State v. Berecz
2010 Ohio 5855
Ohio Ct. App.2010Background
- Berecz was convicted in 2008 of attempted murder with firearm and peace officer specifications, receiving a 38-year aggregate sentence.
- On appeal, this court affirmed in part and reversed in part, ruling the court could not impose both firearm and peace officer specifications.
- Remand corrected the sentence to 35 years, imposing the peace officer specification but not the firearm specification.
- On remand the court informed Berecz that he would be subject to mandatory postrelease control upon release.
- Original sentencing entry had incorrectly stated that postrelease control 'may' apply, not 'mandatory'.
- Berecz argued he was entitled to a de novo sentencing hearing due to improper notification, but the court disagreed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did omitting the word 'mandatory' void the original sentence? | Berecz (State) argues void sentence requiring de novo hearing. | Berecz contends lack of mandatory notice voids sentence entitling new hearing. | Not void; remedies under 2929.191 apply. |
| Whether postremand correction procedures apply for postrelease control notification after 2006? | State relies on 2929.191 and Singleton to fix deficiencies. | Berecz contends prior-law framework governs voidness and de novo hearing. | Procedures of 2929.191 apply; not a void sentence. |
| Whether Berecz was entitled to a de novo sentencing hearing after remand? | State asserts correction suffices without new de novo hearing. | Berecz seeks de novo hearing due to notification error. | No de novo hearing required; correction appropriate. |
Key Cases Cited
- State v. Jordan, 104 Ohio St.3d 21 (2004-Ohio-6085) (requires journal entry to include postrelease control notice)
- State v. Bezak, 114 Ohio St.3d 94 (2007-Ohio-3250) (void sentence if postrelease control not properly notified; de novo hearing)
- State v. Simpkins, 117 Ohio St.3d 420 (2008-Ohio-1197) (approval of 2929.191 corrective procedure for postrelease control)
- State v. Singleton, 124 Ohio St.3d 173 (2009-Ohio-6434) (clarifies applicability of 2929.191 to post-2006 sentences)