2007 Ohio 488 | Ohio Ct. App. | 2007
{¶ 2} A jury trial commenced on June 30, 2003. The jury found appellant guilty of felonious assault and domestic violence, and not guilty of rape and kidnapping. By judgment entry filed July 1, 2003, the trial court sentenced appellant to an aggregate term of five years in prison. Appellant filed an appeal and this court affirmed appellant's conviction and sentence. See, State v. Vogt, Stark App. No. 2003CA00292,
{¶ 3} On May 19, 2006, the trial court conducted a resentencing hearing pursuant to Hernandez v. Kelly,
{¶ 4} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
{¶ 5} "THE TRIAL COURT ERRED BY CONDUCTING AN AFTER-THE-FACT RESENTENCING HEARING."
{¶ 9} In State v. Rich (2007), Stark App. No. 2006CA00171, Assignment of Error I, this court recently reviewed the same issues herein and found they lacked merit. We concur with the analysis of this learned opinion and deny appellant's assignments of error.
{¶ 10} Although not assigned as error, we note the trial court, in including the requisite post-release control language, stated, "post release control is mandatory in this case up to a maximum of five (5) years," and ordered appellant to serve "any term of post release control imposed by the Parole Board." This language mirrored the language inRich. In Rich, the appellant was convicted of a felony in the second degree, the same as appellant sub judice. The appropriate term of post-release control for a second degree felony is a mandatory three year term. See, R.C.
{¶ 11} "We recognize the aforecited statutes do not require a trial court to notify the offender of the specific term of his or her post-release control sanction, and that the specific term is established by operation of law. However, the determination of guilt in a criminal matter and the sentencing of a defendant convicted of a crime are solely the province of the judiciary." Rich at ¶ 21.
{¶ 12} We concur with the well-reasoned analysis in the second assignment of error in Rich and hereby vacate the post-release control section of the sentence and remand the matter to the trial court "to include imposition of the correct specific PRC period pursuant to R.C. 2967.28(B)(2)." Rich at ¶ 21.
{¶ 13} The post-release control section of the sentence is hereby vacated and the matter is remanded to the Court of Common Pleas of Stark County, Ohio for re-imposition of the post-release control obligations consistent with this opinion.
Farmer, J., Gwin, P.J., and Wise, J. concur.