State Banks

[Cite as State Banks, 2015-Ohio-5372.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 15AP-653

v. : (C.P.C. No. 08CR-5359)

Andre Banks, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on December 22, 2015

Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for

appellee.

Andre Banks, pro se.

APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.

{¶ 1} Defendant-appellant, Andre Banks, appeals from a judgment of the

Franklin County Court of Common Pleas, rendered on June 16, 2015, denying his motion

for resentencing based on an allegedly void judgment. Finding no merit in Banks'

assignments of error, we affirm the judgment of the trial court.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} We have previously recounted the underlying facts in this case:

On July 1, 2007, [Banks] was driving under the influence of

alcohol and marijuana when he drove left of center and struck

another vehicle. The driver of the other vehicle was seriously

injured; the driver's husband, who was the front seat

passenger, was killed; and their two children were injured.

After the accident, [Banks'] blood was tested, revealing a

blood-alcohol concentration of .138 grams and 27.97

nanograms per milliliter of marijuana in his system.

No. 15AP-653 2

State v. Banks, 10th Dist. No. 10AP-1065, 2011-Ohio-2749, ¶ 2.

{¶ 3} Based on this conduct, on July 23, 2008, Banks was indicted for two counts

of aggravated vehicular homicide, three counts of aggravated vehicular assault, three

counts of vehicular assault, and two counts of operating a vehicle under the influence

("OVI") of alcohol or drugs. Banks pled not guilty on August 4, 2008, but in a plea

hearing on January 5, 2009, Banks entered a guilty plea to three counts of the indictment,

while the trial court dismissed the remaining counts.

{¶ 4} The trial court held a sentencing hearing on February 3, 2009 and

sentenced Banks to 8 years on the aggravated vehicular homicide count and 5 years on

each of the two aggravated vehicular assaults. It permitted Banks to serve the 5-year

sentences concurrently with each other but ordered Banks to serve the 8 years consecutive

to the 5-year sentences for a total of 13 years in prison. The trial court declined to impose

a fine but ordered Banks to pay court costs "in an amount to be determined." (Judgment

Entry, 2.) According to the sentencing entry, it also notified Banks, "orally and in writing

[that] the applicable period of post-release control is three (3) years mandatory."

(Judgment Entry, 2.) However, the notice with which Banks was provided and which

Banks signed indicates five years of post-release control, does not indicate whether it is

mandatory or discretionary, and the trial court did not explain post-release control during

the sentencing hearing. Yet the trial court did explain during the prior plea hearing on

January 5, 2009, that Banks would be subject to three years of mandatory post-release

control and the potential consequences of violating that control. In addition, Banks' plea

form indicated that Banks understood that three years of mandatory post-release control

would be imposed and explained the consequences of violations. However, the plea form

initially indicated that Banks would be subject to five-years of mandatory post-release

control but shows a pen and ink correction.

{¶ 5} Banks appealed alleging ineffective assistance of counsel and improper

remarks by the prosecutor during sentencing to the effect that Banks' driver's license was

suspended at the time of the accident. State v. Banks, 10th Dist. No. 09AP-224, 2009-

Ohio-5582, ¶ 1. On October 22, 2009, this court overruled Banks' assignments of error

and affirmed his conviction and sentence. Id. Thereafter we denied Banks' motions for

No. 15AP-653 3

reconsideration and to reopen the appeal on November 24, 2009 and March 2, 2010,

respectively.

{¶ 6} In January 2010, Banks sought postconviction relief based primarily on

allegations of improper collection of blood samples that indicated he was intoxicated at

the time of the collision and an allegation that his license was not, in fact, suspended at

the time of the collision, even though the trial court relied on that alleged fact when it

sentenced him. Banks also filed a motion to vacate his sentence based on the allegedly

improper failure to discuss post-release control during his sentencing. Finally, Banks

submitted a motion to withdraw his guilty plea based on a number of allegations: first,

that the failure to find Banks guilty of OVI (which he claimed was a "predicate offense")

rendered the plea defective; second, that the plea was involuntary because he was led to

believe that dismissal of the OVI meant that the trial court could not consider whether he

was intoxicated at the time of the accident; and third, that the trial court considered

uncharged and unproved conduct in sentencing (including whether Banks' license was

suspended).

