State v. Ericson

[Cite as State v. Ericson, 2010-Ohio-4315.]
STATE OF OHIO,MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 09 MA 109
)
JOHN ERICSON, ) OPINION
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 09CR207A

JUDGMENT: Affirmed in part
Reversed and remanded in part

APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
James MacDonald
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503

For Defendant-Appellant Attorney Douglas A. King
Hartford, Dickey & King Co., LPA
91 West Taggart Street, P.O. Box 85
East Palestine, Ohio 44413

JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite

Dated: September 10, 2010
[Cite as State v. Ericson, 2010-Ohio-4315.]
DONOFRIO, J.

{¶1} Defendant-appellant John Ericson appeals his conviction and sentence
in the Mahoning County Common Pleas Court for burglary, a violation of R.C.
2911.12(A)(2)(C), a second-degree felony, following his guilty plea.
{¶2} On February 26, 2009, Ericson, along with his co-defendant Anthony
Donley, was indicted by a Mahoning County grand jury for a burglary committed on
May 23, 2007, in Mahoning County, Ohio. The indictment was served upon Ericson
while he was incarcerated at the Lorain Correctional Institution, serving a sentence
on other charges.
{¶3} The state and Ericson entered into a Crim.R. 11 plea agreement
wherein Ericson pleaded guilty to the burglary charge and the state agreed to
recommend a two-year sentence to be served consecutive to the sentence he was
then serving from Trumbull County Common Pleas Court case number 2007-CR-420.
(Plea Hearing Tr. 2). Following a Crim.R. 11 colloquy, the trial court accepted
Ericson’s guilty plea. (Plea Hearing Tr. 8-9).
{¶4} On June 8, 2009, Ericson appeared before the Mahoning County
Common Pleas Court for sentencing. After considering the record, oral statement,
and the pre-sentence investigation report and probation violation report considered in
case number 2004-CR-336 as well as statutory sentencing factors in R.C. 2929.11
and 2929.12, the trial court sentenced Ericson to four years in prison to be served
consecutively to the sentence imposed in Trumbull County Common Pleas Court
case number 2007-CR-420. (06/09/2009 J.E.) The court also indicated that Ericson
was not amenable to community control and that he was subject to postrelease
control of up to five years. (06/09/2009 J.E.) This timely appeal followed.
{¶5} On December 3, 2009, Ericson’s appellate counsel filed a combined no
merit brief pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18
L.Ed.2d 493, and motion to withdraw. In this district a no merit brief is also called a
Toney brief. State v. Toney (1970), 23 Ohio App.2d 203, 52 O.O.2d 304, 262 N.E.2d
419. On December 11, 2009, this court provided Ericson thirty days to file his own
brief, but he did not do so. Relying on Anders, in Toney, this court set forth the
 -2-

procedure to be used when counsel of record determines that an indigent’s appeal is
frivolous:
{¶6} “3. Where a court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the indigent’s appeal is frivolous and
that there is no assignment of error which could be arguably supported on appeal, he
should so advise the appointing court by brief and request that he be permitted to
withdraw as counsel of record.
{¶7} “4. Court-appointed counsel’s conclusion and motion to withdraw as
counsel of record should be transmitted forthwith to the indigent, and the indigent
should be granted time to raise any points that he chooses, pro se.
{¶8} “5. It is the duty of the Court of Appeals to fully examine the
proceedings in the trial court, the brief of appointed counsel, the arguments pro se of
the indigent, and then determine whether or not the appeal is wholly frivolous.
{¶9} “***
{¶10} “7. Where the Court of Appeals determines that an indigent’s appeal is
wholly frivolous, the motion of the court-appointed counsel to withdraw as counsel of
record should be allowed, and the judgment of the trial court should be affirmed.” Id.
at syllabus.
{¶11} Since Ericson pleaded guilty to the burglary charge, there are two
issues that Ericson could appeal: 1) whether the plea was entered into knowingly,
intelligently, and voluntarily and 2) the sentence.
{¶12} When determining the voluntariness of a plea, this court must consider
all of the relevant circumstances surrounding it. State v. Trubee, 3d Dist. No. 9-03-65,
2005-Ohio-552, at ¶8, citing Brady v. United States (1970), 397 U.S. 742, 90 S.Ct.
1463, 25 L.Ed.2d 747. Pursuant to Crim.R. 11(C)(2), the trial court must follow a
certain procedure for accepting guilty pleas in felony cases. Before the court can
accept a guilty plea to a felony charge, it must conduct a colloquy with the defendant
to determine that he understands the plea he is entering and the rights he is
voluntarily waiving. Crim.R. 11(C)(2). If the plea is not knowing and voluntary, it has
 -3-

