State v. Morisak , 2016 Ohio 8275 ( 2016 )

[Cite as State v. Morisak, 2016-Ohio-8275.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 15CA21
v. : DECISION AND
JUDGMENT ENTRY
VANSON MORISAK, :
Defendant-Appellant. : RELEASED: 12/15/2016
APPEARANCES:
Robert W. Bright, Middleport, Ohio for appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney and C. Michael Gleichauf,
Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio for appellee.
Hoover, J.
{¶ 1} Defendant-appellant Vanson Morisak (“Morisak”) appeals his sentence from the
Lawrence County Common Pleas Court. Morisak pleaded guilty to one count of burglary, a
second degree felony, in violation of R.C. 2911.12(A)(3). In exchange for Morisak’s guilty plea,
the State of Ohio (“State”) recommended a sentence of four years in prison. The trial court
accepted Morisak’s guilty plea, found him guilty of the offense of burglary, and sentenced him to
four years in prison.
{¶ 2} Here on appeal, Morisak asserts two assignments of error. In his first assignment of
error, Morisak contends that the trial court erred by failing to notify him of the mandatory period
of post-release control required for his conviction. After a review of the record, we find that
Morisak is correct that the trial court failed to notify him about post-release control at the
Lawrence App. No. 15CA21 2
sentencing hearing. Accordingly, we sustain Morisak’s first assignment of error and remand this
cause for resentencing limited to the issue of the proper imposition of post-release control.
{¶ 3} In his second assignment of error, Morisak raises two issues, (1) that his trial
counsel was ineffective and (2) that he suffered from a drug and alcohol addiction. We find that
these claims are without merit. Therefore, we overrule Morisak’s second assignment of error.
{¶ 4} Accordingly, we affirm Morisak’s convictions but remand this cause for
resentencing limited to the issue of the proper imposition of post-release control. We affirm in
part and reverse in part the judgment of the trial court; and we remand the cause for proceedings
consistent with this decision.
I. Facts and Procedural Posture
{¶ 5} In May 2015, a complaint against Morisak for a charge of burglary was filed in the
Lawrence County Municipal Court. In June 2015, the Lawrence County Grand Jury indicted
Morisak on one count of burglary, a second degree felony, in violation of R.C. 2911.12(A)(3).
The record is sparse with respect to the facts underlying the indictment. However, we have
discerned that Morisak had entered the home of Eric Wall without his permission. Morisak took
a four-wheeler, a ramp to load the vehicle, and some miscellaneous tools from the attached
garage.
{¶ 6} In July 2015, Morisak waived his right to a trial by jury and pleaded guilty to one
count of burglary as charged in the indictment. In exchange for Morisak’s plea of guilty, the
State recommended a sentence of four years in prison. The trial court sentenced Morisak to four
years in prison. On August 26, 2015, the trial court filed its final judgment entry. The entry
reflected that “[t]he Court informed the Defendant that he shall be subject to a period of post-
Lawrence App. No. 15CA21 3
release control.” However, after reviewing the transcript of the sentencing hearing, it is apparent
that the trial court did not notify Morisak about post-release control at the sentencing hearing.
{¶ 7} On September 28, 2015, Morisak, through appellate counsel, filed a notice of
appeal. Because his notice of appeal was filed late, Morisak subsequently filed a motion for
leave to file a delayed appeal. This Court granted Morisak’s motion; and the appeal proceeded.
{¶ 8} On December 23, 2015, Morisak’s appellate counsel then filed a brief and motion
to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In
his brief, appellate counsel raised the issue of the trial court’s failure to impose post-release
control as a potential assignment of error. We granted the motion to withdraw; but we appointed
new counsel to prepare an appellate brief for Morisak discussing the post-release control issue,
as well as any further arguable issues, which could be found in the record. New appellate counsel
was appointed; and now Morisak presents this appeal.
II. Assignments of Error
{¶ 9} Morisak presents the following assignments of error for our review:
First Assignment of Error:
The trial court erred by failing to accurately notify appellant about post-release
control and/or the potential consequences for violating post-release control at
appellant’s sentencing hearing.
Second Assignment of Error:
Additional issues that appellant wants argued but for which appellant’s counsel
believes there is not sufficient basis in law or fact to argue.
III. Law and Analysis
Lawrence App. No. 15CA21 4
A. First Assignment of Error- The Trial Court Failed to Inform Morisak Of Post-Release
Control During The Sentencing Hearing.
{¶ 10} In his first assignment of error, Morisak contends that the trial court failed to
properly notify him about post-release control during sentencing. Morisak asserts that (1) at the
change of plea hearing, the trial court suggested that post-release control was discretionary rather
than mandatory; and (2) at the sentencing hearing, the trial court did not even mention post-
release control. Although Morisak references the change of plea hearing, in his appellate brief he
specifically requests that “the post-release control portion of his sentence be set aside and asks
this court order the same.” Therefore, we will only address Morisak’s challenge to the post-
release control portion of his sentence.
{¶ 11} The State, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, asserts that the Ohio Supreme Court has held that when a trial court fails to properly
impose post-release control only that portion of the sentence is void. Accordingly, the State
argues that the proper remedy is to remand this cause to the trial court for resentencing limited to
the proper imposition of post-release control.
1. Standard of Review
{¶ 12} When reviewing felony sentences we apply the standard of review set forth in
R.C. 2953.08(G)(2). See State v. Marcum, Ohio St.3d , 2016-Ohio-1002,
N.E.3d , ¶ 1. R.C. 2953.08(G)(2) specifies that an appellate court may increase,
reduce, modify, or vacate and remand a challenged felony sentence if the court clearly and
convincingly finds that “the record does not support the sentencing court’s findings” under the
specified statutory provisions or “the sentence is otherwise contrary to law.”
2. Analysis
Lawrence App. No. 15CA21 5
{¶ 13} In this case, while the final judgment entry states, “[t]he Court informed the
Defendant that he shall be subject to a period of post-release control[,]” a review of the
sentencing hearing transcript reveals no such notification.
Under R.C. 2929.19(B)(2)(c) and (e), a trial court must notify certain felony
offenders at the sentencing hearing that: 1.) the offender is subject to statutorily
mandated postrelease control; and 2.) the parole board may impose a prison term
of up to one-half of the offender’s originally-imposed prison term if the offender
violates the post-release control conditions. Not only is a trial court required to
notify the offender about postrelease control at the sentencing hearing, it is further
required to incorporate that notice into its journal entry imposing sentence.
However, the main focus of the postrelease control sentencing statutes is on the
notification itself and not on the sentencing entry.
(Citations and quotations omitted.) State v. Adkins, 4th Dist. Lawrence No. 13CA17, 2014–
Ohio–3389, ¶ 36. “When a trial court fails to provide the required notification at either the
sentencing hearing or in the sentencing entry, that part of the sentence is void and must be set
aside.” (Emphasis sic.) Id. at ¶ 37, citing Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, 942
N.E.2d 332 at ¶¶ 27–29. “ ‘[I]n most cases, the prison sanction is not void and therefore “only
the offending portion of the sentence is subject to review and correction.” ’ ” Id., quoting State v.
Holdcroft, 137 Ohio St.3d 526, 2013–Ohio–5014, 1 N.E.3d 382, ¶ 7, quoting Fischer at ¶ 27.
{¶ 14} The trial court convicted Morisak of a second degree felony. Thus, Morisak was
subject to a mandatory period of three years of post-release control. R.C. 2967.28(B)(2). After a
review of the sentencing hearing transcript, it is clear that the trial court did not inform Morisak
that he would be subject to post-release control, nor did it inform him of the sanctions for
Lawrence App. No. 15CA21 6
violation of post-release control. Because the trial court failed to do so, that portion of Morisak’s
sentence is void; and we sustain his first assignment of error.
B. Second Assignment of Error- Morisak’s Other Arguments Are Without Merit.
{¶ 15} In his second assignment of error, Morisak’s appellate counsel raises two potential
issues but also states that there is nothing in the record to establish either claim. The two
arguments are (1) that Morisak’s trial counsel was ineffective and (2) that Morisak has serious
drug or alcohol addiction issues. The State argues that neither claim has merit.
