er de novo or limited) to correctly impose postrelease control do not apply to this s ituation. The rationale underlying those

decisions is that a sentence that does not properly impose postrelease control is void, and a remand for a new sentencing hearing is necessary, because the trial court's erroneous imposition of postrelease control mu st be corrected in a new hearing at which the defendant is present to receive notification that complies with the statutes. See, e.g., Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 17 and

23. But when the notification of postreleas e control was properly given at the sentencing hearing, the essential purpose of notice has been fulfilled and there is no need for a new sentencing hearing to remedy the flaw. The original sentencing entry

can be corrected to reflect what actually took place at the sentencing hearing, through a nunc pro tunc entry, as long as th e correction is accomplished prior to the defendant's completion of his prison term. Qualls at ¶ 23-24.23 {¶ 50} Finally, the court conc luded – despite the fact that R.C. 2929.191(C) requires hearings – that its decision “by its nature app lies to those postrelease- control cases involving an omission of the type that occurred here, wit hout regard to whether the sentencing hearing

was held after the effective date of R.C. 2929.191 or held prior to the effective date of that

statute * * *.” Id. at ¶ 29. {¶ 51} In view of the Supreme Court’s comments in Qualls , we could conclude that the sentencing entry in the case before us could have been corrected by nunc pro tunc entry before Clark was released from prison, becau se Clark was properly informed at the sentencing hearing about the imposition of post-release control and the penalties for

violations. We could then also conclude that the entry could not be co rrected at this point, and that Clark is not subject to post-release c ontrol, because he has already been released from prison. However, several fact ors undermine that analysis. {¶ 52} First, at ¶ 16 of its opinion in Qualls , the Ohio Supreme Court referred to both Hernandez, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, and Watkins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78. The court observed that in Hernandez , the

defendant had received no notifi cation about post-release contro l, and post-release control could not be imposed after he had completed his prison term. Qualls , 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 16. However, the court then invited a comparison

between Hernandez and Watkins , noting that in Watkins , “when a sentencing entry made some reference to postrelease control, any defici encies in the entry could have been raised on appeal, and postrelease control can be imposed upon the defendant's release from prison.”

Id.24 {¶ 53} As was noted, Watkins involved a number of violators who sought to be released from prison because they had not been properly sentenced to post-release control. Their sentencing entries indicated that post-release control was discretionary rather than mandatory. Watkins at ¶ 46 and 51. Several sentencing entries in Watkins are also similar to the entry in the case before us, in that they do not refer to specific terms that could be imposed for violations of post-release control. Instead, the entries refer to the fact that the defendant was subject to the consequences of violating post-release control under R.C. 2967.28, and that the defendant wa s ordered to serve any prison term imposed for the

violation. See , id ., at ¶ 3, 9, 13, 14, 15, and 24. Again, the Supreme Court noted in Watkins that: [T]he sentencing entries are sufficient to a fford notice to a reasonable person that the courts were authorizing postrelease control as part of each petitioner's sentence. A reasonable person in the position of any of the petitioners would have had sufficient notice that postrelease contro l could be imposed following the expiration of the person's sentence. Any challenge to th e propriety of the sentencing court's imposition of postrelease control in the entr ies could have been raised on appeal.

The same could not be sa id about the sentencing entries at issue in Hernandez , Adkins , and Gensley

. Watkins at ¶ 51. {¶ 54} Without explicitly abandoning the voidne ss doctrine or directly acknowledging a departure, the Ohio Supreme Cour t nonetheless seems to suggest in Qualls that if proper notification of post-release contro l is given during the sentencing hearing, and if some form of post-release control is imposed in the sent encing entry, the defendant is on notice that25 post-release control will be imposed following release from prison. Post-release control can, therefore, be imposed, desp ite technical defects in the entry. This appears to be

consistent with the view that Am.Sub.H.B . No. 137 was intended to make “prospective mistakes nonprobl ematic.” Singleton , 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, at ¶ 49-53 (Pfeiffer, J., concurring in part and dissenting in part). Again, however, the

law has continue d to evolve.

C. Post- Qualls Jurisprudence {¶ 55} Consistent with Qualls , the Ninth District Cour t of Appeals in 2012 upheld imposition of post-release control despite technical deficiencies in the sentencing entry. See State v. Lynch , 9th Dist. Lorain No. 11CA010031, 2012-Ohio-2975. 2

2 Subsequently overruled, see ¶ 64, infra. {¶ 56} The defendant in Lynch was originally sentenced in 2002, and a resentencing hearing was held in 2008, to addre ss the defendant’s claim that the trial court had failed to properly impos e post-release control. Id. at ¶ 2. The defendant did not dispute that the trial court had properly notified him of post-release control at the resentencing hearing. Instead, he challenged the language used in the sentencing entry, which provided that he was subject to “up to a maximum of five years post-release control.”

Id. at ¶ 2 and 10. Unlike Clark, the defendant in Lynch did file an appeal from the resentencing. After that appeal was unsuccessful, the defendant served the rest of his prison sentence and then filed a motion to terminate post-release control, contending that the control had not been properly imposed. Id. at ¶ 3. The trial court denied the motion, and26 the defendant appealed. {¶ 57} The Ninth District C ourt of Appeals discussed Qualls , and noted that “[t]he issue of whether postrelease control that was imp roperly imposed in a sentencing entry could be imposed after an offender's release fro m prison was not directly implicated in Qualls .” Id. at ¶ 12. Nonetheless, the Ninth District Court of App eals concluded that the Ohio Supreme Court had discussed the issue, and ha d distinguished between “sentencing entries that made no reference to postrelease control and those that incorrectly set forth the terms of post-release control.” Id. , referring to the distinction in Qualls at ¶ 16, between Hernandez, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, and Watkins , 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78. Based on the case’s similarity to Watkins , the Ninth District Court of Appeals conc luded that the sentencing entr y “contained sufficient language to authorize the Adult Parole Authority to exer cise post-release contro l over the defendant.”

Id. at ¶ 14. Accordingly, the court affirmed the denial of the defendant’s motion to terminate post-release control. Id. at ¶ 15. {¶ 58} Other districts have also taken a flexible approach to errors in post-release control entries. For example, in State v. Bartee , 8th Dist. Cuyahoga No. 97411, 2012-Ohio-3944, post-release control was mandatory , but the trial court used the phrase “if postrelease control is imposed” in the entry. Id. at ¶ 17. The Eighth District Court of Appeals considered the use of the word “if” to be a case of “form over substance” not requiring a new sentencing hearing, where no tification of post-releas e control was properly given at the sentencing hearing. Id. at ¶ 18, citing State v. Harris , 4th Dist. Pickaway No. 11CA15, 2012-Ohio-2185, and Qualls , 131 Ohio St.3d 499, 2010-Ohio-1111, 967 N.E.2d27 718. Notably, the Eighth District Court of A ppeals did not even direct the filing of a nunc pro tunc entry to correct the alleged error, presumably because the court concluded that no error existed, or that if error existed, it was harmless. Id. {¶ 59} We also note that since Septem ber 2010, the Tenth District Court of Appeals has followed an approach that purports to apply Ohio Supreme Court precedent and concludes that “the trial court sufficiently fulfilled its statutory obligations when its oral and written notifications, taken as a whole, properly informed the defendant of post-release

control.” State v. Boone , 2012-Ohio-3653, 975 N.E.2d 546, ¶ 18 (10th Dist.), citing State v. Mays , 10th Dist. Franklin No. 10AP-113, 2010-Ohio-4609, appeal not allowed , 127 Ohio St.3d 1535, 2011-Ohio-376, 940 N.E.2d 987, and State v. Townsend , 10th Dist. Franklin No. 10AP–983, 2011-Ohio-5056. The Tenth District C ourt of Appeals describes this as a “ ‘totality of the circumstances’ ” test, which considers a combination of: (1) judgment entries that alone may be insufficient to properly impose post-rel ease control; (2) other documents in the record like plea agreements; and (3) sentencing hearing transcripts.