been obtained in violation of due process and is void. State v. Martinez, 7th Dist. No.
03-MA-196, 2004-Ohio-6806, at ¶11, citing Boykin v. Alabama (1969), 395 U.S. 238,
243, 89 S.Ct. 1709, 23 L.Ed.2d 274. The advisements pursuant to Crim.R. 11(C) that
the court is required to make prior to accepting the plea are typically divided into
constitutional and non-constitutional rights.
{¶13} The constitutional rights include the right against self-incrimination, the
right to a jury trial, the right to confront one’s accusers, the right to compel witnesses
to testify by compulsory process, and the right to have the state prove the
defendant’s guilt beyond a reasonable doubt. Crim.R. 11(C)(2)(c); State v. Veney,
120 Ohio St.3d 176, 2008-Ohio-5200, ¶19-21. A trial court must strictly comply with
these requirements. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897
N.E.2d 621, at ¶31; State v. Ballard (1981), 66 Ohio St.2d 473, 477.
{¶14} The nonconstitutional rights include that the defendant must be
informed of the nature of the charges, including the maximum penalty involved (which
includes an advisement on postrelease control), that the defendant must be
informed, if applicable, that he is not eligible for probation or the imposition of
community control sanctions, and that the court may proceed to judgment and
sentence after accepting the guilty plea. Crim.R. 11(C)(2)(a)(b); Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at ¶10-13; State v. Sarkozy, 117 Ohio
St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶19-26, (indicating that postrelease
control is a nonconstitutional advisement). For the nonconstitutional rights, the trial
court must substantially comply with Crim.R. 11’s mandates. State v. Nero (1990), 56
Ohio St.3d 106, 108, 564 N.E.2d 474. “Substantial compliance means that under the
totality of the circumstances the defendant subjectively understands the implications
of his plea and the rights he is waiving.” Veney, 120 Ohio St.3d 176, 2008-Ohio-
5200, 897 N.E.2d 621, at ¶15 quoting Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474.
Furthermore, a defendant who challenges his guilty plea on the basis that the
advisement for the nonconstitutional rights did not substantially comply with Crim.R.
11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea would not have
 -4-

been otherwise entered. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d
621, at ¶15 citing Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474.
{¶15} A review of the plea hearing transcript indicates that Ericson was
advised of all of the constitutional rights he was waiving by entering a guilty plea. He
was advised of the right to a trial by jury, the right to have the state prove its case
beyond a reasonable doubt, the right to cross-examine witnesses against him, the
right to compel witnesses to testify on his behalf, and the right against self-
incrimination. (Plea Hearing Tr. 3-4).
{¶16} Next, we turn to whether the trial court substantially complied with the
nonconstitutional advisements. The trial court informed Ericson that the court could
sentence him to a two, three, four, five, six, seven, or an eight year term of
imprisonment and that he could be fined up to $15,000. (Plea Hearing Tr. 4, 5). This
is a correct recitation of the penalties involved for a second-degree felony. R.C.
2929.14(A)(2) (indicating the possible sentence for a second-degree felony); R.C.
2929.18(A)(3)(b) (indicating the fine for a second-degree felony).
{¶17} The trial court also indicated that Ericson was eligible for community
control sanctions as a result of this offense. (Plea Hearing Tr. 4-5). While R.C.
2929.13(D)(1) indicates that a second-degree felony burglary offense carries a
presumption that a prison term is necessary, R.C. 2929.13(D)(2) provides that a trial
court may depart from that presumption when it finds two specific factors. Thus, the
court’s advisement was technically correct.
{¶18} The trial court also advised Ericson that after accepting the plea, the
court is permitted to proceed immediately with judgment and sentence. (Plea Hearing
Tr. 4).
{¶19} As for postrelease control, Ericson was convicted of a second-degree
felony. When sentencing an offender on a first- or second-degree felony, certain
third-degree felonies, and felony sex offenses, the trial court is required to impose a
period of postrelease control. R.C. 2967.28(B). For a second-degree felony, the
 -5-

