[Cite as State v. Chancellor, 2011-Ohio-4162.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24358
v. : T.C. NO. 00CR227
JERRY CHANCELLOR : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 19th day of August , 2011.
..........
CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LYNNE M. FLEMING, Atty. Reg. No. 0078520, 15 West Fourth Street, Suite 100, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
JERRY CHANCELLOR, #391545, Warren Correctional Institute, P. O. Box 120, Lebanon,
Ohio 45036
Defendant-Appellant
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FROELICH, J.
{¶ 1} On March 2, 2000, the defendant, represented by counsel, entered pleas of
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guilty to two counts of aggravated robbery (one with a three-year firearm specification).
The judgment entry sentenced the defendant to eight years in prison on each of the two
counts, to be served concurrently with each other, and an additional three years of actual
incarceration on the firearm specification to be served consecutively to and prior to the
definite term of imprisonment. Further, the entry provided that “following the defendant’s
release from prison, the defendant will/may serve a period of post-release control under the
supervision of the parole board.” There was no appeal of this conviction and sentence.
{¶ 2} On October 6, 2010, the court, sua sponte, ordered that the appellant be
brought before the court for resentencing. On October 21, the court resentenced the
defendant, who was still in prison, to the same sentence of incarceration. However, in court
and in the termination entry, the court notified the defendant that, as part of the sentence, he
“will be supervised by the parole board for a period of five years post release control after
[his] . . . release of imprisonment.” The defendant filed a timely notice of appeal.
{¶ 3} Counsel for Chancellor has filed a brief pursuant to Anders v. California
(1967), 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493, stating that after a conscientious
examination of the record, the appeal is frivolous. Counsel has, however, filed a thorough
brief referring to an issue in the record that she believes might arguably support the appeal.
{¶ 4} Chancellor was advised of his counsel’s brief and that he could file a pro se
brief assigning any errors for review by this court and that, absent such a filing, the appeal
will be deemed submitted on the merits. No pro se brief has been received. We have
conducted an independent review of the record. Penson v. Ohio (1988), 488 U.S. 75, 109
S.Ct. 346, 102 L.Ed.2d 300.
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{¶ 5} Chancellor’s appellate counsel has identified one possible Anders argument
for appeal:
{¶ 6} “The trial court may have erred in failing to resentence Mr. Chancellor de
novo.”
{¶ 7} The defendant was sentenced for two first degree felonies. Therefore, there
was a statutory requirement that his sentence include a mandatory period of five years
post-release control. The original judgment entry, inasmuch as it did not give a term of the
post-release control and did not indicate it would be mandatory, was defective.
{¶ 8} “[W]hen a judge fails to impose statutorily mandated postrelease control as
part of a defendant’s sentence, that part of the sentence that is void must be set aside.
Neither the Constitution nor common sense commands anything more.” State v. Fischer,
128 Ohio St.3d 92, 2010-Ohio-6238, ¶26. (emphasis in original) Therefore, since the
2000 judgment failed to impose statutorily mandated post-release control, that part of the
sentence was void. The 2010 judgment corrected that void part of the sentence and
imposed the statutorily mandated five years of post-release control.
{¶ 9} Appellant contends that since he was resentenced in October and Fischer did
not come out until December, that it does not control his situation. We do not agree for two
reasons.
{¶ 10} First, even if he were entitled to a de novo sentencing (which he was not), it
appears that this occurred. There was a discussion on the record among the judge, counsel,
and the defendant, and both the appellant and his counsel were asked if they had anything to
say. In response to the question, “Do you have any questions or concerns about what it is
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we’re going to do with regard to the resentencing or its impact on you, sir?”, the defendant
responded in the negative.
{¶ 11} Second, pursuant to Fischer, the only part of his sentence that was void was
post-release control. And since Appellant was still in prison on the original sentence, there
is no problem with R.C. 2929.191. Therefore, the only resentencing was for post-release
control. See, e.g., State v. Jenkins, Montgomery App. No. 24117, 2011-Ohio-634, ¶7.
{¶ 12} The fact that Appellant was resentenced prior to the Fischer’s decision is
irrelevant. Fischer explained the effect of a previously imposed defective post-release
control sanction and how a court can correct the error. By definition, Fischer dealt with
sentences that were imposed prior to its pronouncement date.
{¶ 13} Having conducted an independent review of the record, in addition to the
brief filed by appellant’s counsel, we find this appeal to be wholly frivolous. There are no
meritorious issues for appeal. Therefore, the judgment of the trial court is affirmed.
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GRADY, P.J. and DONOVAN, J., concur.
Copies mailed to:
Carley J. Ingram
Lynne M. Fleming
Jerry Chancellor
Hon. Mary L. Wiseman