Court of Appeals of Ohio, Eleventh District, Ashtabula
Appeal from the Ashtabula County Court of Common Pleas. Case
No. 2007 CR 00216. Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley
M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse,
25 West Jefferson Street, Jefferson, OH 44047-1092 (For
Timothy A. Hall, pro se, PID: A541-369, Allen Correctional
Institution, P.O. Box 4501, 2338 North West Street, Lima, OH
TIMOTHY P. CANNON, J.
Appellant, Timothy A. Hall, appeals from the November 11,
2016 judgment of the Ashtabula County Court of Common Pleas,
which overruled his pro se motion to vacate improperly
imposed post-release control. The trial court's judgment
is hereby affirmed.
In June 2007, appellant was indicted on 72 counts by the
Ashtabula County Grand Jury. Appellant entered into a plea
agreement with appellee, the state of Ohio, and entered pleas
of guilty to the following 34 counts: one count of Engaging
in a Pattern of Corrupt Activity, in violation of R.C.
2923.32, a first-degree felony; seventeen counts of Burglary,
in violation of R.C. 2911.12, second-degree felonies; five
counts of Theft, in violation of R.C. 2913.02, fifth-degree
felonies; nine counts of Grand Theft, in violation of R.C.
2913.02, third-degree felonies; one count of Theft, in
violation of R.C. 2913.02, a first-degree misdemeanor; and
one count of Tampering with Evidence, in violation of R.C.
2921.12, a third-degree felony. The remaining counts were
dismissed by the State. The parties stipulated to a prison
term of nine years.
A change of plea and sentencing hearing was held on December
13, 2007, and the sentencing entry was journalized on
December 24, 2007. The trial court sentenced appellant to an
aggregate prison term of nine years. Appellant did not file a
direct appeal from the sentencing entry.
According to appellant, he completed this prison term on
March 30, 2016, but remains incarcerated on parole violations
from a previous conviction.
On August 29, 2016, appellant filed a pro se motion to vacate
improperly imposed post-release control, arguing the trial
court improperly advised him at his change of plea and
sentencing hearing that he "may" have post-release
control for "up to three years." The trial court
overruled this motion on November 11, 2016, stating:
The Court incorporated that the offender shall be
subject to a period of five years in its Judgment Entry of
sentence. * * * Although the signed plea agreement does state
that the defendant may have been subject to three years of
post release control, the Court has reviewed the record, and
the Court did advise the defendant, during both the plea and
the sentencing portions of the hearing that he would
be subject to five years of post release control. The
defendant stated on the record that he understood that.
Appellant filed a timely appeal and raises one assignment of
error for our review:
"The trial court erred in denying appellant's motion
to vacate improperly imposed post release control as
Appellant had a due process right to be notified of the
mandatory nature of the post release control pursuant to the
Ohio and United States Constitutions."
Appellant argues the trial court failed to properly notify
him of the mandatory nature of his post-release control at
the change of plea and sentencing hearing and also failed to
journalize a proper notification into its sentencing entry.
Appellant alleges this error renders the post-release control
portion of his sentence void and the error cannot be resolved
as he has completed his prison term. Thus, appellant asserts
the imposition of post-release control must be vacated. When
a sentence is contrary to law, a reviewing court, inter alia,
"may vacate the sentence and remand the matter to the
sentencing court for resentencing." R.C.