[Cite as State v. Richard-Bey, 2011-Ohio-3676.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. CT2010-0051
B.J. ELDER RICHARD-BEY :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2004-
0119A
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: July 19, 2011
APPEARANCES:
For Appellant: For Appellee:
ROBERT D. ESSEX D. MICHAEL HADDOX
1654 East Broad St. MUSKINGUM COUNTY PROSECUTOR
Suite 302
Columbus, OH 43203 ROBERT L. SMITH
27 N. 5th St.
Zanesville, OH 43701
[Cite as State v. Richard-Bey, 2011-Ohio-3676.]
Delaney, J.
{¶1} Defendant-Appellant B.J. Elder Richard-Bey appeals the September 7,
2010 resentencing judgment entry of the Muskingum County Court of Common Pleas.
Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE CASE1
{¶2} On May 13, 2004, Appellant was indicted by the Muskingum County
Grand Jury upon one count of Aggravated Robbery with a firearm specification, in
violation of R.C. 2911.01(A)(1), a felony of the first degree; one count of Theft, in
violation of R.C. 2913.02(A)(4), a misdemeanor of the first degree; one count of
Robbery, in violation of R.C. 2911.02(A)(1), a felony of the second degree; one count of
Theft, in violation of R.C. 2913.02(A)(1), a felony of the fifth degree; and one count of
Having a Weapon While Under Disability, in violation of R.C. 2923.13(A)(2), a felony of
the fifth degree.
{¶3} Appellant appeared before the Muskingum County Court of Common
Pleas on July 16, 2004 and withdrew his former pleas of not guilty and entered pleas of
guilty to all counts in the indictment. In exchange for Appellant’s plea, the State agreed
to recommend that Appellant receive an aggregate prison term of eight years. The plea
form signed by Appellant indicated that Appellant would be subject to mandatory
postrelease control of five years. The trial court ordered a pre-sentence investigation
before sentencing.
1
A statement of the facts is unnecessary for the disposition of this appeal.
Muskingum County, Case No. CT2010-0051 3
{¶4} On August 16, 2004, the trial court sentenced Appellant. The trial court
sentenced Appellant to an aggregate prison term of eight years. During the sentencing
hearing, the trial court informed Appellant that he would be placed on a mandatory
period of postrelease control for five years. The trial court’s sentencing entry, however,
stated that the postrelease control was mandatory in the case up to a maximum of five
years.
{¶5} On August 6, 2010, Appellant filed a Motion for De Novo Sentencing.
{¶6} Appellant came before the trial court for resentencing. Appellant asserted
that he should be permitted to withdraw his plea and proceed to trial. The trial court
limited the scope of the hearing to re-sentencing for postrelease control purposes. On
September 7, 2010, the trial court issued a sentencing entry where the trial court stated
that it notified Appellant that postrelease control in this case is mandatory for five years.
{¶7} It is from this decision Appellant now appeals.
{¶8} Appellant raises one Assignment of Error:
{¶9} “I. THE TRIAL COURT ERRED IN RE-IMPOSING A PERIOD OF POST
RELEASE CONTROL AND FAILED TO CONDUCT A PROPER RE-SENTENCING
HEARING. THIS REVIEW IS REQUESTED PURSUANT TO ANDERS V.
CALIFORNIA (1967), 367 U.S. 738.
{¶10} Appellant argues the trial court erred in failing to conduct a de novo
sentencing hearing. We disagree.
{¶11} This Court recently examined a similar issue regarding a defendant’s
motion to withdraw a guilty plea prior to a resentencing on postrelease control in State
v. Bennett, Stark App. 2010CA00200, 2010-Ohio-2236. In affirming the trial court’s
Muskingum County, Case No. CT2010-0051 4
denial of the defendant’s motion to withdraw his guilty plea, we relied upon the recent
Ohio Supreme Court case of State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, 942
N.E.2d 332. We stated:
{¶12} “In Fischer, the Court stated:
{¶13} “’We similarly hold that 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 must be set aside. (Footnote omitted.) Neither the Constitution nor common sense
commands anything more.’
{¶14} “’This principle is an important part of the analysis of void sentences that
we have not focused upon in prior cases involving postrelease control, including Bezak,
114 Ohio St.3d 94, 2007–Ohio–3250, 868 N.E.2d 961. Thus, we reaffirm the portion of
the syllabus in Bezak that states ‘[w]hen a defendant is convicted of or pleads guilty to
one or more offenses and postrelease control is not properly included in a sentence for
a particular offense, the sentence for that offense is void,’ but with the added proviso
that only the offending portion of the sentence is subject to review and correction.’
{¶15} “’However, we now modify the second sentence in the Bezak syllabus as
ill-considered. That sentence states that the offender is entitled to a new sentencing
hearing for the offense for which postrelease control was not imposed properly. 114
Ohio St.3d 94, 2007–Ohio–3250, 868 N.E.2d 961. It does not recognize a principle that
we overlooked in Bezak: when an appellate court concludes that a sentence imposed
by a trial court is in part void, only the portion that is void may be vacated or otherwise
amended.’
Muskingum County, Case No. CT2010-0051 5
{¶16} “’Therefore, we hold that the new sentencing hearing to which an offender
is entitled under Bezak is limited to proper imposition of postrelease control. In so
holding, we come more into line with legislative provisions concerning appellate review
of criminal sentences.’
{¶17} “Accordingly, we find Appellant's convictions and the remainder of
Appellant's original sentence remained valid, and Appellant's motion to withdraw plea is
properly addressed as a post-sentence motion.
{¶18} “Ohio Criminal Rule 32.1 governs motions to withdraw pleas, and reads:
{¶19} “’A motion to withdraw a plea of guilty or no contest may be made only
before sentence is imposed; but to correct manifest injustice the court after sentence
may set aside the judgment of conviction and permit the defendant to withdraw his or
her plea.’
{¶20} “Appellant has not demonstrated, nor does the record reflect, a manifest
injustice resulted from the trial court's denial of Appellant's motion to withdraw his guilty
plea. Accordingly, Appellant's sole assignment of error is overruled.”
{¶21} Based upon Fischer, supra and Bennett, supra we hereby overrule
Appellant’s sole assignment of error. Fischer established that the trial court is not
required to conduct a de novo sentencing hearing, but only a hearing limited to the
proper imposition of postrelease control. Further, as in the Bennett case, the record in
the present case does not show that a manifest injustice resulted from the trial court’s
implicit denial of Appellant’s oral motion to withdraw his guilty plea.
Muskingum County, Case No. CT2010-0051 6
{¶22} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By: Delaney, J.
Gwin, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
[Cite as State v. Richard-Bey, 2011-Ohio-3676.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
B.J. ELDER RICHARD-BEY :
:
: Case No. CT2010-0051
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Muskingum County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE