State v. PesciState v. Pesci
[Please see original opinion at 2011-Ohio-476.]
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas
RELEASED AND JOURNALIZED: March 10, 2011
APPELLANT
James Pesci, Pro Se
35685 West Island Road
Eastlake, Ohio 44095
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Thorin G. Freeman
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ON RECONSIDERATION1
PATRICIA ANN BLACKMON, J.:
{¶ 1} Appellant James Pesci appeals, pro se, the trial court‘s denial of his motions to vacate his sentences and to withdraw his pleas and assigns the following error fоr our review:
“The trial court abused its discretion and committed reversible and/or plain error in violation of the Ohio and United States Constitutions,
Crim.R. 52(B) by denying the appellant‘s motion to vacate the void judgments.”
Facts
{¶ 3} In three different cases, Pesci pled guilty to the following: CR-364532, receiving stolen prоperty; CR-370751, burglary, six counts of receiving stolen property, and one count of possession of a dangerous ordnance; and CR-370752, fоur counts of receiving stolen property. On January 14, 2000, the trial court sentenced Pesci in all three cases to a total of six-and-one-half years in prison. Thus, by June 2006, Pesci had completed his sentences in all three cases.
{¶ 4} On November 13, 2009, Pesci, although having servеd his sentences, filed in each case a motion to vacate the void judgment arguing the trial court failed to impose postrelease control. The trial court denied the motions after indicating that the sentences had expired and no postrelease control would be imposed.
Postrelease Control
{¶ 5} In his sole assigned error, Pesci argues that the trial court erred by refusing to vacate the void judgments.
{¶ 6} While Pesci argues the trial court erred by not advising him of postrelease control at the joint sentencing hearing, the transcript indicates the trial court advised Pesci that he would be subject to postrelease control. The trial court, however, failed to indicate whether the postrelease control would be mandatory or discretionary, or the length of time. In Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, the defendants were fully advised that they could be subject to postrelease control. The problem was that the notice failed to advise them that thе postrelease control was mandatory. Id. at ¶46. The Watkins court noted that the preeminent purpose of
{¶ 7} The trial court, however, was also obligated to include the advisement in the sеntencing entries and failed to do so. State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568; State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864. Because Pesci‘s sentences had expired by the time he filed his motions to vacate, thе trial court was without authority to resentence him. Once an offender has served the prison term ordered by the trial court, he or shе cannot be subject to resentencing in order to correct the trial court‘s failure to properly impose postrelеase control. State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106; State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶18; Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶32; Simpkins at ¶6.
{¶ 8} Pesci argues the appropriate remedy is to vacate his sentences. However, the Ohio Supreme Court in State v. Fischer, Slip Opinion No. 2010-Ohio-6238, held that “when a judge fails to impose statutorily mandated postrelease control as part of the defendant‘s sentenсe, that part of the sentence is void and must be set aside.” Id. at ¶26. Thus, only the void part of the sentence is vacated, not the entire sentence. This is exactly how the trial court handled the matter. The court stated in the journal entry that Pesci was not subject to postrelease control.
{¶ 9} Pesci also argues that because the trial court failed to inform him regarding postrelease control at his guilty pleas, the pleas must be vacated. We note that Pesci failed to provide us with a transcript of his guilty plea; therefore, we are unable to determine if the trial court failed to so advise him. Nonetheless, this court in State v. Cottrell, Cuyahoga App. No. 95053, 2010-Ohio-5254, addressed a similar argument where thе defendant, who had served his sentence, requested a plea to be vacated based on the trial court‘s failure to advisе him of postrelease control at the plea hearing. We held:
“Generally, trial courts are required to treat a
Crim.R. 32.1 motion as a ‘pre-sentence motion’ in cases wherе a void sentence is at issue. See, State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422. But because [the defendant] has already served his void sentence in this case, his motion is treаted as a ‘post-sentence motion’ subject to the more stringent standard of ‘manifest injustice.’ State v. Simone, 9th Dist. No. 24966, 2010-Ohio-1824.” Id. at ¶14.
{¶ 11} We conclude that even if the trial court failed to advise Pesci at his plea hearings regarding postrelease control, the failure did not constitute a mаnifest injustice. Pesci would not have been prejudiced by the omission as he has completed his sentences and is not subject to рostrelease control. Accordingly, Pesci‘s assigned error is overruled.2
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, JUDGE
SEAN C. GALLAGHER, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR