State v. ThomasState v. Thomas
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in Part as Modified and Cause Remanded in C-100411; Appeal Dismissed in C-100412
Date of Judgment Entry on Appeal: March 23, 2011
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Ako Thomas, pro se.
Please note: This case has been removed from the accelerated calendar.
{¶1} Defendant-appellant Ako Thomas has taken these consolidated appeals from the Hamilton County Common Pleas Court’s judgments overruling his “Motion For Resentencing to Correct a Void Sentence,” his “P[re]sentence Motion to Withdraw Guilty Plea,” and his “Motion for Relief from Judgment Pursuant to
{¶2} Thomas was convicted in 2008 upon his guilty plea to cocaine trafficking, and he was sentenced to four years in prison. He unsuccessfully challenged his conviction in an appeal to this court,1 in an
{¶3} In June 2009, while his direct appeal was pending before this court, Thomas filed with the common pleas court a
Appeal No. C-100412
{¶4} We note preliminarily that, in the appeal numbered C-100412, Thomas appeals from the judgment entered in the case numbered M-080313 overruling his
{¶5} In the appeal numbered C-100411, Thomas appeals from the overruling of his motion for resentencing and his motion to withdraw his plea. On appeal, he advances two assignments of error.
{¶6} Thomas’s cocaine-trafficking sentence is void. We address first Thomas’s second assignment of error, in which he contends that the common pleas court erred in overruling his motion seeking resentencing on the ground that his sentence is void. We agree.
{¶7} Thomas was found guilty of trafficking in cocaine, a first-degree felony. Therefore, the trial court was required, by statute, to notify Thomas at sentencing that, upon his release from prison, he would be subject to a mandatory five-year period of postrelease-control supervision.4 But the court failed to specify the duration of Thomas’s postrelease-control supervision. Therefore, to the extent that Thomas was not adequately notified concerning postrelease control, his sentence is void.5
{¶8} Thomas did not assign this matter as error in his direct appeal from his conviction. He instead presented the challenge in his postconviction motion for resentencing. But when a sentence is void to the extent that it was not imposed in conformity with the statutory mandates concerning postrelease control, and the matter has come to the attention of a court, either on direct appeal or in a collateral challenge, the court “cannot ignore” the matter,6 and “the offending portion of the sentence is subject to review and correction.”7
{¶10} The common pleas court had no jurisdiction to entertain Thomas’s motion to withdraw his guilty plea. In his first assignment of error, Thomas assails the overruling of his
{¶11} In his motion, Thomas insisted that, because his sentence was void for inadequate postrelease-control notification, his motion was reviewable under the “liberal[]” standard applicable to a presentence motion to withdraw a guilty plea.9 And he argued that he was entitled to relief under
{¶12} We note at the outset that the entry overruling Thomas’s
{¶13} In support of his argument that his
{¶14} The supreme court had applied this principle in Bezak to hold, in its syllabus, that when a sentence is void due to inadequate postrelease-control notification, the defendant is entitled to “a new sentencing hearing.”14 But in 2010, in State v. Fischer, the supreme court, in the course of holding that a direct appeal from a resentencing ordered under Bezak constituted a first appeal of right, revisited the law underlying its decision in Bezak.15 The court looked to a second principle, overlooked in Bezak, that “only the portion [of a sentence] that is void may be vacated or otherwise amended.”16 Applying this principle, the court modified the Bezak syllabus by adding the “proviso that only the offending portion of the sentence is subject to review and correction”17 and by holding that “[t]he new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control.”18 And the court held that “[a]lthough the doctrine
{¶15} Thus, the supreme court in Fischer qualified the principle, underlying Bezak and Boswell, that the effect of vacating a void sentence is to place the parties in the same position as if there had been no sentence. The court instead declared that improper postrelease-control notification renders void, and subject to “review and correction,” only the “offending” portion of the sentence. The “lawful” aspects of the sentence that are unrelated to the imposition of postrelease control remain unaffected by the offending portion of the sentence; they are final and appealable when imposed, and the doctrine of res judicata operates to preclude their review in other than a direct appeal.
{¶16} The Fischer court’s qualification of the operative principle in Bezak and Boswell, that a void sentence leaves “no sentence,” led it to limit resentencing under Bezak to the proper imposition of postrelease control. We believe that, had the issue been before it, the FischerBoswell that a
{¶17} And we hold that the common pleas court had no jurisdiction to entertain the motion. Thomas’s direct appeal of his conviction to this court had
{¶18} Conclusion. We dismiss as abandoned the appeal numbered C-100412.
{¶19} In the appeal numbered C-100411, upon our determination that Thomas’s 2008 cocaine-trafficking sentence is void to the extent that it was not imposed in conformity with the statutory mandates concerning postrelease control, we remand this case to the common pleas court for correction of the offending portion of the sentence pursuant to
Judgment accordingly.
DINKELACKER, P.J., HENDON and FISCHER, JJ.
Please Note:
The court has recorded its own entry on the date of the release of this decision.