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IN THE SUPREME COURT OF OHIO
State ex rel. ANTHONY COCKROFT,
Relator,
V.
JUDGE AMY O'GRADY, et al.,
Respondents.
Case No. 2014-1463
MOTION TO DISMISS OF RESPONDENTSJUDGES OF THE TENTH DISTRICT COURT OF APPEALS
MICHAEL. DEWINE (0009181)Ohio Attorney General
ANTHONY COCKROFT#469-497Lorain Correctional Institution2075 S. Avon-Belden RoadGrafton, OH 44044
Relator Pro Se
SARAH E. PIERCE (0087799)* Counsel o f RecordTIFFANY L. CARWILE (0082522)Assistant Attorneys GeneralConstitutional Offices Section30 East Broad Street, 16th FloorColumbus, Ohio 43215Tel: 614-466-2872
Fax: 614-728-7592
s arah.pierce@ohio attorneygeneral. govti ffany. carwile@ohioattorneygeneral. gov
Counsel for RespondentsJudges ofthe Tenth District Court ofAppeals
Original Action in Mandamus/Procedendo
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IN THE SUPREME COURT OF OHIO
State ex rel. ANTHONY COCKROFT,
Relator,
V.
JUDGE AMY O'GRADY, et al.,
Respondents.
Case No. 2014-1463
Original Action in Mandamus/Procedendo
MOTION TO DISMISS OF RESPONDENTSJUDGES OF THE TENTH DISTRICT COURT OF APPEALS
Pursuant to Sup.Ct.Prac.R. 12.04(A)(1) and Civ.R. 12(B)(6), Respondents Judges of the
Tenth District Court of Appeals of Ohio hereby move this Court to dismiss Relator's petition for
a writ of mandamus andlor procedendo. A memorandum in support is attached.
Respectfully submitted,
MICHAEL DEWINE (0009181)Ohio Attorney General p
^ ^,Ij gA,^^ _SARAH PIERCE (0087799)
*Counsel of RecordTIFFANY L. CARWILE (0082522)Assistant Attorneys GeneralConstitutional Offices Section30 East Broad Street, 16th FloorColumbus, Ohio 43215Tel: 614-466-2872Fax: [email protected]. carwile@ohioattorneygeneral. gov
Counsel for RespondentsJttdges ofthe Tenth District Court ofAppeals
1
MEMORANDUM IN SUPPORT OF RESPONDENTS' MOTION TO DISMISS
1. INTRODUCTION
Anthony Cockroft, an inmate, seeks a writ of mandamus/procedendo against the Judges
of the Tenth District Court of Appeals (hereafter "Respondent Judges"). Specifically, Relator
filed this action to compel the Respondent Judges to deter-mine whether the trial court's June 16,
2006 resentencing entry in his underlying criminal case is a final appealable order. As argued
below, Relator's complaint states no claim for which this Court may grant relief Accordingly,
Respondent Judges respectfully request that this Court dismiss Relator's complaint.
II. STATEMENT OF FACTS
On May 10, 2004, Relator was found guilty of aggravated robbery, aggravated murder,
and tampering with evidence and was subsequently sentenced. Relator's Compl. at 2; see also
Respondents' Ex. 1.1 On Relator's direct appeal from his conviction, the Tenth District Court of
Appeals ("Tenth District") affir-aned the trial court's decision. Respondents' Ex. 1, ¶ 4.
Pursuant to State v. Foster, Relator was resentenced on June 1, 2006, and a journal entry was
filed on June 16, 2006. Id., ¶¶ 4-5.
Following his resentencing, on July 19, 2006, Relator again appealed, and the Tenth
District once again affirmed the trial court's decision. Compl. at 4. The issue of the post-release
control portion of Relator's sentence was not presented to the Tenth District in that appeal.
Respondents' Ex. 1, ¶ 6.
Documents attached to or incorporated into the complaint may be considered on a motion todismiss pursuant to Civ.R. 12(B)(6) without converting the motion into one for summaryjudgment. State ex Yel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 249, 673N.E.2d 1281 (1997). Here, Relator makes direct reference to his various appeals and attaches theTenth District's April 17, 2014 decision to his petition. Because the attached copy is incomplete,Respondent Judges attach a complete copy of the April 17, 2014 decision at Respondents'Exhibit 1, for the Court's convenience.
2
On March 4, 2013, Relator filed a motion for resentencing with the trial court, arguing
that the trial court failed to impose a mandatory term of post-release control during the 2006
resentencing hearing. Compl. at 4. The trial court denied Relator's motion. Id.
Relator appealed the trial court's denial of his motion to the Tenth District, arguing that
his sentence did not appropriately reflect that a mandatory tenn of post-release control had been
imposed. Id. at 2. In his reply brief, however, Relator also claimed that his June 16, 2006
sentencing entry was not a final appealable order and that he was therefore entitled to a de novo
resentencing. Id.
The Respondent Judges issued a decision on April 17, 2014, reversing Relator's sentence
and remanding his case for a limited resentencing on the terms of his post-release control.
Respondents' Ex. 1, ¶ 23. Since an appellate court only rules on assignments of error, Relator's
clairn regarding the appealability of his sentencing entry, was not considered by the Tenth
District. Id., ¶¶ 10-11.
On. August 21, 2014, Relator filed the present action seeking a writ of mandamus to
compel the Respondent Judges to determine whether the trial court's June 16, 2006 resentencing
entry is a final appealable order.
111. ARGUMENT
A. Standard of Review
A motion to dismiss for failure to state a claim upon which a court can grant relief
challenges the sufficiency of the complaint itself, not evidence outside of the complaint.
Volbers-Klarich v. Middletown Mgmt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d
434, ¶ 11. When considering the factual allegations of the complaint, a court must accept
incorporated items as true and the plaintiff must be afforded all reasonable inferences possibly
derived therefrom. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753
3
(1988). Finally, a court must find that the plaintifFs complaint does not provide relief on any
possible theory. Civ. R. 12(B)(6); State Auto. Mut. Ins. Co. v. Titanium Metals Corp., 108 Ohio
St.3d 540, 2006-Ohio-1713, 844 N.E.2d 1999, ¶ 8.
B. Relator's Request for a Writ of Mandamus Must Fail Because He CannotSatisfy All of the Requirements for a Writ to Issue.
A writ of mandamus will only issue when three requirements are met: (1) the relator
must have a clear legal right to the requested relief; (2) the respondent must have a clear legal
duty to perform the requested relief; and (3) the relator must have no adequate remedy at law.
State ex rel. Van Gundy v. Indus. Comm., 111 Ohio St.3d 395, 2006-Ohio-5854, 856 N.E.2d 951,
¶ 13, citing State ex rel. Luna v. Huffman, 74 Ohio St.3d 486, 487, 659 N.E.2d 1279 (1996).
Because Relator camiot meet any of these requirements, his mandamus action nlust fail.
Relator has no legal right to the relief he requests, and Respondent Judges do not have a
legal duty to perform it. The appealability of Relator's June 16, 2006 sentencing order was not
at issue in his most recent appeal before the Respondent Judges. Respondents' Ex. 1, ¶ 11.
Relator included his appealability argument in his reply brief, but not as an assignment of error
in his initial appellate brief. The Respondent Judges rule "on assignments of error only, and will
not address mere arguments." Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-Ohio-553, ¶ 70,
citing In re Estate of Taris, 10th Dist. No. 04AP-1264, 2005-Ohio-1516; see also App.R.
12(A)(1)(b). Therefore, Respondent Judges did not have a legal duty to consider the arguments
Relator made in his reply brief.
Further, a writ of mandamus will not issue to control judicial discretion. State ex rel.
Avety v. Union County Court of Common Pleas, 125 Ohio St.3d 35, 201.0-Ohio-1427, 925
N.E.2d 969, ¶ 1, quoting State ex rel. Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789,
874 N.E.2d 510, ¶ 12, ("Mandamus will not lie to control judicial discretion, even if that
4
discretion is abused."); R.C. 2731.03. Here, Respondent Judges appropriately exercised their
discretion to rule on Relator's assignment of error regarding his resentencing, and not on
Relator's argun-ient coneerning the appealability of his 2006 sentencing entry. For these reasons,
Relator does not have a clear legal right to the relief he seeks, and Respondent Judges do not
have a clear legal duty to grant it.
Finally, relief in mandamus is precluded by the availability of an appeal. State ex rel.
