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State v. Hall

Court of Appeals of Ohio, Eleventh District, Ashtabula

June 19, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
TIMOTHY A. HALL, Defendant-Appellant.

         Criminal 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 Plaintiff-Appellee).

          Timothy A. Hall, pro se, PID: A541-369, Allen Correctional Institution, P.O. Box 4501, 2338 North West Street, Lima, OH 45801 (Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} 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.

         Procedural History

         {¶2} 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.

         {¶3} 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.

         {¶4} According to appellant, he completed this prison term on March 30, 2016, but remains incarcerated on parole violations from a previous conviction.

         {¶5} 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. [Emphasis sic]

         {¶6} Appellant filed a timely appeal and raises one assignment of error for our review:

         {¶7} "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."

         {¶8} 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. 2953.08(G)(2)(b).

         Void, Voidable, ...


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