State v. Davis , 2011 Ohio 6025 ( 2011 )

[Cite as State v. Davis, 2011-Ohio-6025.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 10 MA 160
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
LAWRENCE DAVIS )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 05 CR 193
JUDGMENT: Modified and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Lawrence Davis, Pro se
#494-988
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: November 18, 2011
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WAITE, P.J.
{1} Appellant Lawrence Davis argues that the trial court failed to properly
notify him that he would be subject to post-release control after he was convicted of
five counts of trafficking in cocaine. Appellant contends that his sentence is void due
to the trial court’s error under the holdings of State v. Bezak, 114 Ohio St.3d 94,
2007-Ohio-3250 and State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197. The
record reflects that the trial court informed Appellant regarding post-release control at
his sentencing hearing, but only noted in its judgment entry that he was advised
pursuant to R.C. 2967.28. The trial court did not mention that post-release control
was mandatory or that it was for three years. This notice is insufficient to satisfy the
requirements of R.C. 2929.14(F). See State v. Jones, 7th Dist. No. 06 MA 17, 2009-
Ohio-794. Appellant’s assignments of error are correct. For the following reasons,
we hereby modify and correct the sentence to properly apprise him of post-release
control. This remedy is consistent with the holding in State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶30. The case is remanded for the sole
purpose of allowing the trial court to issue a corrected sentencing entry.
History of the Case
{2} On March 3, 2005, Appellant was indicted on five counts of drug
trafficking. Each count was charged under R.C. 2925.03(A)(1). Counts one and
three were fourth degree felonies, counts four and five were third degree felonies,
and count two was a second degree felony. Appellant was convicted by jury and a
sentencing hearing was held on December 12, 2005. Appellant acknowledges that
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he was properly informed about post-release control at that hearing. The court filed
its sentencing judgment entry on December 14, 2005. The court sentenced
Appellant to one year in prison on count one, five years on count two, one year on
count three, two years on count four, and two years on count five, to be served
consecutively, for an aggregate prison term of eleven years. The judgment entry
noted that: “Defendant was also advised pursuant to R.C. 2967.28.” Appellant filed
a timely appeal to this Court, and he was partially successful in challenging his
sentence. Counts one and four were dismissed on appeal, and his sentence was
reduced to eight years in prison. State v. Davis, 7th Dist. No. 05 MA 235, 2007-Ohio-
7216, appeal not allowed by 118 Ohio St.3d 1408, 2008-Ohio-2340, 886 N.E.2d 872.
Counts two (a second degree felony), three (a fourth degree felony), and five (a third
degree felony) were affirmed. He filed a motion to reopen his appeal, which was
denied. State v. Davis, 7th Dist. No. 05 MA 235, 2008-Ohio-2927.
{3} Appellant filed a motion for postconviction relief, which was overruled
by the trial court, and the judgment was affirmed on appeal. State v. Davis, 7th Dist.
No. 08 MA 16, 2008-Ohio-6211.
{4} On August 23, 2010, Appellant filed a motion to correct a void
sentence. The trial court held a hearing on the motion on September 9, 2010. The
hearing transcript is not part of the record. The court overruled the motion on
September 21, 2010. This appeal followed on October 10, 2010.
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ASSIGNMENTS OF ERROR NOS. 1 AND 2
{5} “The trial court committed reversible error when it failed to properly
include post-release control into its judgement [sic] entry of sentence journalized on
December 14, 2005; violating R.C. §2967.28 and Mr. Davis’ right to Due Process
protected by both the Ohio and United States Constitutions.
{6} “The trial court abused its discretion when it overruled Mr. Davis’ Motion
to Correct a Void Sentence for lack of properly imposed post-release control.”
{7} Both of Appellant’s assignments of error deal with the allegation that the
court’s sentencing entry fails to properly give notice of post-release control, and thus,
they will be treated together. Post-release control is a period of supervision by the
Ohio Adult Parole Authority following release from prison. Appellant argues that,
under R.C. 2929.19(B)(3), R.C. 2967.28(B) and (C), and 2929.14(F), a trial court
must notify a defendant about post-release control at the sentencing hearing and
must also include a notice in the sentencing judgment entry. Appellant is correct that,
when a person is being sentenced for a felony crime, the trial court must give notice
of post-release control at the sentencing hearing and in the final judgment entry.
State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864. Failure to
adequately notify a defendant about post-release control can result in a
determination that the sentence, or part of the sentence, is void. Id. at ¶23.