{¶ 7} Banks also filed an original action in procedendo with this court seeking to

compel the trial judge to rule and issue findings of fact and conclusions of law regarding

his postconviction petition. On October 14, 2010, the trial court denied Banks' motion for

postconviction relief. Four days later, on October 18, 2010, the trial court denied the

remaining motions in two separate decisions. This court denied Banks a writ of

procedendo based on the trial court's rulings and the availability of a direct appeal from

those rulings. State ex rel. Banks v. Court of Common Pleas Franklin Cty., 10th Dist. No.

10AP-914, 2011-Ohio-5055. Banks separately appealed each of the trial court's rulings.

We consolidated the appeals and, on June 7, 2011, we affirmed the judgments of the trial

court. Banks, 2011-Ohio-2749, ¶ 1, 26. Banks sought reconsideration, which we denied on

September 8, 2011. Banks also moved to certify a conflict, and on November 10, 2011, we

denied that motion as well.

{¶ 8} Concurrently with Banks' activity before this court, he filed a motion on

October 24, 2011 in the trial court to modify his sentence based on the passage of H.B. No.

86 which, among other things, changed the factors a trial court was required to consider

when sentencing. On November 29, 2011, the trial court denied Banks' motion for

No. 15AP-653 4

modification. Once again, Banks appealed and, on May 24, 2012, this court once again

affirmed the trial court. State v. Banks, 10th Dist. No. 11AP-1134, 2012-Ohio-2328.

{¶ 9} On November 13, 2012, Banks sought to vacate and modify his sentence

alleging that his sentence was unlawful based on the argument that he was not found

guilty of the OVI "predicate offenses" and hence was not properly adjudicated guilty of the

other offenses to which he pled. The trial court never ruled on this motion; however, the

same argument was made and rejected in Banks' prior filings. See Banks, 2011-Ohio-

2749.

{¶ 10} On February 18, 2015, Banks again filed a motion to change his sentence,

this time entitled a motion for "re-sentencing based on void judgment." In this motion,

Banks argued that the trial court failed to notify him that failure to pay court costs could

result in him being ordered to perform community service and also that the court failed to

notify him about post-release control. On June 16, 2015, the trial court denied Banks'

motion, finding that the arguments and issues raised in this motion were raised or could

have been raised on direct appeal and thus were res judicata and law of the case. Banks

now appeals.

II. ASSIGNMENTS OF ERROR

{¶ 11} Banks asserts three assignments of error for review:

[I.] THE TRIAL COURT ERRED AS A MATTER OF LAW,

AND ABUSED ITS DISCRETION WHEN IT REFUSED TO

RE-SENTENCE APPELLANT BANKS IN COMPLIANCE

WITH STATUTORY REQUIREMENTS PURSUANT TO R.C.

2947.23(A)(1)(a), WHEN THE TRIAL COURT FAILED TO

NOTIFY APPELLANT BANKS AT THE "SENTENCING

HEARING" DATED FEBRUARY 3rd, 2009 THAT FAILURE

OF APPELLANT BANKS, TO PAY THE COURT COSTS, IN

AN AMOUNT TO BE DETERMINED" COULD RESULT IN

THE COURT "ORDERING THE APPELLANT TO PERFORM

COMMUNITY SERVICE "UNTIL THE JUDGMENT IS PAID

OR UNTIL THE TRIAL COURT IS SATISFIED THAT THE

APPELLANT IS IN COMPLIANCE WITH THE APPROVED

SCHEDULE"

[II.] THE TRIAL COURT ERRED A MATTER OF LAW, AND

ABUSED ITS DISCRETION WHEN IT REFUSED TO RE

SENTENCE APPELLANT BANKS IN COMPLIANCE WITH

STATUTORILY MANDATED TERMS PURSUANT TO R.C.

No. 15AP-653 5

2929.19 (B)(3)(C) THROUGH (E) AND R.C. 2967.28 WHEN

THE TRIAL COURT FAILED TO COMPLY WITH

SEPARATION OF POWERS CONCERNS AND TO FULFILL

THE REQUIREMENTS OF POST RELEASE CONTROL

SENTENCING STATUTES OF ABOVE, WHEN THE TRIAL

COURT FAILED TO "NOTIFY THE APPELLANT AT

"SENTENCING" ON FEBRUARY 3rd, 2009 OF THE

PROPER NOTIFICATION OF HIS TERMS OF MANDATORY

POST-RELEASE CONTROL, AND THE CONSEQUENCES

OF VIOLATING POST-RELEASE CONTROL, AND

INCORATING [sic] THAT STATUTORILY MANDATED

TERM INTO ITS FEBRUARY 3rd JUDGMENT OF

CONVICTION ENTRY AS STATUTORY REQUIRED BY LAW

IN THE ABOVE REVISED CODES.

[III.] THE TRIAL COUNSEL PROVIDED INEFFECTIVE

ASSISTANCE, IN VIOLATION OF THE SIXTH, AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTIONS, AND SECTION 10, ARTICLE I OF THE

OHIO CONSTITUTION FOR FAILING TO "OBJECT" AT

"SENTENCING" ON FEBRUARY 3rd, 2009 TO THE TRIAL

COURT'S IMPOSITION OF COURT COSTS IN AN AMOUNT

TO BE DETERMINED WHEN THE COURT FAILED TO

"NOTIFY APPELLANT BANKS, THAT HIS FAILURE TO PAY

"COURT COSTS IN AN AMOUNT TO BE DETERMINED"

COULD RESULT IN THE COURT "ORDERING" THE

APPELLANT TO PERFORM COMMUNITY SERVICE UNTIL

THE JUDGMENT IS PAID OR, UNTIL THE COURT IS

SATISFIED THAT THE APPELLANT IS IN COMPLIANCE

WITH THE APPROVED SCHEDULE.

(Sic passim.)

III. DISCUSSION

A. First and Third Assignments of Error – Whether it was Error for the

Trial Court to Have Taxed Costs in an Amount to be Determined and

Whether it was Ineffective for Defense Counsel to Have Failed to

Object

{¶ 12} The Supreme Court of Ohio has explained:

The doctrine of res judicata involves both claim preclusion

(historically called estoppel by judgment in Ohio) and issue

preclusion (traditionally known as collateral estoppel). Grava

v. Parkman Twp., 73 Ohio St.3d 379, 381, 653 N.E.2d 226

(1995), citing Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108,

No. 15AP-653 6

254 N.E.2d 10 (1969) and Krahn v. Kinney, 43 Ohio St.3d

103, 107, 538 N.E.2d 1058 (1989). With regard to claim

preclusion, a final judgment or decree rendered on the merits

by a court of competent jurisdiction is a complete bar to any

subsequent action on the same claim between the same

parties or those in privity with them. Id., citing Norwood v.

McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943), paragraph

one of the syllabus, and Whitehead, paragraph one of the

syllabus. Moreover, an existing final judgment or decree

between the parties is conclusive as to all claims that were or

might have been litigated in a first lawsuit. Id. at 382, 653

N.E.2d 226, citing Natl. Amusements, Inc. v. Springdale, 53

Ohio St.3d 60, 62, 558 N.E.2d 1178 (1990).

Brooks v. Kelly, __ Ohio St.3d __, 2015-Ohio-2805, ¶ 7; see also State v. Szefcyk, 77 Ohio

St.3d 93, 95-96 (1996); Stromberg v. Bd. of Edn. of Bratenahl, 64 Ohio St.2d 98, 100

(1980); State ex rel. Ohio Water Serv. Co. v. Mahoning Valley Sanitary Dist., 169 Ohio

St. 31, 34-35 (1959). As distinct from claim preclusion:

"The doctrine of issue preclusion, also known as collateral

estoppel, holds that a fact or a point that was actually and

directly at issue in a previous action, and was passed upon and

determined by a court of competent jurisdiction, may not be

drawn into question in a subsequent action between the same

parties or their privies, whether the cause of action in the two

actions be identical or different."

State ex rel. Stacy v. Batavia Local Sch. Dist. Bd. of Edn., 97 Ohio St.3d 269, 2002-Ohio-

6322, ¶ 16, quoting Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81

Ohio St.3d 392, 395 (1998).

{¶ 13} The Supreme Court has discussed issue preclusion as generally more

limited than claim preclusion in at least one respect:

[T]he Ohio Supreme Court has held that "an absolute due

process prerequisite to the application of collateral estoppel

[claim preclusion] is that the party asserting the preclusion

must prove that the identical issue was actually litigated,

directly determined, and essential to the judgment in the prior

action."

