State v. Evans

[Cite as State v. Evans, 2011-Ohio-2153.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95692
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
REGINALD EVANS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED; REMANDED FOR CORRECTION
OF SENTENCING ENTRY
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-400717
BEFORE: Blackmon, P.J., Boyle, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: May 5, 2011
APPELLANT
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Reginald Evans, Pro se
Inmate No. 406-977
Allen Correctional Institution
2338 North West Street
Lima, Ohio 45802-4501
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Kristen L. Sobieski
Assistant County Prosecutor
Justice Center 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant Reginald Evans (“Evans”) appeals pro se the trial
court’s denial of his motion to vacate his sentence and assigns the following
error for our review:
“The trial court erred as a matter of law in refusing to
vacate the void sentence in this case.”
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{¶ 2} Having reviewed the record and pertinent law, we affirm the trial
court’s decision but remand for the trial court to correct the journal entry.
The apposite facts follow.
Facts
{¶ 3} On January 9, 2001, Evans was charged with one count of
aggravated murder with a three-year firearm specification. Evans exercised
his right to a jury trial, and on May 29, 2001, the jury found Evans guilty of
the lesser offense of murder with a three-year firearm specification. The
trial court sentenced Evans to 15 years to life with a consecutive sentence of
three years for the firearm specification.
{¶ 4} Evans filed a direct appeal, and we affirmed his conviction and
sentence. State v. Evans, Cuyahoga App. No. 79895, 2002-Ohio-2610. In
addition to filing an appeal, Evans also filed a petition for postconviction
relief, which the trial court denied. Evans appealed, and we affirmed the
trial court’s decision. State v. Evans, Cuyahoga App. No. 87017,
2006-Ohio-3490.
{¶ 5} On July 21, 2010, Evans filed a “motion to vacate void sentence”
in which he argued the trial court erred by imposing postrelease control,
rendering his entire sentence void. The trial court denied the motion.
Evans now appeals the trial court’s denial of the motion.
Postrelease Control
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{¶ 6} In his sole assigned error, Evans argues the trial court’s
imposition of postrelease control for murder was not authorized pursuant to
R.C. 2967.28; therefore, he claims his entire sentence is void, and he has a
right to a new sentencing hearing.
{¶ 7} Evans was convicted of murder with a firearm specification.
Murder is not a classified felony; it is a special felony subject to a sentence of
life imprisonment with parole eligibility after 15 years. Thus, the
postrelease control statute does not apply to a murder conviction. State v.
Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶36; R.C.
2967.28. R.C. 2967.28(B) provides that postrelease control applies to “each
sentence to a prison term for a felony of the first degree, for a felony of the
second degree, for a felony sex offense, or for a felony of the third degree that
is not a felony sex offense and in the commission of which the offender caused
or threatened to cause physical harm to a person.”1 Thus, the statute does
not provide postrelease control for unclassified felonies. Instead of
postrelease control, when an offender convicted of an unclassified felony is
released from prison he or she is subject to parole. Clark at ¶36; R.C.
2967.13(A)(1).
1
For lesser felonies, R.C. 2967.28(C) provides felonies of the third, fourth, or
fifth degree that are not subject to section (B) receive a period of up to three years
postrelease control.
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{¶ 8} Here, the trial court imposed postrelease control on Evans
without statutory authority to do so. Evans’s murder conviction subjects him
to parole not postrelease control. The query is what should be done to
correct this error. This court has previously found in analogous situations
(where defendant was convicted of murder and postrelease control was
imposed) that the proper remedy for such error was not to find the sentence
void and remand for resentencing, because the defendant, pursuant to the
statute, is not subject to postrelease control. State v. McIntosh, Cuyahoga
App. No. 93714, 2010-Ohio-6471; State v. Rolling, Cuyahoga App. No. 95473,
2011-Ohio-121; State v. McCree, Cuyahoga App. No. 87951, 2007-Ohio-268;
State v. Austin, Cuyahoga App. No. 93028, 2009-Ohio-6108. As this court in
Austin explained:
“While this court has recently held that such broad
language is insufficient to satisfy the statutory
notification requirements when the defendant faces
mandatory postrelease control, we find the instant case
distinguishable because Austin does not face any term of
postrelease control. See generally State v. Siwik,
Cuyahoga App. No. 92341, 2009-Ohio-3896. Accordingly,
we do not find that the sentencing entry is void because it
limits postrelease control to what is authorized under R.C.
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2967.28 and, therefore, does not actually impose any term
of postrelease control.” Id. at ¶7.
{¶ 9} Likewise, in the instant case, the trial court limited postrelease
control to what is authorized under R.C. 2967.28 by stating in the sentencing
entry: “Postrelease control is a part of this prison sentence for the maximum
period allowed for the above felony (s) under R.C. 2967.28.” Because R.C.
2967.28 does not provide for postrelease control for special felonies, no
postrelease control was imposed. Thus, while the discussion of postrelease
control in the sentencing entry was incorrect, it did not render Evans’s
sentence void. Consequently our approach is to remand the matter for the
trial court to correct the sentencing entry to eliminate the postrelease control
language.
{¶ 10} We acknowledge that other districts have held that the
imposition of postrelease control as part of the special felony sentence voids
the entire sentence and have ordered the case remanded for resentencing.
State v. Crockett, 7th Dist. No. 07-MA-233, 2009-Ohio-2894; State v. Long, 1st
Dist. No. C-100285, 2010-Ohio-6115. However, given the Ohio Supreme
Court’s decision in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, these cases are no longer good law. The Fischer court held that
when postrelease control is not properly imposed only the postrelease control
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part of the sentence is void, not the entire sentence. Accordingly, Evans’s
sole assigned error is overruled and judgment is affirmed.
{¶ 11} However, we remand the case to the trial court to correct the
journal entry to eliminate any reference to postrelease control.
Furthermore, it is ordered that appellee recover of appellant its costs
herein taxed.
This court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
MARY J. BOYLE, J., and
EILEEN A. GALLAGHER, J., CONCUR