{8} Appellant contends that the phrase used in his sentencing judgment
entry is not adequate notice of post-release control. The judgment entry states:
“Defendant was also advised pursuant to R.C. 2967.28.” (12/14/05 J.E.) Appellant
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correctly points out a mere reference to the post-release control statute does not
provide sufficient notice of post-release control. State v. Jones, 7th Dist. No. 06 MA
17, 2009-Ohio-794; see also, State v. O’Connor, 7th Dist. No. 10 MA 81, 2010-Ohio-
6384; State v. Harrison, 7th Dist. No. 09MA187, 2010-Ohio-2746; State v. Hagans,
7th Dist. Nos. 09-MA-2, 09-MA-3, 2009-Ohio-6526. Appellee, in rebuttal, cites to a
case from the Sixth District, State v. Rossbach, 6th Dist. No. L-09-1300, 2011-Ohio-
281, to establish that a mere reference to R.C. 2967.28 is sufficient notice. The
notice given in Rossbach, though, was more extensive than the notice given in the
instant case or in Jones, and therefore, Rossbach is inapposite to the issue in this
appeal.
{9} Errors in notifying a defendant about post-release control have
generated much litigation in Ohio. Jordan, supra, held that that a sentence that does
not contain the proper notifications about post-release control must be vacated. Id.
at paragraph two of the syllabus. In Bezak, supra, the Ohio Supreme Court held that,
without the proper post-release control notifications, the sentencing entry is void in its
entirety and that the defendant is entitled to a completely new sentencing hearing.
Id. at syllabus.
{10} Various problems arose in applying Bezak, particularly with regard to
questions of res judicata in cases that had already been through the direct appeal
process but were later found to have issues regarding notification of post-release
control. It became unclear when, if ever, such cases became final, or how to deal
with resentencing and subsequent appeal if the post-release control error was
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detected after the direct appeal had ended. These issues were largely resolved in
State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. Fischer
partially overruled Bezak and explained how appellate courts should treat sentencing
entries that fail to properly explain post-release control. Fischer held that only that
portion of the sentencing judgment entry dealing with post-release control is void,
rather than the entire sentence. Id. at ¶26. Fischer has given rise to the concept of a
“partially void” judgment. Fischer made it clear that, rather than conducting a de
novo resentencing to correct a post-release control error, trial courts may only
resentence to correct the erroneous or omitted provision for post-release control. Id.
at ¶29. Fischer also gave the courts of appeals the new option of directly correcting
a partially void sentence entry arising from a post-release control error. This remedy
involves modifying the sentence without remanding the case to the trial court for a
new resentencing hearing:
{11} “[W]e hold that the new sentencing hearing to which an offender is
entitled under Bezak is limited to proper imposition of postrelease control. In so
holding, we come more into line with legislative provisions concerning appellate
review of criminal sentences. R.C. 2953.08(G)(2)(b) permits an appellate court, upon
finding that a sentence is clearly and convincingly contrary to law, to remand for
resentencing. But a remand is just one arrow in the quiver. R.C. 2953.08(G)(2) also
provides that an appellate court may ‘increase, reduce or otherwise modify a
sentence * * * or may vacate the sentence and remand the matter to the sentencing
court for resentencing.’ (Emphasis added.) Correcting a defect in a sentence without
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a remand is an option that has been used in Ohio and elsewhere for years in cases
in which the original sentencing court, as here, had no sentencing discretion.
{12} “Correcting the defect without remanding for resentencing can provide
an equitable, economical, and efficient remedy for a void sentence. Here, we adopt
that remedy in one narrow area: in cases in which a trial judge does not impose
postrelease control in accordance with statutorily mandated terms.” (Citations
omitted.) Id. at ¶29-30.
{13} In this appeal, it appears that the trial court did not include enough
information in the judgment entry to fulfill the statutory post-release control
notification requirements. The judgment entry does not state that the defendant was
subject to mandatory post-release control or for how long. Therefore, Appellant’s
assignments of error are partially well-taken. Appellant desires the remedy of a new
sentencing hearing, but that remedy is not appropriate in this case. Pursuant to
Fischer, we hereby modify and correct Appellant’s post-release control to apprise him
of post-release control, and we remand the case to the trial court with instructions to
correct the sentencing entry to reflect this advisement. The following additional
language, or language substantially similar, must be added to the sentencing
judgment entry:
{14} “The offender will be supervised under section 2967.28 of the Revised
Code after the offender leaves prison, including a mandatory period of three (3) years
of post-release control imposed by the parole board. If the offender violates that
supervision or a condition of post-release control imposed under division (B) of
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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”.
Vukovich, J., concurs.
DeGenaro, J., concurs.