State v. Bryant , 2015 Ohio 3678 ( 2015 )

[Cite as State v. Bryant, 2015-Ohio-3678.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102650
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARVIN BRYANT
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-04-455771-A
BEFORE: Blackmon, J., E.T. Gallagher, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: September 10, 2015
FOR APPELLANT
Marvin Bryant, Pro Se
A-480-285
Lorain Correctional Institute
2075 South Avon-Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Eric L. Foster
Mary McGrath
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} In this accelerated appeal, appellant Marvin Bryant (“Bryant”) appeals the
trial court’s denial of his motion to terminate postrelease control and assigns the
following error for our review:
Appellant’s rights were violated when the trial judge refused to terminate
the void sentence and postrelease control supervision in violation of Ohio
Supreme Court mandates, Due Process and Equal Protection Clauses of the
Fourteenth Amendments of the U.S. Constitutions and State v. Jordan, R.C.
2929.19, State v. Simpkins, and State v. Bezak.
{¶2} Having reviewed the record and pertinent law, we conclude that the trial
court erred by denying Bryant’s motion to terminate his postrelease control. The
apposite facts follow.
{¶3} On December 23, 2004, Bryant was sentenced to a total of nine years in
prison after being convicted by a jury for aggravated robbery, felonious assault, and
having a weapon while under disability. The trial court also imposed postrelease control
for five years.
{¶4} Bryant appealed; this court affirmed his convictions. See State v. Bryant,
8th Dist. Cuyahoga No. 85836, 2006-Ohio-4105. Bryant appealed the decision to the
Ohio Supreme Court, which reversed and remanded the matter for resentencing pursuant
to State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470.
{¶5} The trial court conducted a resentencing hearing on August 30, 2006. The
trial court again imposed a sentence of nine years in prison. The court then imposed
postrelease control in its sentencing entry as follows:
Postrelease control is part of this prison sentence for 5 years for the above
felony(s) under R.C. 2967.28.
Mandatory 5 years postrelease control for Count 1; and up to 3 years
postrelease control for Counts, 2, 3, and 4.
Journal Entry, August 30, 2006.
{¶6} On December 30, 2014, Bryant filed a “Motion to Correct Void
Sentence/Terminate Postrelease Control.” Bryant argued that the trial court failed to
state the consequences of violating postrelease control in the sentencing
entry. He contended that because he completed serving his prison term, his sentence was
void because the trial court was unable to resentence him. The trial court denied his
motion, stating that the “journal entry includes the advisement of postrelease control.”
{¶7} On January 15, 2015, Bryant filed another motion, captioned, “Motion to
Correct Void Sentence/Terminate Postrelease control.” Bryant again requested that the
trial court terminate his postrelease control due to the court’s failure to include in the
journal entry the consequences for violating postrelease control. The trial court again
denied the motion.
Postrelease Control
{¶8} In his sole assigned error, Bryant argues that the trial court erred by not
terminating his postrelease control. Specifically, Bryant argues that his postrelease
control is void because the trial court failed to advise in the sentencing entry the
consequences for violating postrelease control. He contends that because he has
completed his sentence, the trial court can no longer resentence him to rectify the error.
We agree.
{¶9} This court in State v. Martin, 8th Dist. Cuyahoga No. 102336,
2015-Ohio-2865; State v Love, 8th Dist. Cuyahoga No. 102058, 2015-Ohio-1461, and
State v. Burroughs, 8th Dist. Cuyahoga No. 101123, 2014-Ohio-4688, addressed this
exact issue. We held that in situations where the trial court failed to set forth the
consequences for violating postrelease control in the sentencing entry and the defendant
completed his sentence, that the postrelease control is void and should be terminated.
We specifically held that merely referring to the statute in the sentencing entry was
insufficient to advise the defendant of the consequences.
{¶10} In so holding, we recognized, as the state argues, that other districts have
held otherwise. In State v. Darks, 10th Dist. Franklin No. 12AP-578, 2013-Ohio-176;
State v. Ball, 5th Dist. Licking No. 13-CA-17, 2013-Ohio-3443, State v. Murray, 6th Dist.
Lucas No. L-10-1059, 2012-Ohio-4996, the courts held that mere reference to the statute
in the sentencing entry satisfied the notification requirements for imposing postrelease
control. This court has declined to adopt the law of our sister districts.
{¶11} Here, the sentencing entry does not set forth the consequences for violating
postrelease control and Bryant has completed his sentence. Pursuant to the precedent set
forth in Martin, Love, and Burroughs, the trial court erred by not terminating Bryant’s
postrelease control.1
1
To the extent that Bryant’s assigned error can be read to argue that his
{¶12} The state contends we should presume regularity because Bryant failed to
present a transcript of the hearing. However, regardless if the trial court advised Bryant
of the consequences at the sentencing hearing, the consequences still must be set forth in
the journal entry. Martin; Love; Burroughs; State v. Lawson, 8th Dist. Cuyahoga No.
100626, 2014-Ohio-3498; State v. Pyne, 8th Dist. Cuyahoga No. 100580,
2014-Ohio-3037; State v. Elliott, 8th Dist. Cuyahoga No. 100404, 2014-Ohio-2062; State
v. Mills, 8th Dist. Cuyahoga No. 100417, 2014-Ohio-2188; State v. Middleton, 8th Dist.
Cuyahoga No. 99979, 2013-Ohio-5591; State v. Viccaro, 8th Dist. Cuyahoga No. 99816,
2013-Ohio-3437. Accordingly, Bryant’s sole assigned error is sustained.
{¶13} The judgment of the trial court is reversed, and the matter remanded to the
trial court with instructions to release Bryant from further postrelease control supervision.
It is ordered that appellant recover of appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
entire conviction is void, the Ohio Supreme Court in State v. Fischer, 128 Ohio St. 3d
92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 6 held that “when a judge fails to impose
statutorily mandated postrelease control as part of a defendant’s sentence, that part
of the sentence is void and must be set aside.” (Emphasis sic.) Thus, only Bryant’s
postrelease control is void, not his entire conviction.
EILEEN T. GALLAGHER, P.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN
JUDGMENT ONLY