State v. BereczState v. Berecz
{¶1} This appeal addresses the appropriate procedure for resentencing a defendant whose original sentence failed to comply with statutory mandates concerning post-release control. The statе convicted Jason Berecz of attempted murder in 2008. He appealed and we affirmed his conviction in part and reversed in part, holding that the trial court made one error in sentencing. On remand, the trial court corrected that error. It also used the remand hearing to inform Berecz that he would be subject to a mandatory term of postrеlease control upon his eventual release from prison, which it failed to do at his original sentencing.
{¶2} Berecz contends that the court did not properly inform him of postrelease control at his original sentencing and thus, his sentence was “void,” entitling him to a de novo sentencing hearing. We disagree. Sentences imposed after July 10, 2006
I. Statement of Facts
{¶3} A grand jury indicted Berecz for a litany of crimes after he shot at and nearly killed a pоlice officer and two innocent passersby. A jury found him guilty of thirteen felony and misdemeanor counts, including a charge of attempted murder with a firearm specification and a peace officer specification. The court sentenced Berecz to 38 years in jail. That sentence included a ten year term for the attempted murder count, as well as consecutive terms of three and seven years for the firearm and peace officer specifications, respectively.
{¶4} Berecz appealed and we affirmed his conviction in part and reversed it in part. See State v. Berecz, Washington App. No. 08CA48, 2010-Ohio-285. Specifically, we held that the trial court erred in sentencing Berecz to prison terms for both the firearm specification and the peace officer specification. We determined that the felony sentencing code permitted the imposition of a sentenсe for one specification, but not both. Id. at ¶60-64. Accordingly, we remanded the case for resentencing.
{¶5} The court held a remand hearing and corrected the sentence, imposing a prison term for the peace officer specification but not the firearm specification. This reduced Berecz‘s aggregate sentence to 35 years. The court also informed Berecz orally and through thе subsequent sentencing entry that he would be subject to mandatory postrelease control. Berecz‘s earlier sentencing entry incorrectly indicated
{¶6} At the conclusion of the hearing, the court asked Berecz‘s сounsel if he wished to make an objection. Berecz‘s counsel stated, “I‘d obviously like a lot less sentence than he‘s getting[.]” The court replied that it did not have the authority to revise the sentence but was limited to what we ordered on remand.
{¶7} Berecz thereafter filed a timely appeal.
II. Assignment of Error
{¶8} Berecz assigns a single error for our review:
{¶9} 1. THE DEFENDANT ALLEGES THAT THE TRIAL COURT‘S FAILURE TO USE THE SPECIFIC WORD “MANDATORY” IN EXPLAINING TO THE DEFENDANT THE CONSEQUENCE OF POST RELEASE CONTROL MADE HIS ORIGINAL SENTENCE VOID.1
III. Effect on Sentence of Failure to Notify
Defendant of Mandatory Post-Release Control
{¶10} In his sole assignment of error, Berecz argues that he was entitled to a de novo sentencing hearing after our remand because the trial court failed to properly notify him in its original sentencing entry of mandatory post-release control upon his release from prison. Berecz cites State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, for the following proposition: a court must vacate and hold a new sentencing hearing for a defendant who was not properly notified of postrelease control at his original sentencing.
{¶12} In Jordan, supra, the Supreme Court of Ohio held that “[w]hen sentencing а felony offender to a term of imprisonment, a trial court is required to notify the offender at the sentencing hearing about postrelease control and is further required to incorporate that notice into its journal entry imposing sentence.” Id. at paragraph one of the syllabus. Later, in State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, the Court held that an offender is entitled to a de novo resentencing hearing when a trial court fails to nоtify the offender of postrelease control. Essentially, when a trial court fails to inform the defendant of postrelease control, it has imposed a sentence thаt is contrary to law, and the sentence is void. Id. at ¶12. And when a sentence is “void,” it is as if there had been no sentencing hearing at all and the judgment is a “nullity.” Id.
{¶13} However, in 2006 the Ohio General Assembly passed
{¶14} The Supreme Court of Ohio held that
{¶15} The Court also addressed the prospective and retrospective effect of
{¶16} The Singleton Court impliedly held that sentences imposed after July 10, 2006, which were deficient for lack of proper notification of postrelease control, are not “void” sentences. But sentences lacking the postrelease control notification and imposed prior to the effective date of
{¶17} Here, the court originally sentencеd Berecz in November 2008 and then resentenced him in March 2010. Under Singleton, the failure to include the word “mandatory” in the judgment entry stemming from the original sentencing did not make that sentence void. In аddition, because Berecz remains incarcerated, the court could use the corrective procedures set forth in
{¶18} Consequently, this assignment of error is meritless.
IV. Conclusion
{¶19} Thus, we overrule Berecz‘s sole assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to сarry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is tо allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeаl prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
McFarland, P.J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.