postrelease control period is a mandatory three years. R.C. 2967.28(B)(2).1 Here, at
the plea hearing, the trial court advised Ericson on postrelease control as follows:
{¶20} “THE COURT: Now, if this court does sentence you to prison, do you
understand when you’re released from prison you could be subject to a period of
post-release control for up to three years?
{¶21} “THE DEFENDANT: Yes, ma’am.
{¶22} “THE COURT: And if you are placed on post-release control and you
violate any term or condition of that post-release control, do you understand that the
time you’re on post-release control can be increased, or you could be placed back in
prison for segments up to nine months but for no more than half of the total time this
court would sentence you to?
{¶23} “THE DEFENDANT: Yes, Ma’am.
{¶24} “THE COURT: Furthermore, if you commit a new felony while on post-
release control, do you understand that any prison time you get for that new felony
would be in addition to and consecutive to prison time you would have to spend for
either the balance of your post-release control time of 12 months, whichever’s
greater.” (Plea Hearing Tr. 5-6).
{¶25} As the above colloquy demonstrates, the trial court seemed to indicate
to Ericson that the imposition of postrelease control is discretionary when in fact it is
mandatory. The written plea agreement also incorrectly indicated that postrelease
control was discretionary, not mandatory.

1. {¶ a} R.C. 2967.28(B) provides in pertinent part:
{¶ b} “(B) Each sentence to a prison term for a felony of the first degree, for a felony of the
second degree, for a felony sex offense, or for a felony of the third degree that is not a felony sex
offense and in the commission of which the offender caused or threatened to cause physical harm to a
person shall include a requirement that the offender be subject to a period of post-release control
imposed by the parole board after the offender’s release from imprisonment. If a court imposes a
sentence including a prison term of a type described in this division on or after July 11, 2006, the
failure of a sentencing court to notify the offender pursuant to division (B)(3)(c) of section 2929.19 of
the Revised Code of this requirement or to include in the judgment of conviction entered on the journal
a statement that the offender’s sentence includes this requirement does not negate, limit, or otherwise
affect the mandatory period of supervision that is required for the offender under this division.
{¶ c} “* * *
{¶ d} “(2) For a felony of the second degree that is not a felony sex offense, three years[.]”
(Emphasis added.)
 -6-