Boone at ¶ 25. {¶ 60} Boone was decided after the Ohio Supreme Court issued the decision in Qualls . In Boone , the defendant had been originally sentenced in 1997, and was told at the sentencing hearing that he was subject to a period of post-release c ontrol of “up to” five years. He was also told of the consequen ces of a violation. Th e “Prison Imposed” notice the defendant signed at the hearing did not sp ecify whether the period was discretionary or mandatory, but did spell out the ma ndatory nature of the term in a “note” at the bottom of the

page. Id. at ¶ 3-4. The notice also warned of th e specific consequences for violations. Id.28 In its judgment entry, the trial court simply recited that the defendant had been notified orally and in writing of the applicable periods of post-release control. Id. at ¶ 5. Subsequently, the trial court twice overruled the defendant’s motions for resentencing, stating that the sentence would be modifi ed, if required, prior to his release. Id. at ¶ 6-7. {¶ 61} After discussing various cases applying the “totality of the circumstances” test, the Tenth District Court of Appeals noted the statement in Qualls that the Ohio Supreme Court’s “ ‘main focus in interpreting the sentencing statutes regarding postrelease control has always been on the notification itself and not on the sentencing entry.’ ” Id. at ¶ 22, quoting from Qualls , 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 19. {¶ 62} Ultimately, the Tenth District concluded that the defendant had been properly notified under the totality of the circ umstances. Furthermore, although the trial court had mistakenly informed th e defendant that his term of post-release control was “up to five years,” when the correct figure was three years mandatory, the court held that “the

mistake did not render the judgment void.” Id. at ¶ 28. In this regard, the court noted that: [E]ven though the phrase “up to” has “dis cretionary” connotati ons, mistaken use of such language does not rende r defendant's post-release c ontrol notification void. * * * Thus, a sentencing entry incorporating post -release control as part of the sentence, but mistakenly including “up to” language, is [a] “non-jurisdic tional” defect and concerns, “at most, voidable error that should be rais ed on direct appeal.” Id. at ¶

30. {¶ 63} The Tenth District Court of Appeal s thus concluded th at the appropriate remedy was for the defendant to challenge the sentence on direct appeal from his original29 conviction, and since he had not done so, he was barred from raising the claims by res judicata. Id. at ¶ 34. {¶ 64} Very recently, the Supreme Court reversed Lynch . See Lynch , No. 2012-1361, 2012-Ohio-5730 (Dec. 6, 2012), at ¶ 1. This was based on State v. Billiter , No. 2011-1501, 2012-Ohio-5144 (Nov. 7, 2012), which he ld that a defendant is not barred by principles of res judicata from collatera lly attacking his sentence (and a subsequent conviction for escape based on the void post-release control portion of the original case), if a trial court improperly senten ces a defendant to a term of post-release control. Id . at ¶ 1. Thus, we assume that portion of Boone concerning res judicata wa s also overruled, albeit sub

