[Cite as State v. Robb, 2011-Ohio-4647.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-100678
C-100679
Plaintiff-Appellee, : TRIAL NOS. B-0210655B
B-0301572B
vs. :
D E C I S I O N.
DANTE LOVELL ROBB, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 16, 2011
Joseph T. Deters, Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting
Attorney, for Plaintiff-Appellee,
Scott A. Rubenstein, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA S. HENDON, Judge.
{¶1} Defendant-appellant Dante Lovell Robb entered pleas of guilty to
conspiracy to commit murder and aggravated robbery with an accompanying
weapon specification in 2003. At that time, the trial court sentenced Robb to an
aggregate term of 15 years’ imprisonment. In September of 2010, Robb was returned
to the trial court for a resentencing hearing because the trial court had failed to orally
notify Robb about his postrelease control requirements. The trial court had included
language concerning postrelease control in its 2003 sentencing entry, but it had not
orally informed Robb about postrelease control at the sentencing hearing.
{¶2} Over the state’s objection, the trial court conducted a de novo
sentencing hearing. The trial court imposed the same sentence that it had imposed
in 2003, along with the required postrelease control notifications. Robb had
additionally filed a motion to withdraw his guilty pleas, which the trial court denied.
{¶3} Robb now appeals, raising two assignments of error for our review. In
his first assignment of error, he argues that the trial court erred in overruling his
motion to withdraw his guilty pleas. Robb asserts that his motion to withdraw his
pleas should be treated as a presentence motion to withdraw because it was filed
before he was properly resentenced. He is incorrect.
{¶4} This court has held that, when a sentence is void only to the extent that
postrelease control had not been properly imposed, any motion to withdraw a guilty
plea filed after the imposition of the original sentence should be treated as a
postsentence motion to withdraw a guilty plea.1 A postsentence motion to withdraw
1 State v. Thomas, 1st Dist. Nos. C-100411 and C-100412, 2011-Ohio-1331, ¶16.
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OHIO FIRST DISTRICT COURT OF APPEALS
a guilty plea should only be granted to correct a manifest injustice.2 We review a trial
court’s ruling on a postsentence motion to withdraw a guilty plea for an abuse of
discretion.3 Here, Robb has failed to demonstrate the presence of a manifest
injustice. The trial court did not abuse its discretion in denying Robb’s motion, and
the first assignment of error is overruled.
{¶5} In his second assignment of error, Robb argues that the trial court
erred in imposing a sentence not supported by the findings in the record. Robb had
been returned to the trial court for resentencing because the trial court had failed to
orally notify him about the requirements of postrelease control. When a trial court
fails to orally notify a defendant about the requirements of postrelease control, “that
part of the sentence * * * is void and must be set aside.”4 Consequently, in such a
situation, the resentencing “is limited to the proper imposition of postrelease
control.”5
{¶6} Here, the trial court erred in conducting a de novo sentencing hearing.
The resentencing should have been limited to the proper imposition of postrelease
control. But because the trial court imposed the same sentence that it had imposed
at the original sentencing hearing, along with the necessary postrelease-control
language, any error is harmless.
{¶7} An appeal following a resentencing hearing to properly impose
postrelease control “is limited to issues arising at the resentencing hearing.”6
Because Robb’s resentencing should have been limited to the imposition of
2 Crim.R. 32.1
3 State v. Hines, 1st Dist. No. C-090754, 2010-Ohio-3964, ¶17.
4 State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶26. See, also, State v.
Brown, 1st Dist. Nos. C-100309 and C-100310, 2011-Ohio-1029, ¶9.
5 Fischer at ¶27.
6 Fischer at paragraph four of the syllabus.
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OHIO FIRST DISTRICT COURT OF APPEALS
postrelease control, in the absence of any other matter that would have voided a
separate portion of the sentence, he may only challenge on appeal issues arising from
that imposition. Here, we find that the trial court properly informed Robb regarding
the requirements of postrelease control, and we overrule the second assignment of
error.
{¶8} The judgment of the trial court is, accordingly, affirmed.
Judgment affirmed.
SUNDERMANN, P.J., and CUNNINGHAM, J, concur.
Please Note:
The court has recorded its own entry on the date of the release of this decision.
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