State ex rel. Davis v. Public Emps. Retirement Bd., 174 Ohio App.3d 135, 2007-Ohio-

6594, ¶ 31 (10th Dist.), quoting Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d

193, 201 (1983). In other words, "[i]ssue preclusion does not apply to other matters that

No. 15AP-653 7

might have been litigated but were not." Id., quoting Taylor v. Monroe, 158 Ohio St. 266

(1952), paragraph three of the syllabus. However, in criminal cases res judicata generally

bars a defendant from litigating claims in a proceeding subsequent to the direct appeal "if

he or she raised or could have raised the issue at the trial that resulted in that judgment

of conviction or on an appeal from that judgment." (Emphasis sic.) State v. Jackson, 141

Ohio St.3d 171, 2014-Ohio-3707, ¶ 92. Thus, res judicata as applied in criminal cases,

although it deals with "issues" diverges from narrow issue preclusion and, like claim

preclusion, also may permit preclusion of arguments or positions which could have been

(but were not actually) litigated. There are, however, also exceptions to res judicata in

criminal cases.

{¶ 14} Void sentences, for example, are subject to correction at any time

irrespective of the principles of res judicata or law of the case doctrine. State v. Fischer,

128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 27, 30 (holding that a sentence is void in part

where an offender is not properly required to be subject to a period of post-release

control); see also State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, paragraph one of

the syllabus (extending Fisher to driver's license suspensions). This principle does not

apply to the improper imposition of costs, however, because, among other reasons, courts

have discretion on the imposition of costs, and costs are a civil assessment, even when

assessed within a criminal case. See State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954,

¶ 1, 19-21. Thus, Banks' arguments with respect to costs, even if successful, could not

show that his sentence is void, even in part. Nor are Banks' claims regarding costs the

sort of claims that rely on evidence that was not available in the record of his original trial

and which could not properly have been raised on direct appeal. See, e.g., Manigault v.

Ford Motor Co., 96 Ohio St.3d 431, 435 (2002) ("The law prevents appellate courts from

considering evidence dehors the record."). The trial court's rulings on costs were

announced orally in the sentencing hearing and within the sentencing entry. Because the

claims regarding costs could have been raised in his direct appeal in 2009, they cannot be

raised now. Jackson at ¶ 92.

{¶ 15} Banks' first and third assignments of error are overruled.

No. 15AP-653 8

B. Second Assignment of Error – Whether the Trial Court Erred in the

Manner in Which it Imposed Post-Release Control

{¶ 16} A sentence in which an offender is not properly required to be subject to a

period of post-release control is void, and the offending portion of the sentence is subject

to correction at any time irrespective of the principles of res judicata or law of the case

doctrine.1 Fischer at ¶ 27, 30; accord State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-

5144, ¶ 7; see also State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, ¶ 15 (holding

that "if a court improperly imposes post-release control on a sentence imposed on or after

July 11, 2006, it may correct the sentence in accordance with the procedures set forth in

R.C. 2929.191, which provides that a court must hold a hearing before issuing the

correction. R.C. 2929.191(C)"). Thus, Banks' claim on this issue is not precluded by

principles of res judicata or law of the case if it indeed shows his sentence was void. In

addition we note that, although Banks previously raised this issue before the trial court in

his March 4, 2010 motion to vacate, this is the first time he has raised the issue in an

appeal before this court. Banks, 2011-Ohio-2749. Although Banks appealed the denial of

his March 4, 2010 motion to vacate, he did not raise an assignment of error on the topic of

post-release control. Banks, 2011-Ohio-2749, ¶ 4. Thus, not only will res judicata and the

law of the case doctrine not protect the judgment of the trial court if it proves to be void,

but there is also no prior decision from this court in this case on the same claim that could

otherwise serve as an ample guide according to the principle of stare decisis.

1 Both R.C. 2929.19 and 2967.28 expressly provide (and provided at the time Fischer was decided in 2010)

that the failure to appropriately notify the defendant "does not negate, limit, or otherwise affect" the period

of supervision imposed or the authority of the parole board to act on violations of post-release control. R.C.

2967.28(B) (2009); 2929.19(B)(3)(c) and (e) (2009); see also R.C. 2967.28(B); 2929.19(B)(2)(c) and (e).

The Supreme Court does not explain in Fischer how its view that a failure of notification by the trial court

renders a sentence void (even in part) can be compatible with the statutory language that the failure to

appropriately notify the defendant "does not negate, limit, or otherwise affect" the period of supervision

imposed or the authority of the parole board to act on violations of post-release control. Compare R.C.

2967.28(B); 2929.19(B)(2)(c) and (e) with Fischer at ¶ 10-26; see also State v. Fuller, 124 Ohio St.3d 543,

2010-Ohio-726, ¶ 5-14 (Pfeifer, J., dissenting). The high court has held "that terms of post release control are

'part of the actual sentence' and that the court must inform the offender regarding these terms, because

sentencing is a judicial function and a sentence cannot be imposed by the executive branch of government."

