The opinion
[Cite as State v. Hudson, 2019-Ohio-1071.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 18AP-625
(C.P.C. No. 04CR-3204)
v. :
(REGULAR CALENDAR)
Michael D. Hudson, :
Defendant-Appellant. :
D E C I S I O N
Rendered on March 26, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee.
On brief: Michael D. Hudson, pro se.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Michael D. Hudson, defendant-appellant, appeals from a judgment of the
Franklin County Court of Common Pleas in which the court denied his motion to vacate
and release from post-release control ("PRC").
{¶ 2} The underlying facts of the crime for which appellant was convicted are
irrelevant to the issues on appeal. In March 2006, a jury convicted appellant on the
charges of kidnapping and burglary with a gun specification. The court sentenced
appellant to 10 years on the kidnapping count, 8 years on the burglary count, and 1 year
on the gun specification, for a total sentence of 19 years. The court also imposed a
mandatory 5-year PRC term. Appellant appealed, and in State v. Hudson, 10th Dist. No.
06AP-335, 2007-Ohio-3227, this court affirmed the trial court. Appellant did not raise the
No. 18AP-625 2
issue of PRC in Hudson. Appellant appealed to the Supreme Court of Ohio, but the court
declined jurisdiction.
{¶ 3} On September 24, 2007, appellant filed an application for reopening, which
this court denied. On July 16, 2008, appellant filed a motion for relief from judgment,
which this court denied.
{¶ 4} On April 13, 2011, appellant filed a motion for resentencing, which the trial
court denied on August 7, 2012. On August 21, 2012, appellant filed a motion to correct
void sentence, which the trial court denied.
{¶ 5} On June 20, 2018, appellant filed a motion to vacate and release from PRC
which is the subject of the present appeal. On July 18, 2018, the trial court denied the
motion. The court construed the motion as a petition for post-conviction relief and found:
(1) it lacked authority to modify the sentence it validly imposed, (2) the claims are barred
by res judicata, and (3) the claims are meritless. Appellant has appealed the judgment of
the trial court. Although appellant's assignments of error and arguments are combined,
we distill from his brief the following assignments of error which are quoted verbatim:
[I.] The trial Court failed to include every element and
consequence in it's Judgment Entry of March 23, 2006 (see;
attachment #1), nor is the required statutorily mandated
term/years of/for violating the condition of PRC. Appellant
was not properly informed of the consequences that he faced
for the violation of the terms of PRC.
[II.] The trial court's failure to properly advise Appellant of
PRC before July 11, 2016. In which case, a De Novo hearing is
the proper remedy[.]
[III.] Appellant's prison sentence has elapsed for which PRC
was attached (the F-1, Kidnapping, ten (10) year portion of
Appellant's/defendant sentence). Therefore the PRC is now
void and Appellant must be released from the defective
portion of defendant's sentence.
[IV.] The Trial Court erred in denying Appellant's Motion to
Vacate and Release from PRC.
[V.] The trial Courts failure to state in it's Journal Entry,
which crime Appellant is subject to five (5) years PRC on,
when Appellant was convicted of both a felony 1 (kidnapping)
and a felony 2 (Burglary).
No. 18AP-625 3
{¶ 6} We address appellant's first and fourth assignments of error together, as
they both generally raise the same argument the trial court erred when it denied his
motion to vacate and release from PRC because the original sentencing court failed to
properly incorporate PRC into the sentencing entry.
{¶ 7} "[A] trial court has a statutory duty to provide notice of postrelease control
at the sentencing hearing." State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶ 23. In
addition to providing the required notification at the sentencing hearing, the trial court
must "incorporate postrelease control into its sentencing entry, which thereby empowers
the executive branch of government to exercise its discretion" in administering PRC. Id.
at ¶ 22. In order for a sentencing entry to be "minimally compliant" it "must provide the
[Adult Parole Authority] the information it needs to execute the postrelease-control
portion of the sentence." State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, ¶ 13.
