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State v. Ross

Court of Appeals of Ohio, Ninth District, Lorain

December 23, 2019

STATE OF OHIO Appellee
v.
MICHAEL ROSS Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 05CR069222

          MICHAEL ROSS, pro se, Appellant.

          DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecvuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO, Presiding Judge.

         {¶1} Defendant-Appellant, Michael Ross, appeals a judgment of the Lorain County Court of Common Pleas that denied his motion to vacate and terminate void post-release control, restitution, fines and costs. This Court affirms in part and reverses in part.

         I.

         {¶2} In 2009, after a jury found Mr. Ross guilty of multiple offenses, the trial court sentenced him to a total of nine and a half years in prison. The court also imposed five years of post-release control and ordered Mr. Ross to pay $377, 000 in restitution. On appeal, this Court upheld the jury's verdict but reversed Mr. Ross's sentence because the trial court had incorrectly increased the level of some of the offenses and had not analyzed whether any of the offenses were allied. State v. Ross, 9th Dist. Lorain No. 09CA009742, 2012-Ohio-536, ¶ 74. On remand, the trial court corrected the offense level of the relevant counts, merged others that it found were allied, and resentenced Mr. Ross to a total of nine years imprisonment. On appeal, this Court reversed again because the trial court had improperly changed Mr. Ross's sentence for offenses that were not challenged in his first appeal and that the trial court had determined were not allied. State v. Ross, 9th Dist. Lorain Nos. 14CA010601 and 14CA010602, 2015-Ohio-3399, ¶ 9.

         {¶3} On remand, the trial court entered an order that purported to sentence Mr. Ross to six months on two offenses that it had previously determined were allied. It subsequently entered an order explaining that, because Mr. Ross's new aggregate sentence was 6 years, he would be released on November 18, 2015. Mr. Ross attempted to appeal the trial court's orders, but this Court dismissed his appeal because the orders did not comply with the requirements for a judgment of conviction under Crim.R. 32(C). Meanwhile, Mr. Ross was released from prison on November 18, 2015. In September 2016, the trial court issued a judgment entry that listed Mr. Ross's sentence for each count number and sentenced him to a total of six years. The judgment entry also imposed five years of post-release control and ordered Mr. Ross to pay $377, 000 in restitution. Mr. Ross attempted to appeal, but this Court dismissed the appeal because it concluded that the judgment entry did not satisfy the requirements of Crim.R. 32(C). Specifically, the judgment entry did not include the fact of the conviction with respect to each count. On remand, the trial court entered a judgment entry in February 2017 that was similar to the one it had previously entered, but this time it named the offense related to each count in addition to the sentence imposed for each count. It also explained again that Mr. Ross's total sentence was six years, that he was subject to five years of post-release control, and that he had to pay $377, 000 in restitution.

         {¶4} Mr. Ross attempted to appeal the trial court's February 2017 judgment entry, but this Court dismissed his appeal because the judgment entry still did not state the fact of the conviction for each count. Back in the trial court, Mr. Ross moved to vacate and terminate his post-release control, arguing that the court had incorrectly imposed a five-year term instead of three. He also argued that, since he had already been released from prison, it was too late for the trial court to correct the mistake. He further argued that the court should vacate its restitution order and hold a hearing on the amount of restitution, fines, and costs he must pay. The trial court subsequently entered a judgment entry that amended its February 2017 judgment entry nunc pro tunc to correct the length of Mr. Ross's post-release control. Mr. Ross did not appeal the court's entry. In February 2018, the trial court denied Mr. Ross's motion to vacate and terminate his post-release control, restitution, fines and costs. Mr. Ross has appealed the denial of his motion, assigning two errors.

         II.

         ASSIGNMENT OF ERROR I

         THE TRIAL COURT ERRED IN SENTENCING MR. ROSS TO A POST RELEASE TERM OF 5 YEARS FOR A F-2 CONVICTION

         {¶5} In his first assignment of error, Mr. Ross argues that the trial court's attempt to impose post-release control on him is void because it imposed the incorrect amount of years and failed to advise him of the consequences of violating post-release control. He also argues that it is too late for the court to correct the errors because he has already been released from prison.

         {¶6} The most serious offense that Mr. Ross committed was a felony of the second degree. It was not a sex offense. The term of post-release control for a felony of the second degree that is not a sex offense is three years. R.C. 2967.28(B)(2). Mr. Ross was released from prison on November 18, 2015, meaning that his term of post-release control expired on November 18, 2018. We conclude that this issue is not moot, however, because Mr. Ross received ...


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