State v. FalkensteinState v. Falkenstein
{¶ 1} Defendant-appellant, Donald Falkenstein, appeals the trial court‘s judgment denying his “motion to set aside/vacate or in the alternat[ive] resentence him on an otherwise void sentence.” We find merit to his appeal and reverse and remand.
{¶ 2} In 2003, Falkenstein was convicted of 41 counts of rape of a child under the age of 13. The trial court sentenced him to consecutive life terms in prison, with the
{¶ 3} In October 2010, Falkenstein filed a pro se “motion to set aside/vacate or in the alternat[ive] resentence him on an otherwise void sentence,” arguing that his sentence was void because the trial court failed to advise him of the mandatory period of postrelease control and of the consequences of a postrelease-control violation. In the sentencing entry, the trial court had notified Falkenstein that postrelease control was part of his “prison sentence for the maximum period allowed for the above felony(s) under
{¶ 4} The state filed a response to Falkenstein‘s motion, agreeing that Falkenstein had not been properly advised of postrelease control and further agreeing that he should be resentenced.
{¶ 5} The trial court, however, denied Falkenstein‘s motion without a hearing because “defendant [was] serving a life sentence.” Falkenstein now argues that the trial court erred when it denied his motion. We agree.
{¶ 6}
{¶ 7} “(B) Each sentence to a prison term for felony of the first degree, *** [or] for a felony sex offense *** shall include a requirement that the offender be subject to a
{¶ 8} “(1) For a felony of the first degree or for a felony sex offense, five years[.]”
{¶ 9} In State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, the Ohio Supreme Court concluded that postrelease control must be imposed upon a defendant who receives an indefinite sentence of life in prison with parole eligibility for a conviction of rape in violation of
{¶ 10} Carnail was convicted of rape and sentenced to an indefinite sentence of life in prison with parole eligibility after ten years. The Supreme Court, however, determined that “[b]ecause
{¶ 11} Because Falkenstein was sentenced on both a first-degree felony and a sex offense, five years postrelease control is mandatory, and the trial court erred when it denied his motion. McCormick at ¶14. The state concedes as much.
{¶ 12} Falkenstein now argues that he is entitled to a resentencing hearing pursuant to
{¶ 13} The procedures in
{¶ 14} In Fischer, 128 Ohio St.3d 92, however, the Ohio Supreme Court modified Bezak, and held that “the new sentencing hearing to which an offender is entitled *** is limited to proper imposition of postrelease control,” not a de novo sentencing hearing. Fischer at paragraph two of the syllabus. The Supreme Court further made clear that remand for resentencing “is just one arrow in the quiver.” Id. at ¶29. It explained that ”
{¶ 16} Judgment reversed, sentence is modified, and case remanded. Upon remand, the trial court is instructed to correct the sentencing entry to reflect the proper period of mandatory postrelease control, i.e., five years, and further, to include the consequences for violating the provisions of postrelease control.
It is ordered that appellant recover of 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
MARY J. BOYLE, JUDGE
PATRICIA ANN BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR