State v. Singleton , 2017 Ohio 7265 ( 2017 )

[Cite as State v. Singleton, 2017-Ohio-7265.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27329
:
v. : Trial Court Case No. 97-CR-1015/1
:
BRYAN K. SINGLETON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 18th day of August , 2017.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
BRYAN K. SINGLETON, #352-353, P.O. Box 69, London, Ohio 43140
Pro Se
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HALL, P.J.
{¶ 1} Bryan K. Singleton appeals pro se from the trial court’s denial of his August
2016 motion for resentencing.
{¶ 2} In his sole assignment of error, Singleton contends the trial court did not
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properly impose post-release control in 1997 when it sentenced him to consecutive prison
terms for aggravated murder, aggravated robbery, aggravated burglary, having a weapon
while under disability, and a firearm specification.1 Therefore, he argues that the post-
release control portion of his sentence is void and that resentencing is required.
{¶ 3} The record reflects that Singleton previously filed a direct appeal, challenging
only the denial of a suppression motion. This court overruled his assignment of error and
affirmed his convictions. Thereafter, he unsuccessfully sought habeas relief and statutory
post-conviction relief. He also twice unsuccessfully sought resentencing on the basis of
an alleged allied-offense issue.
{¶ 4} In his most recent motion, Singleton raised a different issue. He argued below
that his sentence is partially void because the trial court failed to impose a mandatory
term of five years of post-release control. The trial court overruled Singleton’s motion on
the basis of res judicata, reasoning:
* * * Pursuant to R.C. 2967.28, for every first, second or third degree
felony that is an offense of violence, a sentence “shall include a requirement
that the offense be subject to a period of post-release control imposed by
the parole board after the offender’s release from imprisonment.” R.C.
2967.28(B). For a first degree felony, that period is five years. R.C.
2967.29(B)(1). Singleton’s sentence did include the statutorily mandated
term of post-release control, as the Termination Entry reflects he was
sentenced to a period of up to five years of post-release control under the
1 We note that post-release control does not apply to unclassified felonies such as
aggravated murder. State v. Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, 893 N.E.2d 462,
¶ 36. However, it does apply to Singleton’s other offenses, which are classified felonies.
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supervision of the Parole Board in the event he is released from prison, and
he failed to raise any issue in his direct appeal. As such, the principles of
res judicata apply.
(Doc. #4 at 3).
{¶ 5} On appeal, Singleton repeats his argument that the trial court erred in failing
to impose a mandatory term of five years of post-release control. Therefore, he insists
that the post-release control portion of his sentence is void and that resentencing for
proper imposition of post-release control is required. In response, the State insists that
the trial court was not required to use the word “mandatory” when imposing post-release
control. The State then reasons:
In this case, Singleton was advised both during the sentencing
hearing (Tr. 1681) and in the trial court’s written sentencing entry (issued
12.12.97) that, if released, he would be required to serve up to five years of
post-release control. Therefore, the trial court complied with R.C. 2929.19,
and Singleton’s sentence is not void. His first assignment of error being
without merit, it should be overruled, and the trial court’s October 13, 2016
Decision denying his motion for re-sentencing should be affirmed.
(Appellee’s brief at 3).
{¶ 6} Upon review, we find Singleton’s assignment of error to be persuasive. The
problem is not that the trial court failed to recite the word “mandatory” when it advised
Singleton about post-release control. The problem is that the trial court advised Singleton
at his sentencing hearing and in its termination entry that he faced “up to five years” of
post-release control. This court repeatedly has held that imposing post-release control for
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“up to” a certain period of time, when post-release control is mandatory for that period of
time, renders the post-release control portion of a defendant’s sentence void, not merely
voidable. See, e.g., State v. Tanksley, 2d Dist. Clark No. 2015-CA-80, 2016-Ohio-2963,
¶ 24 (“In light of the foregoing, we conclude that the trial court’s imposition of post-release
control for Tanksley’s aggravated robbery conviction is void as a result of the improper
‘up to’ language that is contained in the sentencing entry.”); State v. Jones, 2d Dist.
Montgomery No. 26228, 2015-Ohio-1749, ¶ 5 (“It has been repeatedly held that ‘up to’
language is insufficient when post-release control is mandatory and such error causes
the post-release control portion of the sentence to be void.”); State v. Adkins, 2d Dist.
Greene No. 2010-CA-69, 2011-Ohio-2819, ¶ 6 (“In the present case, the trial court
advised Adkins orally, and in its re-sentencing entry, that he was subject to mandatory
post-release control for ‘up to’ five years. The parties agree that, in reality, Adkins was
subject to mandatory post-release control for the entire five years. Logically, ‘up to’ five
years also includes five years and could not conceivably prejudice the defendant. But, the
case law is to the contrary. Therefore, the post-release control portion of Adkins’s
sentence is void.”).
{¶ 7} In light of the foregoing authority, we hold that the portion of Singleton’s
sentence imposing post-release control for “up to five years” is void. That being so, res
judicata did not preclude him from raising the issue. State v. Smith, 2d Dist. Montgomery
No. 27272, 2017-Ohio-4327, ¶ 6 (recognizing that “a void sentence can be challenged at
any time and is not subject to res judicata”). If the trial court properly had advised
Singleton about post-release control at his sentencing hearing, it simply could issue a
nunc pro tunc entry accurately reflecting his five-year post-release control obligation.
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State v. Qualls, 131 Ohio St. 3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 13-14. But the
trial court erroneously used the “up to” language when advising Singleton about post-
release control at his sentencing hearing too. (Tr. Vol. VIII at 1681). Thus, a new
sentencing hearing limited to the proper imposition of post-release control is required. Id.
at ¶ 23; State v. Brown, 2d Dist. Montgomery No. 25653, 2014-Ohio-2551, ¶ 20-21.
{¶ 8} For the foregoing reasons, we sustain Singleton’s assignment of error. The
trial court’s judgment is reversed, and the cause is remanded for resentencing limited to
the proper imposition of post-release control for all classified felonies on which Singleton
has not completed his prison term.2
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DONOVAN, J. and TUCKER, J., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
Bryan K. Singleton
2 As noted above, post-release control does not apply to Singleton’s aggravated-murder
conviction, which is an unclassified felony. In addition, we note that a trial court cannot
impose post-release control when a defendant already has completed his sentence for a
particular offense, regardless of whether he remains in prison for other offenses. State v.
Holdcroft, 137 Ohio St. 3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 19. Here, in addition to
a prison term of life with parole eligibility after 30 years for aggravated murder and an
accompanying three-year firearm specification, the trial court imposed consecutive prison
terms of 10 years for aggravated robbery, 10 years for aggravated burglary, and one year
for having a weapon under disability for each of the remaining classified offenses. If the
trial court were to determine that the sentences are being served in the order in the
indictment, or in the order of severity, then Singleton has yet to complete the 30 year
minimum on the aggravated-murder and post release control may be imposed for each
of the classified offenses.
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Hon. Michael W. Krumholtz