[Cite as State v. Burns, 2012-Ohio-1626.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

HIGHLAND COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 11CA19 

 : 

 vs. : Released: March 30, 2012 

 : 

STEPHAN L. BURNS, : DECISION AND JUDGMENT 

 : ENTRY

 Defendant-Appellant. : 

_____________________________________________________________ 

APPEARANCES:

Conrad A. Curren, Greenfield, Ohio, for Appellant. 

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for 

Appellee. 

_____________________________________________________________ 

 

McFarland, J.: 

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

Pleas decision and entry denying Appellant’s motion to vacate the post 

sentence control portion of his sentence, which was imposed by the 

Highland County Court of Common Pleas as a result of a violation of post 

sentence control originally imposed in Brown County. On appeal, Appellant 

contends that 1) the trial court erred to his detriment when it found the nunc 

pro tunc issued by the Brown County court valid; and 2) the trial court erred 
Highland App. No. 11CA19 2

to his detriment by refusing to vacate the part of his sentence that is based on 

a void post release control sanction. 

{¶2} In light of our conclusion that the Brown County Court failed to 

properly impose post release control when it originally sentenced Appellant 

in 2004, as well as our conclusion that the post release control portion of that 

sentence was void as a result, the Highland County court’s denial of 

Appellant’s motion to vacate is reversed, and that part of the judgment of the 

Highland County trial court imposing a 34 month sentence for the post 

release control violation is vacated. Thus, Appellant’s first and second 

assignments of error are sustained. Accordingly, this cause is remanded to 

the trial court with instructions to notify the appropriate authorities of the 

modified sentence. Further, Appellant is ordered to be discharged 

immediately. 

FACTS 

{¶3} On February 11, 2004, in Brown County Court of Common 

Pleas Case No. 2003-2167, Appellant pled guilty and was convicted of five 

counts of sexual battery, in violation of R.C. 2907.03(A)(9), all felonies of 

the third degree. On June 9, 2004, the Brown County court sentenced 

Appellant to stated prison terms of three years on each offense, to be served 

concurrently. During the sentencing hearing, the trial court notified 
Highland App. No. 11CA19 3

Appellant that he would be subject to a mandatory five year period of post 

release control; however, the sentencing entry stated that post release control 

would be “mandatory in this case up to five years[.]” (Emphasis added). 

There is no information in the record before us on appeal indicating that 

Appellant directly appealed from his convictions and sentences issued in the 

Brown County court in 2004. Further, the record indicates that Appellant 

was released from prison in 2007 and was placed on post release control. 

{¶4} While serving the term of post release control imposed in 

connection with the Brown County conviction, on June 19, 2009, Appellant 

pled guilty to grand theft, a fourth degree felony, in the Highland County 

Court of Common Pleas. On August 5, 2009, the Highland County court 

sentenced Appellant to seventeen months on the grand theft conviction, as 

well the balance of the five years of post release control on the post release 

control violation, which was 1019 days, or approximately 34 months. There 

is no indication that Appellant directly appealed from these convictions or 

sentences. 

{¶5} However, on August 30, 2010, Appellant filed a motion for 

resentencing and to vacate a void judgment of conviction in the Highland 

County Court of Common Pleas. In his motion, Appellant asserted that his 

34 month sentence stemming from the post release control violation should 
Highland App. No. 11CA19 4

be vacated, arguing that the original imposition of post release control by the 

Brown County court was void. Specifically, Appellant argued that because 

his sentencing entry stated that he would be subject to post release control 

“up to” five years rather than a mandatory five year term, it was improperly 

imposed and therefore void. The State opposed the motion, contending it 

was an improper collateral attack on the Brown County sentence, which the 

Highland County court had no jurisdiction to address. The trial court denied 

Appellant’s motion on October 13, 20101

, agreeing with the State that the 

only remedy for a void sentence in Brown County must lie in Brown 

County. 

{¶6} As such, Appellant subsequently filed, in the Brown County 

Court of Common Pleas, a motion for determination that the 2004 

sentencing entry was void. In response, the Brown County court held a 

hearing on January 5, 2011, nearly four years after Appellant had been 

released from prison on the Brown County conviction, where it 

acknowledged that the 2004 sentencing entry “did not properly state the 

necessary language required by the statute for imposition of Post Release 

Control.” The court went on to state, however, that “the proper action, as 

 

1

 It appears this exact entry was filed a second time on November 16, 2010, due to an error in the clerk’s 

office. 
Highland App. No. 11CA19 5

clarified by State v. Fischer,

2

 is to correct only the post release portion of 

said entry nunc pro tunc.” The court then went on to re-sentence Appellant 

to a mandatory five year term of post release control via a nunc pro tunc 

entry and remanded him for return to the Ohio Department of Corrections. 

