State v. EvansState v. Evans
{¶ 1} Appellant Reginald Evans (“Evans“) appeals рro se the trial court‘s denial of his motion to vacate his sentence and assigns the following error for our review:
“Thе trial court erred as a matter of law in refusing to vacate the void sentence in this case.”
Facts
{¶ 3} On January 9, 2001, Evans was charged with one count of aggravated murder with a three-year firearm specification. Evans exercised his right to a jury trial, and on May 29, 2001, the jury found Evans guilty of the lesser offense of murder with a three-year firearm specification. The trial court sentenced Evans to 15 years to life with a consecutive sentence of three years for the firearm specification.
{¶ 4} Evans filed a direct appeal, and we affirmed his conviction and sentence. State v. Evans, Cuyahoga App. No. 79895, 2002-Ohio-2610. In addition to filing an appeal, Evans also filed a petition for postconviction relief, which the trial court denied. Evans appealed, and we affirmed the trial court‘s decision. State v. Evans, Cuyahoga App. No. 87017, 2006-Ohio-3490.
{¶ 5} On July 21, 2010, Evans filed а “motion to vacate void sentence” in which he argued the trial court erred by imposing postrelease control, rendering his entire sentence void. The trial court denied the motion. Evans now appeals the trial court‘s denial of the motion.
Postrelease Control
{¶ 7} Evans was convicted of murder with a firearm specification. Murder is not a classified felony; it is a speciаl felony subject to a sentence of life imprisonment with parole eligibility after 15 years. Thus, the postrelease control statute does not apply to a murder conviction. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶36;
“While this court has recently held that such broad language is insufficient to satisfy the statutory notifiсation requirements when the defendant faces mandatory postrelease control, we find the instant case distinguishаble because Austin does not face any term of postrelease control. See generally State v. Siwik, Cuyahoga App. No. 92341, 2009-Ohio-3896. Accordingly, we do not find that the sеntencing entry is void because it limits postrelease control to what is authorized under
R.C. 2967.28 and, therefore, does not аctually impose any term of postrelease control.” Id. at ¶7.
{¶ 9} Likewise, in the instant case, the trial court limited postrelease control to what is authorized under
{¶ 10} We acknowledge that other districts have held that the imposition of рostrelease control as part of the special felony sentence voids the entire sentence аnd have ordered the case remanded for resentencing. State v. Crockett, 7th Dist. No. 07-MA-233, 2009-Ohio-2894; State v. Long, 1st Dist. No. C-100285, 2010-Ohio-6115. However, given the Ohio Supreme Court‘s decision in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, these cases are no longer good law. The Fischer court held that when postrelease control is not properly imposed only the postrelease control
{¶ 11} However, we remand the case to the trial court to correct the journal entry to eliminate any reference to postrelease control.
Furthermore, it is ordered that appellee recover of appellant its costs herein taxed.
This court finds thеre were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, PRESIDING JUDGE
MARY J. BOYLE, J., and
EILEEN A. GALLAGHER, J., CONCUR