Accordingly, the Supreme Court has found that, in order to "validly impose postrelease
control when the court orally provides all the required advisements at the sentencing
hearing," the sentencing entry must contain the following information: "(1) whether
postrelease control is discretionary or mandatory, (2) the duration of the postrelease-
control period, and (3) a statement to the effect that the Adult Parole Authority ("APA")
will administer the postrelease control pursuant to R.C. 2967.28 and that any violation by
the offender of the conditions of postrelease control will subject the offender to the
consequences set forth in that statute." Id. at ¶ 1.
{¶ 8} In the present case, appellant does not contest the oral PRC notification at
the sentencing hearing. Appellant's only argument concerns whether the trial court's
judgment entry sufficiently incorporated notice of PRC. The judgment entry here
provided:
After the imposition of sentence, the Court notified the
Defendant orally and in writing, that the applicable period of
post-release control pursuant to R.C. 2929.19(B)(3)(c), (d),
and (e) is Five years - Mandatory.
{¶ 9} Appellant does not question whether the sentencing entry properly
informed him of the first two requirements set forth in Grimes but only contends the
sentencing entry did not comply with the third requirement that the entry contain a
statement to the effect that the APA will administer the PRC, pursuant to R.C. 2967.28,
No. 18AP-625 4
and any violation by the offender of the conditions of PRC will subject him to the
consequences set forth in that statute.
{¶ 10} In Grimes, the Supreme Court found the following statement in the
sentencing entry properly incorporated notice of post-release control:
The Court further notified the Defendant that "Post Release
Control" is mandatory in this case for three (03) years
as well as the consequences for violating conditions of post
release control imposed by Parole Board under Revised Code
§ 2967.28. The Defendant is ordered to serve as part of this
sentence any term for violation of that post release control.
(Emphasis sic.) Grimes at ¶ 2, quoting sentencing entry. With respect to the third
requirement set forth in Grimes, the court explained the sentencing entry "met the
statutory threshold for imposing a valid post-release-control sentence" because "[b]y
referring to R.C. 2967.28, the trial court's entry empowered Grimes and other readers to
consult the statute and determine what consequences the APA could impose for any
violation of the conditions of postrelease control." Id. at ¶ 19.
{¶ 11} In State v. Harper, 10th Dist. No. 17AP-762, 2018-Ohio-2529, this court
compared the language in the sentencing entry in that case to the language of the
sentencing entry in Grimes. In Harper, the sentencing entry provided, " '[t]he Court also
notified the Defendant of the applicable period of 3 years mandatory post-release
control pursuant to R.C. 2929.19(B)(3)(c), (d) and (e).' " (Emphasis sic.) We concluded
in Harper that the reference alone to "R.C. 2929.19(B)(3)(c), (d) and (e)" was insufficient
to minimally set forth the consequences of violating PRC. We found the trial court's entry
did not at all mention the consequences of violating the terms of PRC and did not cite the
statute that establishes the consequences for violation, R.C. 2967.28. We also noted that
the reference to R.C. 2929.19(B)(3)(c), (d), and (e) was insufficient to comply with the
third requirement in Grimes, even though R.C. 2929.19 includes references to supervision
pursuant to R.C. 2967.28.
{¶ 12} The language in the judgment entry in the present case is substantially
similar to the language used in the judgment entry we found insufficient in Harper. Like
in Harper, the sentencing entry here does not mention the consequences of violating the
terms of PRC and does not cite the statute that establishes the consequences for a
violation, R.C. 2967.28. Furthermore, as we found in Harper, the reference to R.C.
No. 18AP-625 5
2929.19(B)(3)(c), (d), and (e) was also insufficient to comply with the third requirement
in Grimes. Therefore, consistent with our precedent in Harper, we find the sentencing
entry here does not properly set forth the consequences of violating PRC in that it does
not include a statement to the effect the APA will administer the PRC, pursuant to R.C.
2967.28, and that any violation by the offender of the conditions of PRC will subject the
offender to the consequences set forth in that statute, in contravention of the third
requirement in Grimes.
{¶ 13} We note plaintiff-appellee, the State of Ohio, argues Grimes was decided
over 11 years after sentencing in this case, and should not apply retroactively. However,
we rejected this argument in Harper, finding that "the Supreme Court has * * * embraced
a view that a failure to properly impose post-release control renders a sentence void in
relevant part and therefore open to challenge at any time, irrespective of finality or other
principles of res judicata." Id. at ¶ 15, citing State v. Fischer, 128 Ohio St.3d 92, 2010-
Ohio-6238, paragraphs one and two of the syllabus. Thus, we concluded in Harper, "for
this limited purpose, finality and res judicata do not bar relief * * * under Grimes." Id.
Therefore, consistent with our precedent in Harper, we find Grimes applies retroactively
to the present case. For these reasons, we sustain appellant's first and fourth assignments
of error.
{¶ 14} Appellant argues in his second and third assignments of error that because
he has finished serving his prison term for a portion of his sentence—kidnapping—the
trial court cannot correct the entry to properly impose PRC. The state claims that, as of its
appellate briefing, appellant was still serving his sentence for kidnapping, the sentence for
which would not be completed until January 25, 2019, which has now passed.
Nevertheless, we addressed appellant's argument in Harper. In that case, the defendant
argued that, having completed his original prison term, PRC may not be reimposed and
he must be released from PRC or from confinement for violation of it. We acknowledged
that the Supreme Court has recognized that " 'unless a sentencing entry that did not
include notification of the imposition of postrelease control is corrected before the
defendant completed the prison term for the offense for which postrelease control was to
be imposed, postrelease control cannot be imposed.' " Id. at ¶ 16, quoting State v. Qualls,
131 Ohio St.3d 499, 2012-Ohio-1111, ¶ 16, citing Hernandez v. Kelly, 108 Ohio St.3d 395,
2006-Ohio-126, ¶ 28-30. However, we noted that the principle from Qualls is based on
No. 18AP-625 6
the case where PRC was not imposed at all in the entry and no notification was given. We
found that, in the defendant's case, a mandatory three-year term of PRC was duly
imposed, and he received repeated notices both in writing and orally about the terms of
PRC, with the only problem being the sentencing entry failed to mention the necessary
consequences of violating PRC. Instead, we followed Watkins v. Collins, 111 Ohio St.3d
425, 2006-Ohio-5082, and found that, although the imposition of PRC in the judgment
entry was defective under Grimes, it stated enough information (length and mandatory
nature of the PRC term) to impose PRC and permit the APA to begin administering it
after he completed his original prison term. As a consequence, the defendant remained
validly under sentence, even though it may not have been perfectly imposed. We
concluded that releasing the defendant was not warranted under the circumstances, and
the appropriate remedy was that a nunc pro tunc entry be issued correcting the deficiency
in the judgment entry as defined in Grimes. Applying the above analyses from Harper to
the present case, we find the appropriate remedy here is for the trial court to issue a nunc
pro tunc entry correcting the deficiency in the judgment entry as defined in Grimes. For
these reasons, we overrule appellant's second and third assignments of error.
{¶ 15} As for appellant's fifth assignment of error, given our above findings, we
render it moot.
{¶ 16} Accordingly, appellant's first and fourth assignments of error are sustained,
his second and third assignments of error are overruled, and his fifth assignment of error
is rendered moot. The judgment of the Franklin County Court of Common Pleas is
affirmed in part and reversed in part, and we remand the matter to that court to correct
appellant's judgment entry nunc pro tunc.
Judgment affirmed and reversed in part; cause remanded.
DORRIAN and LUPER SCHUSTER, JJ., concur.
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