1. Ineffective Assistance of Counsel
{¶ 16} Criminal defendants have a right to counsel, including a right to the effective
assistance from counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d
763 (1970), fn. 14; State v. Stout, 4th Dist. Gallia No. 07CA5, 2008-Ohio-1366, ¶ 21. To
establish constitutionally ineffective assistance of counsel, a criminal defendant must show (1)
that his counsel’s performance was deficient and (2) that the deficient performance prejudiced
the defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E .2d 904 (2001);
State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In order to show deficient
performance, the defendant must prove that counsel’s performance fell below an objective level
of reasonable representation. To show prejudice, the defendant must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have been different.”
State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “Failure to
establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116,
2008-Ohio-968, ¶ 14.
Lawrence App. No. 15CA21 7
{¶ 17} “When considering whether trial counsel’s representation amounts to deficient
performance, ‘a court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.’ ” State v. Walters, 4th Dist. Washington Nos.
13CA33, 13CA36, 2014-Ohio-4966, ¶ 23, quoting Strickland at 689. “Thus, ‘the defendant must
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.’ ” Id., quoting Strickland at 689. “ ‘A properly licensed attorney
is presumed to execute his duties in an ethical and competent manner.’ ” Id., quoting State v.
Taylor, 4th Dist. Washington No. 07CA1, 2008-Ohio-482, ¶ 10. “Therefore, a defendant bears
the burden to show ineffectiveness by demonstrating that counsel’s errors were so serious that he
or she failed to function as the counsel guaranteed by the Sixth Amendment.” Id.{¶ 18} At a hearing before the trial court on July 15, 2015, Morisak stated that he “felt
very uncomfortable” because counsel, other than his appointed counsel, represented him at his
arraignment. Morisak then requested that his appointed counsel be replaced. The trial court
denied Morisak’s request. The trial court explained that Morisak simply entered a plea of not
guilty at arraignment. Therefore, Morisak took no action that determined the outcome of his
case.
{¶ 19} We agree with the trial court regarding Morisak’s arraignment. Also, in the form
“PROCEEDING ON PLEA OF GUILTY” Morisak answered “yes” to question number 5, “Did
your attorney explain to you your constitutional rights and what might happen to you if you
plead guilty?” Further, Morisak answered “yes” to question number 7, “Do you have confidence
in your attorney?” During the change of plea hearing, the trial court engaged in the following
exchange with Morisak:
Lawrence App. No. 15CA21 8
Court: The second [document Morisak signed in relation to his guilty
plea] is a proceeding on plea of guilty which is four pages, twenty
six questions that you answer with the help of your defense
attorney and sir is that your signature at the bottom of the last
page?
Morisak: Yes sir.
Court: The answers that you gave to these questions are they truthful to
the best of your knowledge?
Morisak: Yes sir.
(7-22-15, pg. 2-3)
{¶ 20} Based on the foregoing, Morisak cannot demonstrate that but for his trial
counsel’s performance, the outcome of his proceedings would have been different. Accordingly,
we do not find that Morisak’s trial counsel was ineffective.
2. Morisak’s Drug/Alcohol Addiction
{¶ 21} Morisak’s appellate counsel states that Morisak told him about an addiction issue.
However, there is nothing in the record indicating that Morisak raised this issue before the trial
court. Therefore, nothing exists in the record that we can rely upon to find that Morisak’s
addiction affected the outcome of his case or rendered his guilty plea invalid.
{¶ 22} Accordingly, we overrule Morisak’s second assignment of error.
IV. Conclusion
{¶ 23} Based on the foregoing, we affirm Morisak’s convictions, but remand the matter
for resentencing limited to the issue of the proper imposition of post-release control.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED.
Lawrence App. No. 15CA21 9
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART and
that the CAUSE BE REMANDED for further proceedings consistent with this opinion.
Appellant and appellee shall split the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County
Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ____________________________
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.