State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, ¶ 15, quoting Woods v. Telb, 89 Ohio St.3d 504, 511-

12 (2000), citing Fischer at ¶ 23. But the Schleiger court did not hold R.C. 2929.19 or 2967.28

unconstitutional (or even cite them), even as it enunciated a proposition that poses a challenge to their

validity. In addition, that a trial court properly possessed of jurisdiction produces a void sentence or order

when it does what is prohibited by statute or fails to do what is required by statute, seems problematic. That

is, if errors appearing in a judgment or decision (even errors that violate a statute or, for that matter, the

Constitution) render the judgment or decision void, they create consequences for applying res judicata, law

of the case, and waiver.

No. 15AP-653 9

{¶ 17} As it stood at the time of Banks' sentencing, R.C. 2967.28 required the

imposition of post-release control in relevant part as follows:

(B) Each sentence to a prison term * * * for a felony of the

second degree * * * or for a felony of the third degree that is

not a felony sex offense and in the commission of which the

offender caused * * * physical harm to a person shall include a

requirement that the offender be subject to a period of post-

release control imposed by the parole board after the

offender's release from imprisonment. If a court imposes a

sentence including a prison term of a type described in this

division on or after July 11, 2006, the failure of a sentencing

court to notify the offender pursuant to division (B)(3)(c) of

section 2929.19 of the Revised Code of this requirement or to

include in the judgment of conviction entered on the journal a

statement that the offender's sentence includes this

requirement does not negate, limit, or otherwise affect the

mandatory period of supervision that is required for the

offender under this division. * * * [A] period of post-release

control required by this division for an offender shall be of one

of the following periods:

***

(2) For a felony of the second degree * * * three years;

(3) For a felony of the third degree that is not a felony sex

offense and in the commission of which the offender caused

* * * physical harm to a person, three years.

R.C. 2967.28(B) (2009). R.C. 2929.19, as written at the time of Banks' sentencing,

required notification regarding the period of post-release control in relevant part as

follows:

(3) Subject to division (B)(4) of this section, if the sentencing

court determines at the sentencing hearing that a prison term

is necessary or required, the court shall do all of the following:

***

(c) Notify the offender that the offender will be supervised

under section 2967.28 of the Revised Code after the offender

leaves prison if the offender is being sentenced for a felony of

the * * * second degree, * * * or for a felony of the third degree

that is not a felony sex offense and in the commission of which

the offender caused * * * physical harm to a person. If a court

imposes a sentence including a prison term of a type

No. 15AP-653 10

described in division (B)(3)(c) of this section on or after

July 11, 2006, the failure of a court to notify the offender

pursuant to division (B)(3)(c) of this section that the offender

will be supervised under section 2967.28 of the Revised Code

after the offender leaves prison or to include in the judgment

of conviction entered on the journal a statement to that effect

does not negate, limit, or otherwise affect the mandatory

period of supervision that is required for the offender under

division (B) of section 2967.28 of the Revised Code.

***

(e) Notify the offender that, if a period of supervision is

imposed following the offender's release from prison, as

described in division (B)(3)(c) or (d) of this section, and if the

offender violates that supervision or a condition of post-

release control imposed under division (B) of section 2967.131

of the Revised Code, the parole board may impose a prison

term, as part of the sentence, of up to one-half of the stated

prison term originally imposed upon the offender. If a court

imposes a sentence including a prison term on or after July 11,

2006, the failure of a court to notify the offender pursuant to

division (B)(3)(e) of this section that the parole board may

impose a prison term as described in division (B)(3)(e) of this

section for a violation of that supervision or a condition of

post-release control imposed under division (B) of section

2967.131 of the Revised Code or to include in the judgment of

conviction entered on the journal a statement to that effect

does not negate, limit, or otherwise affect the authority of the

parole board to so impose a prison term for a violation of that

nature if, pursuant to division (D)(1) of section 2967.28 of the

Revised Code, the parole board notifies the offender prior to

the offender's release of the board's authority to so impose a

prison term.

R.C. 2929.19(B)(3)(c) and (e) (2009).2

{¶ 18} We have previously held that a trial court need not strictly comply with

these statutes need not be mechanically perfect in order to prevent a void judgment.

