[Cite as State v. Kuralt, 2011-Ohio-2065.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 23956
Plaintiff-Appellee :
: Trial Court Case No. 2002-CR-1112
v. :
:
DANIEL W. KURALT : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
:
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OPINION
Rendered on the 29th day of April, 2011.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
THOMAS R. SCHIFF, Atty. Reg. #0039881, Hochwalt & Schiff, LLC, 500 Lincoln Park
Boulevard, Suite 216, Kettering, Ohio 45429
Attorney for Defendant-Appellant
.............
PER CURIAM:
{¶ 1} Daniel Kuralt appeals from the judgment of the Montgomery County Common
Pleas Court wherein the court sentenced Kuralt to serve a period of three years post-release
control.
2
{¶ 2} Kuralt was convicted on April 21, 2004 of possession of marijuana and
trafficking in marijuana, both second degree felonies. In sentencing Kuralt, the trial court
incorrectly advised Kuralt that he “may/will serve a period of post-release control under the
supervision of the parole board.” On February 23, 2010, before Kuralt completed his
sentence, Kuralt appeared before the trial court and was advised that he would be required to
serve a period of three years post-release control after his release from prison.
{¶ 3} Kuralt argues in a single assignment of error that the trial court erred in not
holding a full de novo sentencing hearing. After Kuralt filed his appellate brief, the Ohio
Supreme Court issued its opinion in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. In
Fischer, the Supreme Court held that, in cases where a prior sentence omits a
statutorily-mandated term of post-release control, the sentence is only partially void and,
therefore, it is unnecessary to re-sentence the defendant de novo to correct the error. Id. at ¶
17. Likewise, this Court has held that, “[a]s we understand State v. Fischer, the trial court
need only, and may only (because of the doctrine of res judicata), correct the erroneous or
omitted provision for post-release control” and that a de novo sentencing hearing is not
necessary (and may in fact be impermissible). State v. Jenkins, Montgomery App. No. 24117,
2011-Ohio-634, at ¶ 7-8. See also State v. Wells, Cuyahoga App. No. 94956, 2011-Ohio-723,
at ¶ 8-9 (finding pursuant to State v. Fischer that “when postrelease control is not properly
imposed the defendant is only entitled to a hearing for the proper imposition of postrelease
control,” and that the defendant is “not entitled to a de novo sentencing hearing.”).
{¶ 4} The appellant’s assignment of error is Overruled. The judgment of the trial
court is Affirmed.
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FAIN, HALL and BROGAN, JJ., concur.
(Hon. James A. Brogan, retired from the Second District Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Mathias H. Heck
Andrew French
Thomas Schiff
Hon. Frances E. McGee