State v. AtkinsonState v. Atkinson
vs.
DEFENDANT-APPELLANT
JUDGMENT: VACATED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-456940
RELEASED: June 17, 2010
JOURNALIZED:
FOR APPELLANT
11308 Durant Avenue
Cleveland, Ohio 44108
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Thorin Freeman
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant, Lashawn Atkinson (“Atkinson“), pro se, appeals the trial court‘s imposition of postrelease control. Finding merit to the appeal, we vacate the order of postrelease control.
{¶ 2} In October 2004, Atkinson was charged with the illegal conveyance of prohibited items into a detention facility, drug trafficking, and drug possession. Pursuant to a plea agreement, he pled guilty to drug trafficking and the remaining counts were nolled. In January 2005, the trial court sentenced him to an agreed minimum sentence of three years in prison.1 The trial court advised Atkinson that when he is released from prison, he would be on parole, and if he violated his parole terms and conditions, he could receive additional administrative time. The corresponding journal entry indicated that “[p]ost release control is part of this prison sentence for the maximum time allowed for the above felony(s) under
{¶ 3} In January 2008, Atkinson was released from prison and placed on five years of postrelease control. In June 2009, he filed a motion requesting that the trial court vacate his void sentence because he was not
{¶ 4} Atkinson now appeals, raising one assignment of error claiming that his sentence is void. He essentially argues that the court erred when it resentenced him and imposed five years of postrelease control after he had already served his three-year sentence. The State concedes this assignment of error and requests that the order of postrelease control be vacated.
{¶ 5} 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 recently 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.” Thus, the trial court in the instant case was required to conduct a de novo sentencing hearing because Atkinson was sentenced in 2005.
{¶ 6} In reviewing decisions where postrelease control was lacking, the Singleton court noted:
“In State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, this court considered the consequences of a trial court‘s failure to
advise an offender about postrelease control at the sentencing hearing. Id. at ¶1. Applying [State v. Beasley (1984), 14 Ohio St.3d 74, 471 N.E.2d 774], we held that ‘[b]ecause a trial court has a statutory duty to provide notice of postrelease control at the sentencing hearing, any sentence imposed without such notification is contrary to law’ and void, and the cause must be remanded for resentencing. Id. at ¶23, 27. “We again confronted a sentencing court‘s failure to notify or incorporate postrelease control into its sentencing entry in Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301; however, in that case, discovery of the sentencing error did not occur until after the offender had been released from prison, placed on postrelease control by the parole board, and reimprisoned for violating the terms of postrelease control. Id. at ¶4-7. There, we granted a writ of habeas corpus in conformity with our decisions in Jordan and [Woods v. Telb, 89 Ohio St.3d 504, 2000-Ohio-171, 733 N.E.2d 1103], holding that the parole board lacked authority to impose postrelease control because the trial court had failed to notify the offender of postrelease control or to incorporate it into the sentencing entry and because Hernandez had completed serving that sentence when the error was discovered. Id. at ¶32.
* *
“In State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, we concluded that an offender is entitled to a de novo sentencing hearing for the trial court to correct a sentence that omitted notice of postrelease control. * * * Importantly, because Bezak had already completed his term of imprisonment, the trial court could not, consistent with our decision in Hernandez * * * conduct a resentencing.
“* * *
“Most recently, in State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, we * * * held that when a court fails to impose postrelease control before an offender completes the stated term of imprisonment, under either our caselaw or
R.C. 2929.191 , the offender must be discharged, ¶69-71.” Id. at ¶14-18, 20.
{¶ 8} Although the trial court conducted a de novo sentencing hearing, we note that “[o]nce an offender has served the prison term ordered by the trial court, he or she cannot be subject to resentencing in order to correct the trial court‘s failure to impose postrelease control at the original sentencing hearing.” State v. Marsh, Cuyahoga App. No. 89281, 2007-Ohio-6491, ¶9, citing Bezak at ¶18. See, also, State v. Schneider, Cuyahoga App. No. 89033, 2007-Ohio-5536; State v. Harris, Cuyahoga App. No. 89128, 2007-Ohio-6850; State v. Fletcher, Cuyahoga App. No. 89458, 2008-Ohio-320. Thus, the trial
{¶ 9} Accordingly, the sole assignment of error is sustained.
{¶ 10} The order of postrelease control is vacated, and the matter is remanded for the court to order termination of postrelease control.
It is ordered that appellant recover of said appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
KENNETH A. ROCCO, P.J., and
LARRY A. JONES, J., CONCUR