STATE OF OHIO, Plaintiff-Appellee, vs. DION M. EVANS, Defendant-Appellant.
Case No. 10CA33
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
DATE JOURNALIZED: 9-6-11
[Cite as State v. Evans, 2011-Ohio-4630.]
ABELE, J.
DECISION AND JUDGMENT ENTRY
APPELLANT PRO SE: Dion M. Evans, #537-957, Ross Correctional Institution, P.O. Box 7010, Chillicothe, Ohio 45601, Pro Se
COUNSEL FOR APPELLEE: Judy C. Wolford, Pickaway County Prosecuting Attorney, and Jayme Hartley Fountain, Pickaway County Assistant Prosecuting Attorney, 203 South Scioto Street. P.O. Box 910, Circleville, Ohio 43113
CRIMINAL APPEAL FROM COMMON PLEAS COURT
{¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment that denied a motion for “de novo sentencing” filed by Dion M. Evans, defendant below and appellant herein.
{¶ 2} Appellant assigns the following errors for review:
“THE TRIAL COURT ERRED WHEN IT ALLOWED PETITIONER TO REMAIN INCARCERATED UNDER A VOID SENTENCE IN VIOLATION OF THE DUE PROCESS CLAUSE.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT DENIED PETITIONER A FINAL APPEALABLE ORDER IN VIOLATION OF THE DUE PROCESS CLAUSE.”
{¶ 3} In 2006, appellant was convicted of: (1) two counts of burglary in violation of
{¶ 4} Appellant commenced the instant proceeding on August 24, 2010 with his motion for “de novo sentencing.” Appellant argued that the trial court‘s failure to inform him of the consequences of violating post-release control rendered his sentence void. The trial court overruled his motion and this appeal followed.
{¶ 5} In his first assignment of error, appellant asserts that his sentence is void because
{¶ 6}
” * * * upon your completion of the sentence you‘ll be subject – you shall be subject to post release control. It is mandatory in this case for three years. * * * If you violate those rules and regulations they can return you back to prison to serve additional time, which can total up to one half of the sentence I‘m about to give you.”
Furthermore, a trial court must incorporate notice of post-release control into its journal entry that imposes the court‘s sentence. Hernandez v. Kelly, 108 Ohio St.3d 395, 844 N.E.2d 301, 2006-Ohio-126, at ¶15; State v. Jordan, 104 Ohio St.3d 21, 817 N.E.2d 864, 2004-Ohio-6085, at paragraph one of the syllabus. As the trial noted when it overruled appellant‘s motion, it also complied with this requirement. The 2006 sentencing entry provides “[t]he court has further notified the defendant that he will be subject to a period of post release control of [t]hree years.”
{¶ 7} Finally, appellant argues that the trial court is also required to repeat in its judgment entry notice that the parole board could impose additional prison time of up to one-half of his original sentence for violating post-release control. We agree with appellant on this narrow issue.
{¶ 8} In addition to notifying appellant at his sentencing hearing that he would be subject to postrelease control upon release from prison, as well as the possible sanction that could be imposed for violating postrelease control,
{¶ 9} Although we agree with appellant that the trial court is required to include this information in its entry, we, however, do not agree with his conclusion that the failure to include that notification renders the judgment void and entitles him to a de novo sentencing hearing. The Ohio General Assembly enacted
{¶ 10} Accordingly, based upon the foregoing reasons, we hereby sustain appellant‘s first assignment of error to this limited extent.
II
{¶ 11} Appellant‘s second assignment of error is somewhat difficult to decipher. Nonetheless, in light of the fact that the only issue in this case is whether the trial court erred by overruling appellant‘s motion for “de novo sentencing,” we find this assignment of error to be
{¶ 12} Accordingly, based upon the foregoing reasons, we hereby affirm in part, and reverse in part, the trial court‘s judgment and remand the matter for further proceedings pursuant to
JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed in part, reversed in part and remanded for further proceedings. Appellant shall recover of appellee the 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 Pickaway County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, P.J. & McFarland, J.: Concur in Judgment & Opinion.
For the Court
Peter B. Abele, 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.