State v. CapersState v. Capers
DICKINSON, Judge.
INTRODUCTION
{¶1} During an altercation with his girlfriend, Tiara Miller, Lamar Capers discharged a gun into the floor of Ms. Miller‘s neighbor‘s apartment. Following a bench trial, Mr. Capers was convicted of having a weapon while under disability with a firearm specification, possession of cocaine, and aggravated menacing. He was sentenced to a total of seven years in prison. Mr. Capers has appealed. His convictions are partially affirmed and partially reversed because: (1) the trial court did not deny him his right to self-representation and he invited the court‘s indulgence of his requests to be involved in his own defense; (2) the trial court did not commit plain error by failing to inquire into the attorney-client relationship; (3) Mr. Capers has not demonstrated that his lawyer‘s performance was deficient or that there is a reasonable probability that, but for his lawyer‘s performance, the result of his trial would have been different; (4) Mr. Capers’ convictions were based on sufficient evidence and were not against the manifest weight
BACKGROUND
{¶2} In the early morning hours of December 15, 2009, Jillian Brewer Roark awoke to find her neighbor, Ms. Miller, inside Ms. Roark‘s apartment. According to Ms. Roark, Ms. Miller was upset and crying because she was fighting with her boyfriend, Mr. Capers. Mr. Capers was outside in the parking lot yelling that he would shoot Ms. Miller‘s car if she did not allow him to enter the locked apartment building. After he calmed down, Ms. Roark opened the back door for him and ran back to lock her apartment door before he could enter the building. Soon, Mr. Capers was knocking on her door and trying to coax Ms. Miller to open it.
{¶3} According to Eric Ortiz, who was sleeping in Ms. Roark‘s apartment when Ms. Miller arrived, Mr. Capers did enter Ms. Roark‘s apartment and convince Ms. Miller to go across the hall to Ms. Miller‘s apartment to discuss their differences. About five minutes later, Ms. Miller ran back to Ms. Roark‘s apartment screaming and locked the door again. Soon, however, Mr. Capers successfully convinced Ms. Miller to open Ms. Roark‘s door so that they could talk. As soon as the door opened, Mr. Capers put something to Ms. Miller‘s temple, held it there for a few seconds, and then began to lower it. Mr. Ortiz and Ms. Roark testified that, by the shape of the item and the way Mr. Capers held it, it appeared to be a gun hidden inside a Crown Royal bag made of purple cloth. As Mr. Capers began to lower the gun, it went off, shooting a hole in Ms. Roark‘s living room floor. According to both Ms. Roark and Mr. Ortiz, everyone, including Mr. Capers, seemed shocked to hear the gun go off. Ms. Miller and Mr. Capers both testified
{¶4} Ms. Roark said that Mr. Capers continued to try to talk to Ms. Miller, but Ms. Miller refused to speak to him until he got rid of the gun. Ms. Roark saw Mr. Capers go into the hallway with the gun and then enter Ms. Miller‘s apartment without it. Ms. Miller went into the hallway and came back with the gun a few seconds later. Ms. Miller gave the gun, still in the Crown Royal bag, to Ms. Roark and asked her to hide it. Then Ms. Miller returned to her apartment with Mr. Capers. Ms. Roark hid the bag in the pocket of a coat that was hanging in her closet and called the police. When police arrived, they found and arrested Mr. Capers in Ms. Miller‘s apartment.
{¶5} The State charged Mr. Capers with discharging a firearm at or into a habitation with a repeat violent offender specification, having a weapon while under disability due to a prior conviction for a felony offense of violence with a firearm specification, having a weapon while under disability due to a prior drug conviction with a firearm specification, possession of drugs, aggravated menacing, and domestic violence. Mr. Capers waived his right to a jury and tried the case to the court.
{¶6} At trial, Mr. Capers expressed some displeasure with his lawyer‘s performance. After the State had presented its two eye-witnesses, Mr. Capers asked the Court to recall them because his lawyer had refused to ask some questions that Mr. Capers wanted his lawyer to ask. Mr. Capers made it clear that he would like for his lawyer to continue representing him, but that he wanted more control over his defense. The trial court told him it would consider recalling the witnesses to allow Mr. Capers an opportunity to ask additional questions. Later, during the direct examination of a police officer, Mr. Capers objected and posed a question. The trial court
{¶7} The trial court found Mr. Capers not guilty of discharging a firearm at or into a habitation and not guilty of domestic violence. It dismissed the repeat violent offender specification and found him guilty of all other counts and specifications. The court then merged the two counts of having a weapon while under disability and the multiple firearm specifications so that Mr. Capers was convicted of one count of having a weapon while under disability with a single firearm specification. He has assigned six errors for review.
POST-RELEASE CONTROL
{¶8} Mr. Capers’ first assignment of error is that the trial court‘s judgment must be vacated and this matter remanded for re-sentencing due to a post-release control notification error. He has argued that, although the trial court correctly included mandatory post-release control in his sentencing entry, it failed to notify him of post-release control during his sentencing hearing. The transcript of the sentencing hearing does not include any reference to post-release control.
{¶10} Under
{¶11} As Mr. Capers was sentenced after the effective date of
HYBRID DEFENSE
{¶12} Mr. Capers’ second assignment of error is that the trial court committed plain error by permitting him to act as co-counsel with his court-appointed lawyer. Although the State has agreed with Mr. Capers that the trial court erred in this regard, it has not appealed the trial court‘s judgment. As Mr. Capers has pointed out, criminal defendants have no constitutional right to hybrid representation. State v. Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471, at ¶31. “Although appellant has the right either to appear pro se or to have counsel, he has no corresponding right to act as co-counsel on his own behalf.” Id. (quoting State v. Thompson, 33 Ohio St. 3d 1, 6-7 (1987)). The Ohio Supreme Court has held that “[n]either the United States Constitution, the Ohio Constitution nor case law mandates . . . hybrid representation.” Id. (quoting Thompson, 33 Ohio St. 3d at 6). It has mentioned the many troubling issues that can arise from hybrid representation, including the difficulty of determining, until after the trial “whether the defendant had enjoyed representation by counsel, self-representation or hybrid representation, for ‘[t]he question is one of degree.‘” Id. at ¶34 (quoting Parren v. State, 309 Md. 260, 269 (1987)). In this case, this Court need not determine “on what side of the murky line” Mr. Capers’ representation fell. Id. at ¶35 (quoting Parren, 309 Md. at 269).
{¶13} The doctrine of invited error prohibits any party from taking advantage of “an error that he himself invited or induced.” State v. Rohrbaugh, 126 Ohio St. 3d 421, 2010-Ohio-3286, at ¶10 (quoting State ex rel. Kline v. Carroll, 96 Ohio St. 3d 404, 2002-Ohio-4849, at ¶27).
{¶14} Furthermore, Mr. Capers has correctly argued that the applicable standard of review is plain error because he did not object in the trial court and preserve this issue for appeal.
{¶15} Mr. Capers has not made such a showing in this case. He has not explained how he believes the outcome of his trial “clearly would have been otherwise” had the trial court
{¶16} Mr. Capers has also argued that the trial court effectively denied him his constitutional right to self-representation, but he never asserted that right. A defendant must assert his right to self-representation in an unequivocal and timely manner, or it is forfeited. State v. Cassano, 96 Ohio St. 3d 94, 2002-Ohio-3751, at ¶38. Additionally, a defendant will not be granted the right to represent himself absent a valid waiver of his right to counsel. State v. Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471, at ¶38-39 (citing
FAILURE TO REPLACE TRIAL COUNSEL
{¶17} Mr. Capers’ sixth assignment of error is that the trial court committed plain error by failing to inquire into the attorney-client relationship and replace the court-appointed lawyer
{¶18} In Williams, the Sixth District Court of Appeals held that, “where defense counsel places the trial court on notice that continued representation places counsel in an ethical dilemma, and counsel raises issues of his client‘s constitutional rights, the court must conduct a careful and in-depth review into all the facts and circumstances.” State v. Williams, 123 Ohio App. 3d 233, 236 (1997). In King, the trial court had failed to consider the defendant‘s pro se motion to dismiss trial counsel that he had filed the first day of trial. The Fourth District held that, “[if], during trial an indigent defendant questions the effectiveness and adequacy of assigned counsel, it is the duty of the trial court to inquire into the complaint and make the inquiry part of the record.” State v. King, 104 Ohio App. 3d 434, 437 (1995).
