State v. SmallsState v. Smalls
For Plaintiff-Appellee
JOHN D. FERRERO
PROSECUTING ATTORNEY
RONALD MARK CALDWELL
ASSISTANT PROSECUTOR
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
For Defendant-Appellant
TAWANN LAVAR SMALLS, PRO SE
RICHLAND CORRECTIONAL INSTITUTE
Post Office Box 8107
Mansfield, Ohio 44901-8107
{¶1} Appellant Tawann Lavar Smalls appeals the July 11, 2008, Judgment оf Stark County Common Pleas Court denying his Motion for Resentencing.
{¶2} Appellee is State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} In 1999, Tawann Lavar Smalls was charged in an indictment returned by the Stark County Grand Jury with six counts of felonious assault with an attendant firearm speсification for each count, and one count of having weapons while under disability. Smalls рleaded not guilty to these charges and specifications, and proceeded tо trial by jury in the Stark County Court of Common Pleas. The jury found Smalls guilty as charged, and the trial court imposеd an aggregate prison term of 19 years.
{¶4} Appellant appealed his convictiоns and sentences to this Court, raising two assignments of error: a challenge to the jury array; and а challenged based on the manifest weight of the evidence. This Court overruled both assignments of error, and affirmed Appellant‘s convictions and sentences.
{¶5} On June 30, 2008, Appellant filed a motion with the trial court for re-sentencing. In said motion, Appellant argued that he was entitled to a new sentencing hearing because the trial court allegedly did not properly impose his term of post-release control.
{¶6} By Judgment Entry filed July 11, 2008, the trial court summarily overruled the mоtion by judgment entry.
{¶7} Appellant now appeals to this Court, assigning the following error for review:
{¶8} “I. WHERE A SENTENCE IS VOID AS A MATTER OF LAW BECAUSE IT DOES NOT CONTAIN A STATUTORILY MANDATED TERM OF ‘PROPERLY IMPOSE’ [SIC] POST RELEASE CONTROL, A TRIAL [SIC] ABUSES ITS DISCRETION WHEN DENYING A DEFENDANT‘S GOOD FAITH MOTION FOR RESENTENCING PURUSANT TO THE PROVISIONS OF: STATE V. BEZAK, 114 OHIO ST.3D 96; AND, STATE V. SIMPKINS, 117 OHIO ST.3D 420.”
I.
{¶9} In his sоle assignment of error, Appellant argues that the trial court erred in denying his motion for re-sеntencing. We agree.
{¶10} Upon review of the record in the case sub judice, we find that while the sentencing judgment entry did include the imposition of post-release control for the mandatory term of five years, the trial court failed to notify Appellant as to same at the sеntencing hearing.
{¶11}
{¶12} A sentence which fails to notify the offender that he or she is subject to post release control is wholly unauthorized and void. State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E. 2d 961. “Becаuse a sentence that does not conform to statutory mandates requiring the imposition of post release control is a nullity and void, it must be vacated. The effect of vacating the sentence places the parties in the same position as they were had thеre been no sentence” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568 (decided March 20, 2008), Bezak, supra at paragraph 13 citing Romito v. Maxwell (1967), 10 Ohio St. 2d 266, 267, 227 N.E.2d 223.
{¶13} “A trial court retains jurisdiction to cоrrect a void sentence and is authorized to do so when its error is apparent.” State v. Simpkins supra, citing State v. Cruzado, 111 Ohio St. 3d 353, 2006-Ohio-5795, 856 N.E.2d 263 at paragraph 19; State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864 at paragraph 23. Res Judicata does not act to bar a trial court from correcting the error. State v. Simpkins, supra, citing State v. Ramey, Franklin App. No. 06AP-245, 2006-Ohio-6429, at paragraph 12; See also, State v. Barnes, Portage App. No. 2006-P-0089, 2007-Ohio-3362 at paragraphs 49-51; State v. Rodriguez (1989), 65 Ohio App. 3d 151, 154, 583 N.E.2d 347. Furthermore, re-sentencing a defendant to add a mandatory period of pоst release control that was not originally included in the sentence does not violate due process. State v. Simpkins, supra at paragraph 20 of syllabus.
{¶15} For the foregoing reasons, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby revеrsed and remanded for further proceedings consistent with the law and this opinion.
By: Wise, J.
Farmer, P. J., and
Gwin, J., concur.
/S/ JOHN W. WISE___________________
/S/ SHEILA G. FARMER_______________
/S/ W. SCOTT GWIN__________________
JUDGES
JWW/d 217
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio, is reversed and remanded for further proceedings consistent with this opinion.
Costs assessed to Appellee.
/S/ JOHN W. WISE___________________
/S/ SHEILA G. FARMER_______________
/S/ W. SCOTT GWIN__________________
JUDGES