Ervin v. Barker, 136 Ohio St.3d 160, 2013-Ohio-3171, 991 N.E.2d 1146, ¶ 10. Here, Relator
had the ability to appeal the Tenth District's April 17, 2014 decision to the Ohio Supreme Court.
Because Relator had an adequate remedy at law by way of appeal, his request for a writ should
be dismissed.
C. Relator's Request for a Writ of Procedendo Must Fail Because He CannotSatisfy All of the Requirements for a Writ to Issue.
Relator also seeks a writ of procedendo against Respondent Judges. For a writ of
procedendo to issue, three requirements must be met: (1) the relator must have a clear legal right
to the requested relief; (2) the respondent must have a clear legal duty to perform the requested
relief; and (3) the relator must have no adequate remedy of law. State ex rel. Sawicki v. Court of
Common Pleas of Lucas Cty., 126 Ohio St.3d 198, 2010-Ohio-3299, 931 N.E.2d 1082, ¶ 11. A
writ of procedendo is appropriate "when a court has either refused to render a judgment or has
unnecessarily delayed proceeding to judginent." State ex rel. Bd. of State Teachers Ret. Sys. of
Ohio v. Davis, 113 Ohio St.3d 410, 2007-Ohio-2205, 865 N.E.2d 1289, ¶ 34. Relator requests a
writ of procedendo but entirely fails to support his claim. Relator does not allege that
Respondent Judges have either refused or unnecessarily delayed rendering a pending judgment.
No further issues remain unresolved before Respondent Judges in Relator's most recent appeal.
Therefore, Relator's action for a writ of procedendo must fail.
5
IV. CONCLUSION
For the foregoing reasons, Respondents Judges respectfully request this Court dismiss
Relator's complaint.
Respectfully submitted,
1VIICHAEL DEWINE (0009181)Ohio Attorney General
SARAH PIERCE (0087799)*Counsel of Record
TIFFANY L. CARWILE (0082522)Assistant Attorneys GeneralConstitutional Offices Section30 East Broad Street, 16th FloorColumbus, Ohio 43215Tel: 614-466-2872Fax: [email protected]. carwile@ohioattorneygeneral. gov
Counsel for RespondentsJudges of the Tenth District Court ofAppeals
6
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing was served by regular U.S. mail on
September 16, 2014, upon the following:
ANTHONY COCKROF'I'#469-497Lorain Correctional Institution2075 S. Avon-Belden RoadGrafton, OH 44044
Relator Pro Se
SARAH PIERCE (0087799)Assistant Attorney General
7
0A103 - E38
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio,
Plaintiff-Appellee,
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V.
Anthony Cockroft,
Defendant-Appellant.
D E C I S I O N
No. 13AP-532(C.P.C. No. 03CR-6715)
(REGULAR CALENDAR)
Rendered on April 17, 2014
Ron O'Brien, Prosecuting Attorney, and .Kirnberiy M. Bond,for appellee.
Anthony Cockroft, pro se.
APPEAI, from the Franklin County Court of Common Pleas
O`GRADY, J.
{¶ 1} Defendant-appellant, Anthony Cockroft, appeals from a judgment of the
Franklin County Court of Common Pleas denying his March 4, 2013 motion for
resentencing. Because postrelease control was not properly imposed, we reverse and
remand this matter for resentencing in accordance with the law and this decision.
I. BACKGROUh1D
{¶ 2} In 2003, appellant was indicted for aggravated robbery, in violation of R.C.
2911.01, aggravated murder with specifications, in violation of R.C. 2903.o1, attempted
murder, in violation of R.C. 2903.02, and tampering with evidence, in violation of R.C.
2921.12. A jury found appellant guilty as charged in the indictment.
Respondents Exhibit 1
OA103 - E39
No. 13AP-532 2
{^ 3} The trial judge orally pronounced appellant's sentence on May 13, 2004.
Pertinent to this appeal are the following comments regarding postrelease control:
I do have to advise you with respect to at least when you arereleased from the institution, you will have a period of post-release control.
If there is a period of post-release control, which I believethere Nvill be, if you commit any violations while you are onpost-release control, the sentence could be extendedadministratively as part of that sentence. The extensionwould be for a maximum of one-half the prison termdepending on what the post-release control will be at thattime.