{¶19} This Court has held that “[a]n indigent defendant has a right to competent counsel, not a right to counsel of his own choosing.” State v. Harrison, 9th Dist. No. 20080, 2001 WL 39600 at *1 (Jan. 17, 2001) (quoting State v. Blankenship, 102 Ohio App. 3d 534, 558 (1995)). There is no constitutional right to a “meaningful attorney-client relationship.” Id. (quoting Morris v. Slappy, 461 U.S. 1, 13-14 (1983)). “Rather, an indigent defendant is entitled to the appointment of substitute counsel only upon a showing of good cause, such as conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust result.” Id. (quoting Blankenship, 102 Ohio App. 3d at 558).
{¶20} This case is not similar to State v. King, 104 Ohio App. 3d 434 (1995), because Mr. Capers never asked to fire and replace his court-appointed lawyer. It is not similar to State v. Williams, 123 Ohio App. 3d 233 (1997), because Mr. Capers’ lawyer did not express concern
INEFFECTIVE ASSISTANCE OF COUNSEL
{¶21} Mr. Capers’ fourth assignment of error is that he was denied effective assistance of counsel because his lawyer failed to hire an expert, ask certain questions, and respect his client. “To obtain a reversal of a conviction on the basis of ineffective assistance of counsel, the defendant must prove (1) that counsel‘s performance fell below an objective standard of reasonableness, and (2) that counsel‘s deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio St. 3d 378, 388-89 (2000) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). In order to demonstrate that the deficient performance caused him prejudice, a defendant “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient
{¶22} First, Mr. Capers has argued that his lawyer should have hired an expert to test the substance identified as cocaine base and the gunshot residue kit used on Mr. Capers. “A decision by trial counsel not to call an expert witness generally will not sustain a claim of ineffective assistance of counsel.” State v. Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, at ¶118 (citing State v. Coleman, 45 Ohio St. 3d 298, 307-08 (1989)). Nothing in the record indicates that independent defense experts would have offered more favorable testimony, so Mr. Capers cannot show that his lawyer‘s decision caused him prejudice. To the extent that this argument is dependent on evidence outside the record, it is more appropriately reserved for a petition for post-conviction relief. See State v. Cole, 2 Ohio St. 3d 112, 114 (1982).
{¶23} In any event, Mr. Capers has not shown that, but for his lawyer‘s decision not to call an independent expert to examine the gunshot residue kit, there was a reasonable probability that the result of his trial would have been different. Even if an expert had testified that Mr. Capers’ hands were negative for gunshot residue, the trial court could have reasonably believed that Mr. Capers had a gun and held it to Ms. Miller‘s head, although the bag in which the gun was hidden may have protected his hands from any residue when the gun discharged. To the extent that it addressed his lawyer‘s failure to call expert witnesses, Mr. Capers’ fourth assignment of error is overruled.
{¶24} Second, Mr. Capers has argued that his lawyer caused him substantial prejudice by failing to ask the State‘s eye-witnesses a series of questions Mr. Capers believes would have proven that they had motive to lie and were not credible. In this case, after the State rested its case, the trial court asked Mr. Capers to write a list of questions that he would have liked to have
{¶25} Third, Mr. Capers has argued that his lawyer did not respect him, causing him prejudice. According to Mr. Capers, the disrespect is obvious because his lawyer called him stupid. There is no evidence in the record that Mr. Capers’ lawyer called his client any names or was otherwise disrespectful toward him. Even assuming that Mr. Capers’ lawyer said something disrespectful to him in court, since this case was tried to the bench, the trial court presumably ignored any inappropriate comments by counsel. State v. Wiles, 59 Ohio St. 3d 71, 86 (1991). Mr. Capers has not made “an affirmative showing to the contrary” in order to overcome the presumption. Id. (citing State v. Post, 32 Ohio St. 3d 380, 384 (1987)). Therefore, to the extent it addressed the allegation of disrespect, Mr. Capers’ fourth assignment of error is overruled.
SUFFICIENCY AND MANIFEST WEIGHT
{¶26} The first part of Mr. Capers’ third assignment of error is that the verdicts were based on insufficient evidence. Although he has asserted that all of his convictions were based on insufficient evidence, most of his arguments relate to the manifest weight of the evidence. Mr. Capers’ only true sufficiency argument is that the State failed to produce sufficient evidence that he was guilty of having a weapon while under disability as charged in count three of the
{¶27} Whether a conviction is supported by sufficient evidence is a question of law that this Court reviews de novo. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997); State v. West, 9th Dist. No. 04CA008554, 2005-Ohio-990, at ¶33. We must determine whether, viewing the evidence in a light most favorable to the prosecution, it could have convinced the average finder of fact of Mr. Capers’ guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, paragraph two of the syllabus (1991).
{¶28} Mr. Capers was found guilty of violating
{¶29} The State offered the testimony of Mr. Capers’ parole officer, Jerry Grammes. Mr. Grammes testified that he began working with Mr. Capers in June 2006 when Mr. Capers was released from prison following a conviction for complicity to felonious assault. According to the record, the State introduced (through Mr. Grammes) certified copies of judgment entries from 2002 and 2009, reflecting convictions in Lorain County case numbers 01CR058629, 08CR075957, and 09CR078798. According to the testimony, the judgment entries reflected that Mr. Capers had been previously convicted of possession of cocaine and several counts of possession of marijuana. Mr. Capers has argued that this evidence was insufficient to prove that he had been convicted of an offense involving the possession of a drug of abuse because Mr.
{¶30} The second part of Mr. Capers’ third assignment of error is that the verdicts were not supported by the manifest weight of the evidence. If a defendant argues that his convictions are against the manifest weight of the evidence, this Court “must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App. 3d 339, 340 (1986).
Possession of Cocaine
{¶31} The trial court convicted Mr. Capers of “knowingly . . . possess[ing] . . . a controlled substance.”
{¶32} Officer Mark Mitchell testified that, when he entered Ms. Miller‘s bedroom, he found Mr. Capers lying naked on the bed. According to Officer Mitchell, Mr. Capers asked if he could get dressed and pointed to a pair of pants and shorts. The officer testified that there were no other men in the apartment and the pants appeared to fit Mr. Capers. Mr. Capers later took the stand and never denied that he owned the pants he was wearing that morning. In fact, he testified that the police “asked me where my pants and my clothes [were] . . . [t]hen they . . . gave me my pants . . . [and] I put on my pants.” Officer Ben Miracle testified that police did not locate the cocaine during an initial pat-down at the scene, but that he found it later when he was doing a more thorough search at the police station. There is no conflict in the evidence. The police officers testified that they believed the pants belonged to Mr. Capers, and Mr. Capers also referred to the pants as his own. The trial court reasonably concluded that Mr. Capers knowingly possessed the crack cocaine found in the pocket of his own pants.
{¶33} Mr. Capers has also argued that his drug possession conviction is against the manifest weight of the evidence because the forensic scientist who testified about the substance corrected her report to show that the crack cocaine was not adulterated with levamisole as she had originally reported. Elizabeth Doyle testified that she corrected her report after determining that she had made a typo in her initial report. Mr. Capers has argued that Ms. Doyle‘s testimony is unreliable because of this discrepancy. The trial court believed that the substance found in Mr.
Having a Weapon While Under Disability
{¶34} Mr. Capers was also convicted of having a weapon while under disability with a firearm specification. Under
{¶35} Mr. Capers has argued that he did not have a gun nor did he shoot a gun on the morning in question. He has argued that his convictions are against the manifest weight of the evidence because his witnesses were more credible than the State‘s witnesses, the gunshot residue test was not reliable, and the police failed to test other people or surfaces for gunshot residue.
{¶36} Mr. Capers has attacked the reliability of the gunshot residue test because he believes the evidence indicates that Sergeant Mayne could have contaminated him with the gunshot residue that was found on his hands. Sergeant David Mayne testified that, sometime before he checked Mr. Capers’ pants for weapons before allowing him to dress, he had handled
{¶37} Mr. Capers has also argued that the results of the test were not credible because, according to the forensic testimony, both hands were positive for residue, but Mr. Capers testified that police tested only his right hand. The officer who submitted the test, however, testified that he swabbed both of Mr. Capers’ hands as required by the kit‘s instructions. Having weighed the evidence and all reasonable inferences, and considering the credibility of the witnesses, this Court cannot say that the trial court lost its way in resolving the conflicts in the evidence related to the gunshot residue test.
{¶38} Mr. Capers has argued that his witnesses were more credible than the State‘s witnesses because Mr. Ortiz and Ms. Roark both suffer from mental disorders and Mr. Ortiz‘s testimony did not match his statement made to police on the day of the incident. Mr. Ortiz testified that he was being treated for depression and that he had attempted to commit suicide. He said that he takes a prescription medication for his depression, but that he was not taking it on the night of the incident. He also testified that the medicine does not affect his memory. Ms. Roark testified that she takes prescription medication and regularly sees doctors and therapists to treat her bipolar and borderline personality disorders. She also said that she has been on the same dosage of the same medication for four years and she does not suffer from any side effects of it.
{¶39} Mr. Capers has argued that the manifest weight of the evidence supported his version of events, including that there was no gun involved in the incident. Mr. Ortiz testified that he was sleeping at Ms. Roark‘s apartment when he awoke to the sound of Ms. Miller screaming. He said that Mr. Capers was outside in the parking lot and Ms. Miller and he were screaming and arguing through the window of Ms. Miller‘s apartment. Later, someone let Mr. Capers into Ms. Roark‘s apartment. Mr. Capers had a purple and gray bag with something inside that was shaped like a gun. According to Mr. Ortiz, Mr. Capers held it up to Ms. Miller‘s temple for a moment, then lowered it and discharged a bullet into the living room floor. Mr. Capers has argued that Mr. Ortiz is not credible because he never saw a gun and his written statement to police did not include a reference to a gun being fired or what happened to the gun after the incident was over.
{¶40} Mr. Ortiz testified that he never saw the gun, but that the object in the bag appeared to be a gun because of its shape. He testified that he knew a round had been shot from the gun when he heard the sound of a gun being discharged and saw the “powder[ ]” after it went off. Sergeant Mayne testified that, on the morning of the incident, Mr. Ortiz told him that Mr. Capers came into Ms. Roark‘s apartment, put a gun to Ms. Miller‘s head, and then shot a round into the floor.
{¶41} Ms. Roark gave a similar statement to police. When police arrived at her apartment, she gave Sergeant Mayne a Crown Royal bag with a .32 caliber revolver inside. Sergeant Mayne testified that the bag had a hole in it with burning around the edges. He testified that this was consistent with Ms. Roark‘s report about a gun being shot from inside the bag. She also showed police a hole in her living room carpet, which she claimed was caused by the bullet from that gun. She told police that she had seen smoke coming from that area of the floor after
{¶42} After the State rested, Mr. Capers presented the testimony of Ms. Miller and then testified on his own behalf. Both Ms. Miller and Mr. Capers testified that, although they had engaged in a mild argument early that morning, it never became violent and there was no gun involved. They both testified that they were in Ms. Roark‘s apartment briefly, but they never saw a gun that morning and never heard one discharge. They both said Mr. Capers does not carry a gun, but they had heard that Mr. Ortiz did.
