State v. SilgueroState v. Silguero
Rendered on December 8, 2011
Ron O‘Brien, Prosecuting Attorney, and Sarah W. Creedon, for appellee.
Shaw & Miller, and Mark J. Miller, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶1} Defendant-appellant, Armando Silguero, appeals from a judgment of the Franklin County Court of Common Pleas denying his motion for resentencing. For the reasons that follow, we affirm the judgment of the trial court.
{¶2} In relation to the death of his wife, Ericka Silguero, appellant was indicted by a Franklin County Grand Jury on August 3, 2001, for aggravated murder and
{¶3} Appellant appealed to this court arguing that his convictions were not supported by sufficient evidence. On November 12, 2002, rejecting appellant‘s arguments, this court affirmed appellant‘s convictions in State v. Silguero, 10th Dist. No. 02AP-234, 2002-Ohio-6103. The trial court‘s January 17, 2002 judgment entry, however, stated that appellant was convicted of murder in violation of
{¶4} On September 1, 2010, appellant filed a pro se motion for a de novo sentencing hearing. In that motion, appellant argued that his sentence was void because it referenced post-release control in non-specific terms rather than stating appellant was subject to a mandatory five-year term of post-release control. The state filed a memorandum contra noting that because appellant was convicted of an unclassified felony, there should be no post-release control included in his sentence. Though this motion was not ruled on, the record reflects that on November 1, 2010, the trial court filed a “Corrected Judgment Entry.” This entry, however, is identical in all respects to that filed
{¶5} On February 4, 2011, appellant filed through counsel a motion for resentencing arguing that his sentence was void and that he was entitled to a de novo sentencing hearing. Specifically, appellant challenged the following language from the judgment entry, “[a]fter the imposition of the sentence, the Court notified the Defendant, orally and in writing, of the possibility of the applicable periods of post-release control pursuant to
{¶6} This appeal followed and appellant brings the following assignment of error for our review:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT‘S MOTION FOR A DE NOVO RESENTENCING HEARING.
{¶7} In his sole assignment of error, appellant contends the trial court‘s imposition of post-release control for a murder conviction was not authorized by law; therefore, appellant claims his entire sentence is void and that he has a right to a new sentencing hearing.
{¶9} In State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, the Supreme Court of Ohio held that if a trial court failed to notify an offender about post-release control, pursuant to
{¶10} Recently, the Supreme Court decided State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, and reaffirmed that if a sentence does not include the statutorily-mandated term of post-release control, it is void. Id. at paragraph one of the syllabus. The court added that such a void sentence is not precluded from appellate review by principles of res judicata and may be reviewed at any time, on direct appeal or by collateral attack. The Fischer court also modified Bezak, holding “[t]he new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control.” Fischer at paragraph two of the syllabus. Accordingly,
{¶11} In support of his position that he is entitled to a de novo sentencing hearing, appellant relies on cases that have held that a trial court‘s erroneous inclusion of post-release control for unclassified felony convictions renders an entire sentence void and requires a de novo sentencing hearing. See State v. Crockett, 7th Dist. No. 07-MA-233, 2009-Ohio-2894; State v. Long, 1st Dist. No. C-100285, 2010-Ohio-6115; State v. Austin, 8th Dist. No. 93028, 2009-Ohio-6108; State v. Wright, 9th Dist. No. 24610, 2009-Ohio-6081. These cases, however, predate the Fischer decision, and, therefore, we conclude they no longer constitute persuasive authority. State v. Evans, 8th Dist. No. 95692, 2011-Ohio-2153, ¶10 (after the Fischer decision, Crockett and Long “are no longer good law“).
{¶12} In Evans, the Eighth District Court of Appeals reviewed the trial court‘s denial of the defendant‘s “motion to vacate void sentence.” Id. at ¶5. The basis for the defendant‘s challenge was that the sentence imposed for his murder conviction erroneously included post-release control. Relying on Fischer, the Evans court concluded that not only were Crockett and Long no longer good law, but, also, that the proper remedy for the erroneous inclusion of post-release control was to remand the matter for the trial court to correct the sentencing entry by eliminating the post-release control language.
{¶13} Similarly, in State v. Lawrence, 2d Dist. No. 24513, 2011-Ohio-5813, the defendant was convicted of murder and the judgment entry provided that the defendant was subject to a period of post-release control if he were released from prison. The
{¶14} The defendant‘s counsel filed an appellate brief, pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, and the appellate court stated that the issue before it was whether the trial court was correct in changing the judgment entry to reflect parole, rather than post-release control and whether there was any “arguable error” that occurred at the resentencing hearing. Lawrence at ¶5. The Lawrence court concluded that, pursuant to Fischer, only “the portion of Lawrence‘s judgment entry improperly imposing post-release control was void, and the remainder of his sentence was valid.” Id. at ¶7, citing Fischer at ¶29 and Evans.
{¶15} Importantly, the court went on to note that while a trial court is required to notify a defendant that he or she will be subject to post-release control, there is no similar requirement that a trial court notify a defendant about parole supervision. Because the court found no other authority requiring that the trial court inform the defendant that he would be subject to parole supervision if released from prison, the court stated, “it is questionable whether the trial court was required to hold a re-sentencing hearing to notify Lawrence that he was subject to parole, rather than post-release control, upon his release.” Id. at ¶8. Notwithstanding, the court held that “[e]ven assuming that a re-
{¶16} In the case sub judice, the trial court included post-release control language in appellant‘s sentence even though appellant was convicted of murder, an unclassified felony. Pursuant to Fischer, and also Evans and Lawrence, it is clear that this does not render appellant‘s entire sentence void, nor does it require a de novo sentencing hearing. Moreover, the record reflects that the superfluous post-release control language has been removed from the sentencing entry pursuant to the judgment entry filed on March 17, 2011.1
{¶17} For these reasons, appellant‘s assignment of error is overruled and the judgment of the Franklin County Court of Common Pleas denying appellant‘s motion for a de novo sentencing hearing is hereby affirmed. However, other than deletion of the post-release control language, the March 17, 2011 judgment entry is in all respects the same as the original 2002 and the November 2010 judgment entries. That being said, we note that the judgment entry still contains the clerical error this court noted in its decision that affirmed appellant‘s convictions, i.e., the judgment entry states appellant was convicted under
Cause remanded with instructions; judgment affirmed.
BRYANT, P.J., and KLATT, J., concur.
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