Opinion
No. 95438.
RELEASED AND JOURNALIZED: June 9, 2011.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-391413.
AFFIRMED; REMANDED FOR CORRECTION OF JOURNAL ENTRY.
Robert L. Tobik, Cuyahoga County Public Defender, John T. Martin, Assistant Public Defender, Attorneys for Appellant.
William D. Mason, Cuyahoga County Prosecutor, By: Thorin O. Freeman, Assistant County Prosecutor, Attorneys for Appellee.
Before: Cooney, J., Blackmon, P.J., and Jones, J.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant-appellant, Robert Turner ("Turner"), appeals the trial court's resentencing him to properly impose postrelease control. Finding no merit to the appeal, we affirm.
{¶ 2} In 2000, Turner was convicted of one count of aggravated burglary and four counts of felonious assault. He was sentenced to a total of 11 years in prison. In 2001, Turner appealed his conviction and sentence, and this court affirmed. State v. Turner, Cuyahoga App. No. 78520, 2002-Ohio-3766, appeal not allowed, 95 Ohio St.3d 1458, 2002-Ohio-2230, 767 N.E.2d 1177.
{¶ 3} In 2010, Turner filed a motion for a final judgment, arguing that the trial court failed to properly impose postrelease control during his original sentencing and, therefore, his sentence is void. The State filed a response in which it argued that although Turner should be resentenced to impose postrelease control, his sentence is not void. The trial court held a resentencing hearing on June 25, 2010, at which it properly imposed five years of postrelease control and advised Turner that a violation could be punished by up to one-half of his prison sentence.
The journal entry, however, failed to include the notice of consequences for a violation of postrelease control. Pursuant to Crim. R. 36, we remand for a correction of the journal entry.
{¶ 4} Turner now appeals, raising one assignment of error.
{¶ 5} In his sole assignment of error, Turner argues that the trial court erred when it failed to conduct a "sentencing de novo." He contends that the court denied him his right of allocution when it imposed only postrelease control and not a prison term.
{¶ 6} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph one of the syllabus, the Ohio Supreme Court held that "[f]or criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose postrelease control, trial courts shall conduct a de novo sentencing hearing in accordance with decisions of the Supreme Court of Ohio." See, also, State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568; State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961.
{¶ 7} Recently, however, the Ohio Supreme Court held in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, that "[t]he new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control. ( State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus, modified.)" Fischer, paragraph two of the syllabus. The Fischer court explained:
{¶ 8} "that when a judge fails to impose statutorily mandated postrelease control as part of a defendant's sentence, that part of the sentence is void and must be set aside. Neither the Constitution nor common sense commands anything more." Id. at ¶ 26. (Emphasis in original and internal citations omitted.)
{¶ 9} Therefore, the trial court did not err in resentencing Turner to postrelease control without reimposing the remainder of his entire sentence. Pursuant to Fischer, he was not entitled to a complete resentencing. "[O]nly the offending portion of the sentence is subject to review and correction." Id. at ¶ 27. Turner was entitled to a new sentencing hearing limited to the proper imposition of postrelease control. The court achieved this goal.
The Fischer court overruled the portion of the Bezak syllabus that required a complete resentencing hearing rather than a hearing restricted to the void portion of the sentence. Id. at ¶ 36.
{¶ 10} Accordingly, Turner's sole assignment of error is overruled.
Judgment affirmed. Case remanded for correction of the journal entry pursuant to App. R. 9(E) and Crim. R. 36 to include the consequences for a violation of postrelease control.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, P.J., and LARRY A. JONES, J., CONCUR