In our recent cases, we have " 'applied a "totality of the

circumstances" test to determine whether or not the

defendant was properly notified of post-release control.' "

State v. Cockroft, 10th Dist. No. 13AP-532, 2014-Ohio-1644,

quoting State v. Boone, 10th Dist. No. 11AP-1054, 2012-Ohio-

3653, ¶ 25, 975 N.E.2d 546, quoting State v. Williams, 10th

2 In the current version of this statute, these provisions are found in division (B)(2) of R.C. 2929.19.

No. 15AP-653 11

Dist. No. 10AP-1135, 2011-Ohio-6231, ¶ 23. Using that

approach, we have concluded that " 'the trial court sufficiently

fulfilled its statutory obligations when, taken as a whole, its

oral and written notifications, including those at the

sentencing hearing, properly informed the defendant of post-

release control.' " Cockroft at ¶ 14, quoting State v. Wilcox,

10th Dist. No. 13AP-402, 2013-Ohio-4347, ¶ 4.

State v. Holloman, 10th Dist. No. 14AP-419, 2014-Ohio-5763, ¶ 12. We have also found it

significant in past cases when a defendant was properly advised of post-release control in

plea hearings and in plea documents signed by the defendant. See, e.g., State v. Williams,

10th Dist. No. 10AP-1135, 2011-Ohio-6231, ¶ 14-21; State v. Chandler, 10th Dist. No.

10AP-369, 2010-Ohio-6534, ¶ 6, 13-14; State v. Mays, 10th Dist. No. 10AP-113, 2010-

Ohio-4609, ¶ 5.

{¶ 19} Here the trial court did not precisely follow the statutory notifications when

it sentenced Banks. According to the sentencing entry, it notified Banks, "orally and in

writing [that] the applicable period of post-release control is three (3) years mandatory."

But at the sentencing hearing the only mention the trial court made of post-release

control was to address Banks' counsel, "Mr. Slemmer, please notify your client of post-

release control in writing." (Feb. 3, 2009 Tr. 19.) Moreover, the notice with which Banks

was provided and which Banks and his counsel signed indicates five years of post-release

control and does not indicate whether it is mandatory or permissive. However, the trial

court did previously explain to Banks during the January 2009 plea hearing that, in the

event he pled guilty, Banks would be subject to three years of mandatory post-release

control and the potential consequences of violating that control:

THE COURT: Do you understand if you end up in prison as a

result of this plea, that once released from prison, you would

have mandatory three years supervision by the Adult Parole

Authority of Ohio on the F-2 and mandatory three-year

supervision on your Count Three. If you would violate the law

while under their supervision, they could send you back to

prison for more time on this case than this Court would give

you, but in any event, no more extra time than an amount

equal to one half this Court's sentence. Do you understand

that?

[BANKS]: Yes, Your Honor.

No. 15AP-653 12

(Jan. 5, 2009 Tr. 5.) In addition, Banks' plea form indicated that Banks understood that

three years of mandatory post-release control would be imposed and explained:

I understand that a violation of post-release control

conditions or the condition under R.C. 2967.131 could result

in more restrictive non-prison sanctions, a longer period of

supervision or control up to a specified maximum, and/or

reimprisonment for up to nine months. The prison term(s) for

all post-release control violations may not exceed one-half of

the prison term originally imposed. I understand that I may

be prosecuted, convicted, and sentenced to an additional

prison term for a violation that is a felony. I also understand

that such felony violation may result in a consecutive prison

term of twelve months or the maximum period of unserved

post-release control, whichever is greater. Prison terms

imposed for violations or new felonies do not reduce the

remaining post-release control period(s) for the original

offense(s).

The plea form initially indicated five years of post-release control and was then corrected

to properly indicate three years.

{¶ 20} While the trial court's notification to Banks did not strictly comply with the

terms of the statutes, the trial court did include the mandatory three years of post-release

control when it sentenced Banks in its judgment entry and it did take some steps to place

Banks on notice about the nature of his post-release control obligations. Under the

totality of the circumstances, we find that the trial court sufficiently notified Banks of the

term of post-release control. Banks' arguments about the imprecision of the trial court's

sentencing hearing statements, while a criticism, do not provide grounds for granting the

relief Banks seeks, since they do not show that post-release control was not imposed or

that Banks was not informed. Accordingly, Banks' sentence is not void.

{¶ 21} We overrule Banks' second assignment of error.

IV. CONCLUSION

{¶ 22} We overrule Banks' three assignments of error and affirm the judgment of

the Franklin County Court of Common Pleas.

Judgment affirmed.

KLATT, J., concurs.

LUPER SCHUSTER, J., concurs in judgment only.