State v. Lawrence , 2011 Ohio 5813 ( 2011 )

[Cite as State v. Lawrence, 2011-Ohio-5813.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24513
v. : T.C. NO. 01CR459
PHILLIP H. LAWRENCE : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 10th day of November , 2011.
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CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CARL G. GORALESKI, Atty. Reg. No. 0024351, 117 S. Main Street, Suite 400, Dayton,
Ohio 45422
Attorney for Defendant-Appellant
PHILLIP H. LAWRENCE, #414996, Warren Correctional Institute, P. O. Box 120,
Lebanon, Ohio 45036
Defendant-Appellant
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FROELICH, J.
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{¶ 1} On August 9, 2001, Phillip H. Lawrence was convicted by a jury of two counts
of murder, each with a firearm specification. The trial court sentenced him to a term of 15
years to life on each murder conviction and to three years on each firearm specification.
The two murder sentences were merged, as were the firearm specifications, for a sentence of
18 years to life. The judgment entry also provided that, with respect to both counts,
Lawrence would be subject to a period of post-release control if he were released from
prison. Lawrence timely appealed his conviction, and this Court affirmed. State v.
Lawrence, Montgomery App. No. 19059, 2002-Ohio-5533.
{¶ 2} In October 2010, Lawrence filed a pro se “Motion to Vacate and Void Sentence
With Full Allocution Rights and Law Entry.” Lawrence argued that the judgment entry
failed to comport with Crim.R. 32(C) because it failed to set forth his plea and, thus, the
entry was not a final appealable order. He further argued that the imposition of post-release
control was contrary to law and rendered the judgment void. The trial court overruled that
motion without a hearing, stating that the improper imposition of post-release control did not
render the judgment void and that the verdict had been properly included in the judgment
entry, as required by Crim.R. 32(C). Lawrence appealed from the trial court’s order. State
v. Lawrence, Montgomery App. No. 24389. That appeal was subsequently dismissed.
{¶ 3} On February 1, 2011, Lawrence was brought before the trial court “for
re-sentencing.” At this re-sentencing hearing, the prosecutor informed the trial court that
“we’re here today to simply correct that the defendant will be on parole, not PRC, upon his
release from prison.” The court reiterated Lawrence’s sentence, told him that he was to
submit a DNA specimen, found him ineligible for shock incarceration or intensive prison
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program, and informed him that he would be subject to parole upon his release from prison.
The following day, the trial court filed a “Nunc Pro Tunc Termination Entry” consistent with
the re-sentencing hearing, including that Lawrence would be on parole, not post-release
control, following his release. Lawrence appeals from the revised judgment entry.
{¶ 4} Lawrence’s counsel has filed a brief pursuant to Anders v. California (1967),
386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493, stating that after a thorough review of the
record, no meritorious issues for appellate review were found. Lawrence was informed of
his counsel’s brief, and he was granted time in order to file a pro se brief. No pro se brief
has been filed. We have conducted an independent review of the record. Penson v. Ohio
(1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.
{¶ 5} In his brief, appellate counsel does not raise any potential assignments of error.
Based on our review of the record, the issues before us are limited to whether the trial court
was correct in changing the judgment entry to reflect parole, rather than post-release control,
and whether there was any arguable error in the trial court’s re-sentencing hearing.
{¶ 6} We find no arguable error in the trial court’s imposition of parole supervision,
rather than post-release control. In 2001, Lawrence was convicted and sentenced for
murder, with a firearm specification; his sentence was life imprisonment, although he was
eligible for release after 18 years. Under R.C. 2901.02, murder is an unclassified felony.
The post-release control statute (R.C. 2967.28) does not apply to those convicted of
unclassified felonies. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶36; R.C.
2967.28. Instead, when a person convicted of an unclassified felony is released from
prison, that person is subject to parole. Id.; R.C. 2967.13(A)(1). Based on Lawrence’s
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conviction for an unclassified felony, the trial court properly revised Lawrence’s judgment
entry to reflect that he would be subject to parole if he were released from prison.
{¶ 7} In addition, we find no potentially meritorious issues based on the trial court’s
handling of Lawrence’s re-sentencing. A sentencing entry which incorrectly imposes
post-release control does not render the entire sentence void. State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, ¶26. Rather, only that portion of the judgment which
improperly imposes post-release control is void. Id.; State v. Evans, Cuyahoga App. No.
95692, 2011-Ohio-2153, ¶8-9. Thus, under Fischer, the portion of Lawrence’s judgment
entry improperly imposing post-release control was void, and the remainder of his sentence
was valid. Fischer at ¶29. See, also, Evans, supra.{¶ 8} The Supreme Court has held that, where the trial court improperly imposes
post-release control, the new sentencing hearing is limited to the proper imposition of
post-release control. Fischer at ¶29. We note, however, that whereas R.C. 2929.19
requires a trial court to properly notify a defendant that he or she will be subject to
post-release control, there is no similar requirement in R.C. 2929.19 to notify a defendant
regarding parole supervision. We find no other authority that required the trial court to
inform Lawrence that he would be subject to parole supervision if he were released from
prison. Accordingly, it is questionable whether the trial court was required to hold a
re-sentencing hearing to notify Lawrence that he was subject to parole, rather than
post-release control, upon his release.
{¶ 9} Even assuming that a re-sentencing hearing was required, Lawrence was
brought before the trial court for re-sentencing for the limited purpose of informing him that
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he would be subject to parole, not post-release control, if he were released from prison. No
other change to Lawrence’s sentence was made; Lawrence was informed of and received the
same sentence that had been previously imposed in 2001. The trial court’s revised
judgment entry (with one paragraph regarding post-release control crossed-out) reflected that
Lawrence’s sentence included parole supervision if he were released, and the entry was
otherwise the same as the 2001 judgment entry. Accordingly, we find no issue with
arguable merit arising from the trial court’s re-sentencing hearing.
{¶ 10} Having conducted an independent review of the record, in addition to the brief
filed by appellant's counsel, we find this appeal to be wholly frivolous. There are no
meritorious issues for appeal.
{¶ 11} The trial court’s judgment will be affirmed.
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FAIN, J. and HALL, J., concur.
Copies mailed to:
Carley J. Ingram
Carl G. Goraleski
Phillip H. Lawrence
Hon. Gregory F. Singer