{¶7} On January 21, 2011, Appellant filed another motion in the 

Highland County court, entitled motion to vacate a void judgment. In the 

motion, Appellant explained that since the original denial of this motion by 

the Highland County Court, Appellant had sought redress in Brown County. 

In the motion, Appellant explained that the Brown County court vacated the 

original 2004 imposition of post release control and re-sentenced him, but 

that the re-sentencing was in error as his underlying prison term had already 

expired. The State opposed the motion. The Highland County court 

appointed counsel for Appellant and held two hearings on the motion. In its 

June 8, 2011, decision and entry denying Appellant’s motion to vacate the 

post release control portion of the sentence, the trial court essentially 

determined that Appellant had waived the error related to the imposition of 

post release control by failing to file a direct appeal from the 2004 decision, 

and that because the 2004 sentencing entry mentioned post release control, 

Appellant was sufficiently put on notice and should have filed a direct 

 

2 State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332 
Highland App. No. 11CA19 6

appeal. The trial court relied on State ex rel. Pruitt v. Cuyahoga Cty. Court 

of Common Pleas (2010), 125 Ohio St.3d 402, 2010-Ohio-1808, 928 N.E.2d 

722, in reaching this decision. It is from this decision and entry that 

Appellant now brings his timely appeal, setting forth two assignments of 

error for our review. 

ASSIGNMENTS OF ERROR 

“I. THE TRIAL COURT ERRED TO THE DETRIMENT OF THE 

DEFENDANT WHEN IT FOUND THE NUNC PRO TUNC 

ISSUED BY THE BROWN COUNTY COURT VALID. 

II. THE TRIAL COURT ERRED TO THE DETRIMENT OF THE 

DEFENDANT BY REFUSING TO VACATE THE PART OF THE 

APPELLANT’S SENTENCE THAT IS BASED ON A VOID POSTRELEASE CONTROL SENTENCE.” 

LEGAL ANALYSIS 

{¶8} As Appellant’s assignments of error are interrelated, we address 

them in conjunction with one another. On appeal, Appellant contends that 

the Highland County Court of Common Pleas erred to his detriment by 

finding the nunc pro tunc entry issued by the Brown County Court of 

Common Pleas to be valid, and also by refusing to vacate the part of the 

Highland County sentence that is based upon a void post release control 

sentence. Specifically, Appellant contends that the Brown County court did 

not properly sentence him on post release control, which resulted in that part 

of the sentence being void. Appellant also contends that the sentencing error 
Highland App. No. 11CA19 7

in Brown county could not be corrected with a nunc pro tunc order because 

Appellant’s underlying sentence had expired at the time of the attempted 

correction and as such, the Brown county court no longer had jurisdiction 

over him. Appellant further contends that the Highland County Court of 

Common Pleas’ post release control sanction should be vacated because it 

was erroneously based upon a void sentence. Based upon the following, we 

agree with Appellant and therefore sustain his arguments raised on appeal. 

{¶9} A situation very similar to the one sub judice was recently 

addressed by the Second District Court of Appeals in State v. Portis, Clark 

App. No. 2010-CA-95, 2011-Ohio-2429. Much like the facts herein, in 

Portis, the trial court failed to properly impose post release control in 2004, 

by stating in the sentencing entry that post release control was mandatory 

“up to a maximum of three years” rather than “three years.” Id. at ¶ 5. After 

completing his two year sentence, Portis committed a new felony in 2007 

and was sentenced on the new felony, as well on the post release control 

violation. Id. at ¶ 6. Portis filed a direct appeal from this conviction and 

sentence, but did not raise any issues regarding the original imposition of 

post release control. However, Portis later filed a motion to vacate the 

sentence based upon the post release control violation. Id. In support of his 

motion, Portis argued that because the trial court had not properly imposed 
Highland App. No. 11CA19 8

the post release control sanction in 2004, it was void. The trial court denied 

Portis’ motion. Id. at ¶ 7. On appeal, however, the trial court’s decision was 

reversed and the part of the sentence based upon the post release control 

violation was vacated. Id. at ¶ 19. 

{¶10} In reaching its decision, the Portis court reasoned as follows: 

“Portis's argument is simple. He argues that the trial court, in the 2004 

Robbery case, was required to impose post-release control for a period of 

three years, not ‘up to’ three years. He relies upon State v. Bezak, 114 Ohio 

St.3d 94, 2007-Ohio-3250, for the proposition that an improperly imposed 

sentence of post-release control is not merely voidable, but void. 