{¶43} According to Sergeant Mayne, after taking a report from Ms. Roark, he went across the hall to Ms. Miller‘s apartment. Ms. Miller took some time to answer the door, then refused to tell him whether Mr. Capers was in her apartment. Ms. Miller denied any knowledge of why the police would have been called and demanded to see a warrant. Sergeant Mayne told her they were there to secure her safety and entered the apartment. Sergeant Mayne testified that he found Mr. Capers in Ms. Miller‘s bed. Mr. Capers was cooperative, but denied all knowledge of an argument, a gun, or even being in Ms. Roark‘s apartment that morning. Sergeant Mayne then questioned Ms. Miller separately, and she also denied having been in Ms. Roark‘s apartment, having argued with Mr. Capers, and knowing anything about a gun. After speaking again with Ms. Roark and Mr. Ortiz, Sergeant Capers tried again to speak with Ms. Miller, but she would not make any statement about the incident. According to Sergeant Mayne, when
{¶44} Based on the evidence, the trial court may have reasonably concluded that Ms. Miller and Mr. Capers were romantically involved and coordinated a fictional account of their interaction that morning in order to protect Mr. Capers. Both of them initially told police that they had not had any altercation nor had they been in Ms. Roark‘s apartment, but later both testified that they had a mild argument about Mr. Capers being late to babysit and admitted that both of them had been in Ms. Roark‘s apartment at some point that morning. The trial court determined that, despite concealing it in a bag, Mr. Capers knowingly had or used a firearm and brandished or indicated that he possessed it when he held it to Ms. Miller‘s head before firing it into the floor. In considering all the evidence and weighing the credibility of the witnesses, this Court cannot say that the trial court lost its way and created a manifest miscarriage of justice in resolving the conflicts in the evidence. To the extent that it addressed Mr. Capers’ convictions for having a weapon while under disability with a firearm specification, his third assignment of error is overruled.
Aggravated Menacing
{¶45} Mr. Capers was also convicted of aggravated menacing. He has argued that this conviction is against the manifest weight of the evidence because Ms. Miller testified that she never feared for her life or even felt that she was in danger. Under
OTHER ACTS
{¶46} Mr. Capers’ fifth assignment of error is that the trial court should not have admitted testimony about his alleged violent history with Ms. Miller. Under
{¶47} Mr. Capers has argued that the trial court should have excluded two of Ms. Roark‘s statements under
{¶48} Mr. Capers did not object to the admission of either of these statements. Therefore, he has forfeited all but plain error on appeal. State v. Dent, 9th Dist. No. 20907, 2002-Ohio-4522, at ¶6. An appellate court may take notice of plain errors “with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St. 2d 91, paragraph three of the syllabus (1978); see also
{¶49} The trial court did not commit plain error by permitting Ms. Roark to make these two statements. Not only was there plenty of other evidence tending to show that Mr. Capers had committed the crimes for which he was convicted, the trial court acquitted him of two charges, including one for domestic violence. Furthermore, Mr. Capers tried his case to the court. To the extent that inadmissible evidence may have been received, the trial court is presumed to have disregarded it in making its decision. State v. Post, 32 Ohio St. 3d 380, 384 (1987) (“this court indulges ‘. . . in the usual presumption that in a bench trial in a criminal case the court considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.‘“) (quoting State v. White, 15 Ohio St. 2d 146, 151 (1968)). Mr. Capers has not affirmatively shown that the trial court relied on either of the two statements by Ms. Roark. Mr. Capers’ fifth assignment of error is overruled.
CONCLUSION
{¶50} Mr. Capers’ second assignment of error is overruled. The trial court did not deny Mr. Capers his right to self-representation and the court‘s indulgence of his requests to be involved in his own defense, if error, were invited by Mr. Capers and did not rise to the level of plain error. Mr. Capers’ third assignment of error is overruled because his convictions were based on sufficient evidence and were not against the manifest weight of the evidence. Mr. Capers’ fourth assignment of error is overruled because he has not demonstrated that his lawyer‘s performance was deficient or that there is a reasonable probability that, but for his lawyer‘s performance, the result of his trial would have been different. Mr. Capers’ fifth assignment of error is overruled. The trial court did not commit plain error by permitting Ms. Roark to testify about Mr. Capers’ violent history with Ms. Miller. His sixth assignment of error is overruled because the trial court did not commit plain error by failing to inquire into the attorney-client relationship in order to determine whether his lawyer should have been dismissed and replaced. Mr. Capers’ first assignment of error is sustained because the trial court failed to notify Mr. Capers at his sentencing hearing that he would be subject to post-release control. The judgment of the Lorain County Common Pleas Court is reversed with respect to the post-release control it imposed. The remainder of the judgment is affirmed. The cause is remanded to the trial court for the limited purpose of allowing it to follow the procedures set forth in
Judgment affirmed in part,
reversed in part,
and cause remanded.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to both parties equally.
CLAIR E. DICKINSON
FOR THE COURT
CARR, P. J.
WHITMORE, J.
CONCUR