State v. Stallings , 2012 Ohio 2925 ( 2012 )


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  • [Cite as State v. Stallings, 
    2012-Ohio-2925
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 97480
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    WILLIS STALLINGS
    DEFENDANT-APPELLANT
    JUDGMENT:
    REVERSED AND REMANDED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-444002
    BEFORE:           Blackmon, A.J., Cooney, J., and Kilbane, J.
    RELEASED AND JOURNALIZED:                    June 28, 2012
    -i-
    ATTORNEYS FOR APPELLANT
    Robert L. Tobik, Esq.
    Chief Public Defender
    By: John T. Martin
    Assistant Public Defender
    310 Lakeside Avenue, Suite 200
    Cleveland, Ohio 44113
    ATTORNEYS FOR APPELLEE
    William D. Mason
    Cuyahoga County Prosecutor
    By: Daniel T. Van
    Assistant Prosecuting Attorney
    The Justice Center, 8th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    PATRICIA ANN BLACKMON, A.J.:
    {¶1} Appellant Willis Stallings appeals the trial court’s denial of his motion to
    terminate postrelease control and assigns the following error for our review:
    I. Because the original sentence did not impose post-release control,
    and has never been corrected, the trial court was required to discharge
    the defendant from post-release control supervision after he completed
    the service of his prison term and had been released.
    {¶2} Having reviewed the record and pertinent law, we reverse the trial court’s
    decision, vacate Stallings’s postrelease control, and remand for the trial court to note on
    its record that Stallings cannot be resentenced, thus is not subject to postrelease control.
    The apposite facts follow.
    {¶3} On July 26, 2004, Stallings pleaded guilty to one count of receiving stolen
    property, breaking and entering, and two counts of vandalism. In addition, Stallings
    pleaded guilty to a single count of felonious assault of a peace officer. The trial court
    then imposed an agreed prison sentence of eight years.
    {¶4} On July 6, 2009, Stallings filed a motion for a de novo resentencing.
    Stallings argued that the trial court had failed to advise him of the consequences for
    violating postrelease control. The state filed a concurring brief, but argued that the trial
    court should resentence Stallings to merely add postrelease control to the sentence.
    {¶5} On September 7, 2011, after serving his sentence, Stallings filed a motion to
    terminate postrelease control. On September 29, 2011, the trial court denied the motion.
    Motion to Terminate Postrelease Control
    {¶6}    In the sole assigned error, Stallings argues the trial court erred when it
    denied his motion to terminate postrelease control.
    {¶7} Postrelease control is a “period of supervision by the adult parole authority
    after a prisoner's release from imprisonment[.]” Woods v. Telb, 
    89 Ohio St.3d 504
    , 509,
    
    2000-Ohio-171
    , 
    733 N.E.2d 1103
    , quoting R.C. 2967.01(N). The trial court must inform
    a defendant at his sentencing hearing that postrelease control is a part of his sentence. Id.
    at 513.
    {¶8} R.C. 2929.19(B)(3)(e) provides that the court at sentencing must notify the
    offender that if a period of supervision is imposed upon his release and if the offender
    violates that supervision, the parole board may impose a prison term of up to one-half of
    the stated prison term originally imposed on the offender. This notice must be repeated in
    the sentencing entry. State v. Singleton, 
    124 Ohio St.3d 173
    , 
    2009-Ohio-6434
    , 
    920 N.E.2d 958
    , ¶ 11, 22. And, a mere reference to a statute is insufficient notice. See, e.g., State v.
    Jones, 7th Dist. No. 06 MA 17, 
    2009-Ohio-794
    , ¶ 12.
    {¶9} In the instant case, the record reveals that the trial court failed to provide the
    proper notice in the sentencing entry that postrelease control for a specific term would be
    part of his sentence.      In the sentencing journal entry, the trial court stated “postrelease
    control is a part of this prison sentence for the maximum period allowed for the above
    felony under R.C. 2967.28.” The state concedes this error. Thus, the remaining issue is
    the remedy that we can provide.
    {¶10}    It is well settled that once the sentence for the offense that carries
    postrelease control has been served, the court can no longer correct sentencing errors and
    impose postrelease control at resentencing. State v. Peterson, 8th Dist. No. 96958,
    
    2012-Ohio-87
    , citing State v. Bezak, 
    114 Ohio St.3d 94
    , 
    2007-Ohio-3250
    , 
    868 N.E.2d 961
    . Because Stallings has been released from his term of imprisonment, we cannot
    remand for application of the corrected sentencing procedures contained in R.C.
    2929.191. The failure to notify Stallings properly was, in effect, the failure to properly
    impose postrelease control, which cannot now be remedied because he has been released.
    {¶11}     Accordingly, we sustain the sole assigned error and reverse the trial
    court’s decision. Stallings’s postrelease control is vacated, and this case is remanded for
    the trial court to note on its record that Stallings cannot be resentenced and thus is not
    subject to postrelease control.
    {¶12} Judgment is reversed and remanded for proceedings consistent with this
    opinion.
    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 said court 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, ADMINISTRATIVE JUDGE
    COLLEEN CONWAY COONEY, J., and
    MARY EILEEN KILBANE, J., CONCUR