State v. Bezak, supra, was modified in State v. Fischer, 128 Ohio St.3d 

92, 2010-Ohio-6238, but only to the extent that it is just the post-releasecontrol part of the sentence - not the rest of the sentence, and not the 

underlying conviction - that is void because it is defective. In State v. 

Fischer, supra, the Supreme Court of Ohio stated its holding in its opening 

paragraph: 

‘ * * * A sentence that does not include the statutorily mandated term 

of postrelease control is void, is not precluded from appellate review by 

principles of res judicata, and may be reviewed at any time, on direct appeal 

or by collateral attack. Although the doctrine of res judicata does not 

preclude review of a void sentence, res judicata still 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 ¶ 1. 

This holding is clear enough, and forces us to reject the State's 

argument that Portis is barred from challenging the propriety of the postrelease control imposed in the 2004 case by virtue of res judicata, because he 

could have, but did not, raise that issue in his direct appeal from the sentence 

imposed in his 2007 case, which included a one-year sentence for the postrelease control violation.” Id. at ¶¶ 11-14. 
Highland App. No. 11CA19 9

{¶11} We are persuaded by the sound reasoning of the Second District 

Court of Appeals and conclude that the issue presented sub judice demands 

the same result. Having determined that Appellant’s post release control 

sanction was void, he was not on post release control at the time of his 

felony offense in 2009 in Highland County.3

 Further, by the time the Brown 

County court attempted to re-sentence Appellant and issued its nunc pro tunc 

entry, Appellant’s prison term had long since expired. As a result, the 

Brown County court no longer had jurisdiction over Appellant and could no 

longer correct the sentencing error that occurred in 2004. See State v. Ables, 

Mercer App. No. 10-11-03, 2011-Ohio-5873 at ¶ 8; citing State v. Bloomer, 

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

Bezak, supra, at ¶ 18; and State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio1197, 884 N.E.2d 568, at the syllabus. 

{¶12} Further, although the State and the Highland County court were 

both concerned about the jurisdictional issues related to addressing the 

Brown County court’s actions, we conclude Fischer provides us with 

 

3

 In its June 8, 2011, decision and entry denying Appellant’s motion to vacate, the Highland County Court 

of Common Pleas stated that despite the error in the original Brown County 2004 sentencing entry, it 

believed Appellant was properly sentenced to post release control, citing State ex rel. Pruitt v. Cuyahoga 

County Court of Common Pleas, 125 Ohio St.3d 402, 2010-Ohio-1808, 928 N.E.2d 722, in support. 

However, in Pruitt, the Court denied a complaint for a writ of mandamus seeking issuance of a revised 

sentencing entry, based upon the reasoning that the “sentencing entry sufficiently included language that 

postrelease control was part of [the Appellant’s] sentence so as to afford him sufficient notice to raise any 

claimed errors on appeal rather than by extraordinary writ.” Id. at ¶ 4. As Pruitt dealt with a mandamus 

action, we do not find its reasoning applicable to the facts sub judice. 
Highland App. No. 11CA19 10

authority to cure the error in sentencing that occurred in Highland County in 

2009. Specifically, as set forth above, the Supreme Court, in State v. 

Fischer, stated that “ * * * A sentence that does not include the statutorily 

mandated term of postrelease control is void, is not precluded from appellate 

review by principles of res judicata, and may be reviewed at any time, on 

direct appeal or by collateral attack.” Id. at ¶ 1 (Emphasis added). Thus, 

we have the authority to recognize the Brown County court’s sentencing 

entry to be void with respect to its attempted imposition of post release 

control, despite the fact that Appellant has attacked its validity collaterally 

through the Highland County Court of Common Pleas. “It follows that any 

sentence imposed as a sanction for a violation of that post-release control is 

also void, and subject to vacation.” State v. Portis at ¶ 19; citing State v. 

Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 192; relying on 

State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. 

{¶13} Accordingly, Appellant’s arguments are sustained and the trial 

court’s judgment denying Appellant’s motion to vacate is reversed. As such, 

that part of the Highland County judgment imposing sentence on the post 

release control violation is vacated and this cause is remanded to the trial 

court with instructions to notify the appropriate authorities of the modified 
Highland App. No. 11CA19 11

sentence. Portis at ¶ 21. Further, Appellant is ordered to be discharged 

immediately. 

JUDGMENT VACATED AND CAUSE 

REMANDED. 
Highland App. No. 11CA19 12

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE VACATED AND CAUSE 

REMANDED and that the Appellant recover of Appellee costs herein taxed. 

 The Court finds there were reasonable grounds for this appeal. 

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

Highland 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. 

Harsha, J. and Kline, J.: Concur in Judgment and Opinion. 

 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.