If you commit any felony offenses while you are on post-release control, any sentence that court would impose wouldrun consecutive.
(Tr. Vol. IV, 163.) A judgment entry journalizing appellant's sentence was filed on May 19,
2004, stating in pertinent part, "[a]fter the imposition of sentence, the Court notified the
Defendant, orally and in wvriting, of the applicable periods of post-release control
pursuant to R.C. 2929.19(B)(3)(c), (d) and (e)." (R. 154.) The record does not reflect that
appellant received a "Prison Imposed" notice. That notice advises a defendant of the
imposition of postrelease control. It includes details such as the length of the term,
whether the term is mandatory, and the consequences for violating postrelease control.,
The only other document in the record from 2004 that refers to postrelease control is a
"Disposition Sheet," which is signed by the trial judge and dated May 13, 2004, but is not
signed by appellant or appellant's trial counsel. On that form, a check mark appears next
to the indication: "Defendant notified of Bad Time and Post Release Control In [sic]
writing and orally." (R. 162.) The words "Post Release Control" are circled.
{¶ 4; Appellant filed a direct appeal to this court. He did not raise, nor did this
court consider, any issues regarding the postrelease control portion of appellant's
sentence. We affirmed the trial court's judgment in 2005. State v. Cockroft, ioth Dist.
1 See State v. Williarrrs, ioth.Dist. No. ioAP-1135, 2oii-Ohio-6231, ¶ 4-6, for a description of the "PrisonIniposed" notice used in practice before the Franklin Coutity Court of Comnion Pleas. The notice may besigned by a defendant on the date of sentencing. See id. at ¶ 4-5; State U. Williams, 196 Ohio App.3d 505,2oii-Ohio-4663, ¶ 4(ioth Dist.); State v. Ragland, ioth Dist. No. 13AP-451, 201.4-Ohio-798, ¶ 16.
Respondents Exhibit 1
OA103 - E40
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No. o4AP-6o8, 2005-Ohio-748 ("Cockroft I"). Subsequently, in In re Criminal
Sentencing Statutes Cases,1®g Ohio St.3d 318, 2oo6-Ohi0-2109, ¶ 35, the Supreme Court
of Ohio remanded the case to the trial court for resentencing pursuant to State v.
Foster,log Ohio St.gd 1, 2oo6-Ohio-856.
{¶ 5} On June 1, 2oo6, the trial court held a new sentencing hearing pertaining to
the aggravated robbery, attempted murder, and tampering with evidence charges. The
trial court imposed the same sentences that it originally imposed. The trial judge did not
mention postrelease control during the hearing. A judgment entry iournalizing
appellant's sentence was filed on June 16, 20o6. That entry began by restating the
contents of the May 19, 2004 sentencing entry in its entirety.2 'I°he only language
regarding postrelease control was the above-quoted language from 2004. There is no
other documentation in the record referencing postrelease control.
6} Following the resentencing, appellant again appealed to this court and we
affirmed. State v. Cockroft,loth Dist. No. o6AP-752, 2007-Ohio-2217 ("Cockroftll'). No
issues regarding the postrelease control portion of appellant's sentence were raised or
considered. Id. The Supreme Court refused the discretionary appeal. State v. Cockroft,
115 Ohio St.3d 1412, 2007-Ohio-4884.
{¶ 7} On Vlarch 4, 2o13, appellant filed a motion for resentencing with the trial
court arguing the court failed to impose a mandatory term of postrelease control during
the 2oo6 resentencing. The trial court denied appellant's motion. From that judgment,
appellant filed the instant appeal.
II. ASSIGNMENT OF ERROR
{¶ 8} Appellant presents us with the following assignment of error for our review:
THE TRIAL COURT ERRED WHEN IT DENIEDAPPELLANT'S MOTION FOR RE-SENTENCING: WHERETHEREIN IT WAS SHOWED THAT A MANDATORY TERMOF POST-RELEASE CONTROL HAD NOT BEEN IMPOSED.
III. DISCUSSION
{T 9} Initially, we note appellant is proceeding pro se and "Ohio courts hold pro
se litigants to the same rules and procedures as those litigants who retain counsel."
2 The trial court clianged some of -the language from present to past tense.
Respondents Exhibit 1
OA143 - E41
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Williams v. Lo, loth Dist. No. o7AP-949, 2oo8-OhiO-2804, ¶ 18, citing Whitehall v.
Ruckman, loth Dist. No. o7AP-445, 2oo7-Ohio-678o, ¶ 21. With that in mind, we must
address the inconsistency between appellant's merit brief and his reply brief. In
appellant's merit brief, he argues the trial court failed to properly impose postrelease
control during the 2oo6 resentencing. Thus, he requested the following relief:
Appellant respectfully request [sic] that this Appellate Courtvacate the trial court's denial of Appellant's Motion For Re-sentencing and remand this matter to the trial court for denovo sentencing.
(Appellant's brief, 3.)
1^1 10} In his reply brief, appellant argues that the June 16, 20o6 sentencing entry
is not a final appealable order. He changed his request of this court to the following:
Clearly the trial court's June 16th re-sentencing journal entrydoes not constitute a final appealable order: therefore thisappeal must be dismissed, with an accompanying order to thetrial court ti [sic] issue a final appealable order: Whereappellant is entitled to be present in accordance withCrim.R.43(A).
(Appellant's reply brief, 3.)
{¶ 11} The appealability of the June 16, 2oo6 sentencing entry is not at issue in
this appeal. Furthermore, the arguments in appellant's reply brief are confusing and they
fall outside the parameters of his assignment of error. "[T]his court rules on assignments
of error only, and will not address mere arguments." Ellinger v. Ho,loth Dist. No. o8AP-
1079, 2o1o-Ohio-553, ¶ 70, citing In re Estate of Taris, lotli Dist. No. 04AP-1264, 2005-
Ohio-1516, ¶ 5. Accordingly, the arguments in appellant's reply brief will not be
considered.
{¶ 12} Pursuant to his single assignment of error, appellant argues that the
June 16, 2oo6 judgment entry journalizing his June 1, 2oo6 resentencing is void because
the trial court failed to properly impose a mandatoiy term of postrelease control at
resentencing. Thus, appellant contends the trial court erred in denying his motion for
resentencing. We agree that error occurred.
}¶ 13} We recognize, "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
Respondents Exhibit 1
0A103 - E42
No. 13AP-532 5
must be set aside." (Emphasis sic.) State v. Fischer, 128 Ohio St.3d 92, 2o1o-Ohio-6238,
¶ 26 Furtherrnore, "a void postrelease control sentence is not precluded from appellate
review by principles of res judicata and may be attacked at any time." State v.
Quintanilla,loth Dist. No. 13AP-388, 2013-Ohio-5711, ¶ 10, citing State v. Billiter, 134
Ohio St.3d 103, 2012-Ohio-5144, ¶ lo.
{¶ 14} In this district, we have "applied a 'totality of the circumstances' test to
determine whether or not the defendant was properly notified of post-release control."
State v. Boone, loth Dist. No. 11AP-1054, 2012-O1-iio-3653, ¶ 25, quoting State v.
Williams, loth Dist. No. 1oAP-1135, 2o11-Ohio-6231, ¶ 23; State v. Jordan, loth Dist. No.
13AP-666, 2014-Ohi0-1193, ¶ to. Based on that approach, we have concluded "the trial
court sufficiently fulfilled its statutory obligations when, taken as a whole, its oral and
written notifications, including those at the sentencing hearing, properly informed the
defendant of post-release control." State v. Wilcox,loth Dist. No. 13AP-402, 2013-Ohio-
4347, ¶ 4, citing State v. Clark, 2d Dist. No. 2012 CA 16, 2013-Ohio-299, ¶ 59, citing
Boone at ¶ 18, citing State v. Mays, loth Dist. No. 1oAP-113, 2o1o-Ohio-46o9, and State
v. Townsend,loth Dist. No.1oAP-983, 2011-Ohio-5056; Jordan at ¶ 1o.
{¶ 15} After reviewing our precedent in this area, we find that the circumstances in
this case are substantially similar to the circumstances in State v. Williams, 195 Ohio
App.3d 505, 2o11-Ohio-4653 (lath Dist.), such that our analysis in that case guides our
actions here. In Williams, we concluded that the trial court did not properly impose
postrelease control. As in this case, the original sentencing entry in Williams stated, "
'[a]fter the imposition of sentence, the Court notified the Defendant, orally and in writing,
of the applicable periods of post-release control pursuant to R.C. 2929.19(B)(3)(c), (d)
and (e).' " Id. at ¶ 2. During the sentencing hearing, the trial judge orally advised the
defendant of a mandatory period of postrelease control, but did not tell him the length of
that period or inform him of the potential sanctions for violating postrelease control. Id.
Additionally, the record did not reflect that the defendant received a standard "Prison
Imposed°" notice, which would have advised him of the imposition of postrelease control,
the length of the term, and the consequences for violating postrelease control. See id.; see
also Williams, 2o11-Ohio-6231, at ¶ 4-6 (describing the "Prison Imposed" notice).
Respondents Exhibit 1
OA1o3 - E43
No. 13AP-532 6
{¶ 16} The trial court subsequentlv held a resentencing hearing but did not orally
advise the defendant about postrelease control. WiIliams, 2oiu-Ohio-4653, at ¶ 4, 16.
The judgment entry issued following resentencing stated, " '[t]he Court previously notified
the Defendant, orally and in writing, of the applicable periods of post-release control
pursuant to R.C. 2929.19(B)(3)(c), (d), and (e).' " Id. at ¶ 5. The record did not reflect
that the defendant signed a'"Prison Imposed" notice at the resentencing hearing. Id. at
¶ 4. Following our review of the law and the record, this court concluded that the trial
court in Williams did not properly impose postrelease control at either the original
sentencing or the resentencing. We remanded the case for resentencing limited to
properly imposing postrelease control.
{¶ 17} In the case at bar, the original sentencing entry has the exact same language
pertaining to postrelease control as the original sentencing entry in Williams, 2o11-Ohio-
4653• The content of the judgment entries commemorating both individual's resentencing
is substantially similar. Appellant's entry restates, verbatim, the "applicable periods"
language from the original entry. Williams' entry harkened back to the original
sentencing and quoted the "applicable periods" language from the original entry in part.
Neither appellant nor Williams received an oral notification regarding postrelease control
during resentencing, and neither record contains a'"Prison Imposed" notice.
{¶ 18} The oral notification appellant received during his original sentencing is
different than the notification Williams received. Appellant was advised that he would be
subject to postrelease control following his release from prison. However, at the original
sentencing, the court was unclear about the mandatory nature and term of postrelease
control. Furthermore, at his resentencing, the court made no pronouncement regarding
the mandatory nature of postrelease control and the terms. As this court noted in
YtT%lliam.s, citing the Supreme Court of Ohio's opinion in State v. Bloomer, 122 Ohio St.3d
200, 2oo9-®hio-2462, "when [the] trial court failed to notify the offender of the
mandatory nature of the post-release control term and of the length of that term and to
incorporate such notification into its sentencing entry, 'the court failed to satisfy the most
basic requirement of R.C. 2929.191 and our existing precedent.' " 147illiarns, 2o11-Qhio-
4653, ¶ 15, fn. 2, quoting Bloomer at ¶ 69. 'The Williams couit went on to note the
significance of a "Prison Imposed" notice:
Respondents Exhibit 1
OA1o3 - E44
No.13AP-532
As an alternative to an oral notification made during thecourse of the hearing in which the trial court personallyadvises the offender of postrelease control, this court hassometimes relied upon the use of the "Prison Imposed" noticeto meet the requirement that appellant be notified at thesentencing hearing of the imposition of postrelease control* * {. See State v. a'tlays, loth Dist. No. 1oAP-113, 2010-0hio-46o9; State v. Chandler, loth Dist. No.1oAP-369, 20lo-Ohio-6534, State v. Easley, loth Dist. No. IoAP-5o5, 2o11-Ohio-2412; and State v. Cunningham, loth Dist. No. IoAP-452,2011-Ohio-2045. We have also determined that this samenotice can work in conjunction with the judgment entry toprovide the required notice.
7
Id. at ¶ i6. One of our more recent decisions shows this remains true. Jordan at ¶ 11-13.
}¶ 19} The same cannot be said about the "Disposition Sheet" that appears in the
record in this case. V1Te have identified a disposition sheet in past cases; however, it has
not been relied on in deterxnining whether a defendant was properly notified of
postrelease control to the same extent as the "Prison Imposed" notice. Compare Jordan
and I4Tilliams, 2o11-Ohio-4653, to Mays and State v. Addison, loth Dist. No. 1oAP-554,
2o11-Oh10-2113, ¶ 16-17; see also Boone. Moreover, although the "Disposition Sheet" in
this case indicates, via a check mark and the trial judge's signature, that appellant was
notified of postrelease control in writing and orally, that statement is not supported by the
record as a whole. See Williams, 2o11-Ohio-4653, at ¶ 18. Therefore, we conclude that
the trial court failed to properly impose postrelease control at either appellant's original
sentencing or at resentencing. That part of appellant's sentence is void and must be set
aside.
{¶ 20} The state contends "there is no 'void' sentence problem" in this case because
both the 2004 and 2oo6 sentencing entries notify appellant of the "applicable periods" of
postrelease control. (Appellee's brief, 4.) The state misapplies our precedent with regard
to "applicable periods" language. It is established in this district that "post-release control
may be properly imposed when * ' * 'applicable periods' language in the trial court's
sentencing entry is com.bined with other written or oral notification of the irnposition of
post-release control." (Emphasis added.) State v. Rayland, loth Dist. No. 13AP-451,
2014-Ohio-798, ¶ 17, citing State v. Darks, loth Dist. No. 12AP ,578, 2013-Ohio-176, ¶ 12,
Respondents Exhibit 1
OA103 - E45
No. 13AP-532 8
citing State v. Myers, loth Dist. No. 11AP-9o9, 2012-OhiO-2733, ¶ 11; Townsend at ¶ 7-
14; State v. Holloman, loth Dist. No. 11AP-454, 2o11-01iio-6138, ¶ ii. The other written
and oral notifications in this case are simply deficient.
{¶ 21} As a result, appellant contends that he is entitled to de novo resentencing.
He is mistaken. Both appellant's original sentencing and resentencing occurred before
July 11, 20o6, which was the enactment date of R.C. 2929.191. R.C. 2929.191 "provides
courts with a procedure to correct post-release control errors. x* * In 2009, the Supreme
Court held that R.C. 2929.191 only applies retrospectively to those offenders sentenced
after its July 2oo6 enactment." Wilcox at ¶ 6. Thus, R.C. 2929.191 does not apply to
appellant. In Wilcox, we observed:
In Fischer, the [Supreme Court of Ohio] considered sentenceslacking post-release contrc,l notification that were imposedprior to the effective date of R.C. 2929.191. In so doing, thecourt determined that such sentences were only partially void,and could be corrected to properly impose post-releasecontrol with a limited sentencing hearing. * ## Therefore, asentence lacking post-release control notification does notentitle a criminal defendant to a de novo sentencing hearing;rather, the defendant is entitled to be resentenced only on thepost-release control portion of his or her sentence.
Id. at 17, citing Fischer at ¶ 10, 28-29. Accordingly, appellant is only entitled to be
resentenced regarding the postrelease control portion of his sentence.
{1[ 221 Finally, we note "that an individual sentenced for aggravated murder is not
subject to post-release control because that crime is an unclassified felony to which the
post-release control statute does not apply." Id. at ¶ 1o, citing State v. Clark, 119 Ohio
St.3d 239, 20o8-Ohio-3748, ¶ 36, citing R.C. 2967.28. However, "[w]hen a defendant has
been convicted of both an offense that carries mandatory post-release control and an
unclassified felony to which post-release control is inapplicable, the trial court's duty to
notify of post-release control is not negated." Id., citing State v. Brown, 8th Dist. No.
95086, 2011-0hio-345, ¶ 8, citing State v. Z aylor, 2d Dist. No. 20944, 20o6-0hio-843.
IV. CONCLUSION
{¶ 23} Accordingly, appellant's assignment of error is sustained to the extent
explained above, and the judgment of the Franklin County Court of Common Pleas is
Respondents Exhibit 1
OA103 - E46
No. 13AP-5329
reversed. We remand this case for resentencing limited to properly imposing postrelease
control as part of appellant's sentence consistent with the mandates of the law and this
decision.
Judgment reversedand cause remanded with instructions.
BROWN and DORRIAN, JJ., concur.
Respondents Exhibit 1