silentio. {¶ 65} Billiter involved a defendant who had orig inally been sentenced in 1998 to “up to” a maximum of post-release control rath er than the five years required by R.C. 2967.28(B). 2012-Ohio-5144, at ¶ 2. The defendant, Billiter, did not appeal that sentence, and was released from prison in 2001. Af ter being released, Billiter was placed on post-release control and complied with the terms for nearly three years, when he was indicted on a charge of escape from his post-release control detention. Id . at ¶ 3 and 12. After pleading guilty to this charge, Billiter wa s placed on community control. He did not appeal this sentence. Id . at ¶ 3. Billiter almost immediately violated the terms of his community control. His community control wa s then revoked, and he was sentenced to six years in prison on the escape charge. Billiter again did not appeal. Id . at ¶ 4. {¶ 66} Almost four years later, Billiter filed a pro se motion to vacate his conviction on the escape charge, alleging that the post-release control portion of his 199830 sentence was void and that, accordingly, he was innocent of the escape charge. Id . at ¶ 5. The motion was denied, and the Fifth District Court of Appeals affirmed the denial. Billiter did not appeal to the Ohio Supreme Court for discretionary jurisdiction. Id . Subsequently, in 2010, Billiter filed a second motion, this time th rough counsel, and again argued that he had never legally been placed on post-release cont rol. This motion was also denied, and the Fifth District Court of Appeals a ffirmed and certified a conflict. Id . at ¶ 6. {¶ 67} In a four-to-three decision, Billiter concluded that: [T]he 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, 942 N.E.2d 332, paragraph one of the syllabus. The trial court's incorrect sentence for postrel ease 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-Ohio-6085, 817 N.E.2d 864, ¶ 17. Although the Adult Parole Authority actua lly 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 es cape conviction was based on an invalid sentence. Accordingly, the trial court wa s without jurisdiction to convict him on the escape charge. Billiter , 2012-Ohio-5144, at ¶ 12. {¶ 68} In its decision, the court did not discuss Qualls or other prior potentially conflicting opinions. Instead, the majority noted that: As we have consistently stated, if a trial court imposes a sentence that is unauthorized by law, the sentence is void. “ ‘The effect of determining that a31 judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment.’ ” Bezak , 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 12, quoting Romito v. Maxwell , 10 Ohio St.2d 266, 267–268, 227 N.E.2d 223 (1967). ( Bezak was later modified by State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph two of the syllabus.) We said in

Fischer 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.” I d. at paragraph one of the syllabus.

Fischer applies to every criminal convicti on, including a collateral attack on a void sentence that later results in a guilty plea to the crime of escape. Billiter at ¶10-11. {¶ 69} Two members of the dissent commented on the “quagmire created in the

void/voidable line of cases.” Id . at ¶ 15. Among other things, the dissent noted that “commentators have begun questi oning this court's jurisprude nce in the area,” and observed

that: [D]espite the majority's statement that its decision is consistent with previous cases, recent history has shown that the court has b een anything but clear and consistent in its postrelease-control cases, in which it ha s followed various lines of reasoning only to change or reverse course when the consequences of this reasoning become

unworkable. Id . at ¶ 20. {¶ 70} Another dissenting justice focused on the fact that the trial court did, in fact,32 impose post-release control, even though the time imposed was less than required by

statute. Id. at ¶ 33. This dissent stressed that th e defendant had received notice, “both at the sentencing hearing and in the sentencing entr y, that he would be supervised by the Adult Parole Authority for up to three y ears after his release from prison.” Id. at ¶ 34. {¶ 71} In Jordan , the court had not notified the defe ndant of post-release control at the sentencing hearing. In Hernandez , Billiter , Boone , and Lynch , the courts had imposed an unlawful sentence. When the courts imposed the wrong term of post-release control, they “fail[ed] to impose statutorily mandated postrelease control as pa rt of a defendant’s

sentence.” Fisher , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 26. In Qualls , the trial court had imposed the correct post -release control, but di d not indicate in the sentencing entry that the notification had been made. {¶ 72} In Clark’s situation, the trial cour t imposed the correct lawful term of post-release control and informed him of the correct specific penalties for violating post-release control. In the sentencing entr y, the court again imposed the proper lawful term of post release control and ordered the defendant to serve any post-release control ordered by the Parole Board and any prison term for violation of that post-release control. {¶ 73} The sentencing entry was “sufficient to afford notice to a reasonable person that the courts were authorizing postrelease control.” Watkins , 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, at ¶ 51. We do not dispute Billiter’s holding that a void sentence can be attacked at any time. We simply hold that Clark’s original sentence was not void; there is no need for a subsequent entry, even if the appellant were still in custody. {¶ 74} Accordingly, the assignment of erro r is overruled, and the judgment of the33 trial court is Affirmed.

III. Conclusion {¶ 75} The judgment of the trial court is Affirmed.

. . . . . . . . . . . . . HALL, J. and CELEBREZZE, J., concur. (Hon. Frank D. Celebrezze, Jr., Eighth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio). Copies mailed to:

Lisa M. Fannin Melissa M. Prendergast Hon. Richard J. O’Neill