[Cite as State v. Bennett, 2011-Ohio-2236.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2010CA00200
JOHN C. BENNETT, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2009CR0490
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 9, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO, ROBERT G. ABNEY
PROSECUTING ATTORNEY, Abney Law Office, LLC
STARK COUNTY, OHIO 116 Cleveland Ave. N.W., Suite 500
Canton, Ohio 44702
BY: RENEE WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2010CA00200 2
Hoffman, J.
{¶1} Defendant-appellant John C. Bennett, Jr. appeals the denial of his motion
to withdraw his guilty plea in the Stark County Court of Common Pleas. Plaintiff-
appellee is the State of Ohio.
STATEMENT OF THE CASE1
{¶2} On April 21, 2009, Appellant was indicted on charges of aggravated
robbery, aggravated burglary, kidnapping and felonious assault. On June 8, 2009,
Appellant entered a plea of guilty to the charges.
{¶3} The trial court sentenced Appellant to seven years on each count, with
each seven year commitment for counts two, three, and four to be served concurrent
with the seven year commitment on count one. The trial court indicated it would
consider judicial release after a five year period. The trial court’s sentencing entry failed
to properly inform Appellant of the length of post release control. The trial court notified
Appellant post-release control was mandatory for up to a maximum of five years.
{¶4} On April 5, 2010, Appellant moved the trial court to withdraw his guilty
plea. The trial court scheduled a hearing on the motion, and also scheduled a
resentencing hearing.
{¶5} On June 14, 2010, the trial court conducted a hearing to address
Appellant’s motion to withdraw his plea and for resentencing pursuant to R.C. 2929.191.
{¶6} Via Judgment Entry of June 28, 2010, the trial court denied Appellant’s
motion to withdraw his plea. Via separate Judgment Entry of June 28, 2010, the trial
1
A rendition of the statement of facts is unnecessary to our disposition of the within
appeal.
Stark County, Case No. 2010CA00200 3
court resentenced Appellant pursuant to R.C. 2929.191. The trial court notified
Appellant he had been resentenced to serve a mandatory five year term of post-release
control on counts one, two and three and a mandatory three year term of post-release
control on count four pursuant to R.C. 2967.28(B). The terms of post-release control
were ordered to be served concurrently.
{¶7} Appellant now appeals the trial court’s denial of his motion to withdraw his
plea, assigning as error:
{¶8} “I. THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION
TO WITHDRAW HIS FORMER PLEA OF GUILTY.”
{¶9} Appellant asserts he filed his motion to withdraw his plea of guilty prior to
resentencing; therefore, the motion should be freely and liberally granted. State v.
Peterseim (1979), 68 Ohio App.2d 211; State v. Xie (1992), 62 Ohio St.3d 521.
{¶10} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Court held
sentences imposed after July 11, 2006, the effective date of R.C. 2929.191, where the
trial court failed to properly impose post-release control, the court was to follow the
remedial procedures set forth in the statute. Such remedial procedures include a
hearing limited to the imposition of the post-release control and a corrected judgment
entry. Id.
{¶11} In State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, the Court
examined the effect of an improper post-release control notification on a post-sentence
motion to withdraw a guilty plea. The Court concluded because Ketterer was sentenced
after July 11, 2006, his sentence was not void, as the statute set forth the proper
Stark County, Case No. 2010CA00200 4
remedial procedure. The court thus found the motion to withdraw his guilty plea was
properly denied.
{¶12} However, even assuming the court failed to properly impose post-release
control, only that portion of the sentence would be deemed “void.” State v. Fischer, 128
Ohio St.3d 92, 2010–Ohio–6238, ¶ 26. 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.
Stark County, Case No. 2010CA00200 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} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Stark County, Case No. 2010CA00200 6
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JOHN C. BENNETT, JR. :
:
Defendant-Appellant : Case No. 2010CA00200
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY