FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 05CR069222
MICHAEL ROSS, pro se, Appellant.
P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant
Prosecvuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
A. TEODOSIO, Presiding Judge.
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
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, ¶
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.
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.
OF ERROR I
TRIAL COURT ERRED IN SENTENCING MR. ROSS TO A POST RELEASE
TERM OF 5 YEARS FOR A F-2 CONVICTION
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.
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 ...