{¶26} However, despite the misinformation about whether postrelease control
was mandatory or discretionary, the trial court’s remaining advisement on
postrelease control was clear and accurate. The trial court correctly advised Ericson
that the term of postrelease control would be three years and the consequences for
violating the terms thereof. Thus, given that instruction, we find that there is some
compliance here.
{¶27} Admittedly, the Ohio Supreme Court in Sarkozy stated in paragraph two
of the syllabus:
{¶28} “If the trial court fails during the plea colloquy to advise a defendant that
the sentence will include a mandatory term of postrelease control, the court fails to
comply with Crim.R. 11, and the reviewing court must vacate the plea and remand
the cause.”
{¶29} As this court recognized in State v. Berch, 7th Dist. No. 08-MA-52,
2009-Ohio-2895, at first blush, the foregoing quote seems to support the idea that
Berch’s plea should be vacated. However, factually in Sarkozy, the Ohio Supreme
Court was ruling on a plea colloquy that failed to mention postrelease control at all
and found in that instance, that there was no compliance with Crim.R. 11. During its
analysis it stated:
{¶30} “Rather, we find that there was no compliance with Crim.R. 11. The
trial court did not merely misinform Sarkozy about the length of his term of
postrelease control. Nor did the court merely misinform him as to whether
postrelease control was mandatory or discretionary. Rather, the court failed to
mention postrelease control at all during the plea colloquy. Because the trial court
failed, before it accepted the guilty plea, to inform the defendant of the mandatory
term of postrelease control, which was a part of the maximum penalty, the court did
not meet the requirements of Crim.R. 11(C)(2)(a).” Id. at ¶22.
{¶31} In Berch we noted that this paragraph indicates that misinforming a
defendant about whether the postrelease control is mandatory or discretionary does
not per se amount to a Crim.R. 11 violation that necessitates the vacation of a plea.
 -7-

Berch at ¶33. Thus, the question now becomes, did the trial court in this case
substantially comply or only partially comply with Crim.R. 11(C). Because of the
misinformation at the plea colloquy about whether the postrelease control was
mandatory or discretionary and the fact that the written plea agreement incorrectly
stated that the postrelease control was discretionary instead of mandatory, there was
no substantial compliance. However, due to the correctness of the remaining
advisement on postrelease control there was partial compliance.
{¶32} Since there was partial compliance, the only way that the plea can be
vacated is if Ericson can demonstrate a prejudicial effect. As stated above, the test
for prejudice is “whether the plea would have otherwise been made.” Nero, 56 Ohio
St.3d at 108. The Supreme Court has not offered much guidance as to what this
entails.
{¶33} That said, given the facts of this case, prejudice cannot be found. In
this instance, Ericson was indicted for burglary, in violation of R.C. 2911.12(A)(2)(C),
a second-degree felony. He faced a maximum of eight years in prison. Instead, his
trial counsel was able to negotiate a plea agreement that resulted in the state
recommending only a two-year prison term. It was a plea agreement favorable to
Ericson and provided a compelling incentive to plead. While the trial court did not
follow that recommendation, it still sentenced Ericson to four years in prison, only half
of the maximum he faced. It is a reasonable conclusion that the plea would still have
been made if the trial court had advised Ericson that the period of postrelease control
was mandatory instead of discretionary. Moreover, given that a Toney brief was
submitted in this matter, the record does not disclose any concern by Ericson or his
counsel on this issue. In other words, neither Ericson nor his counsel has pointed out
to this court any perceived prejudice.
{¶34} In sum, Crim.R. 11(C) was more than adequately complied with and, as
such, there are no appealable issues concerning the plea.
{¶35} Turning to sentencing, there are two aspects of Ericson’s sentence that
need to be addressed separately – imprisonment and postrelease control. The trial
 -8-

court sentenced Ericson to a four-year term of imprisonment to run consecutive to the
sentence he was serving from his Trumbull County conviction. The trial court also
stated that Ericson could be subject to a period of postrelease control of up to five
years. (06/09/2009 J.E.; Sentencing Hearing Tr. 7). The trial court did not fine
Ericson.
{¶36} The Ohio Supreme Court has held that in reviewing felony sentences,
the appellate courts must use a two-prong approach. “First, they must examine the
sentencing court’s compliance with all applicable rules and statutes in imposing the
sentence to determine whether the sentence is clearly and convincingly contrary to
law. If this first prong is satisfied, the trial court’s decision in imposing the term of
imprisonment shall be reviewed under an abuse of discretion standard.” State v.
Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶4, citing State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
{¶37} The analysis begins with whether Ericson’s four-year sentence for the
second degree felony burglary conviction is contrary to law. This sentence fell within
R.C. 2929.14(A)(2)’s statutory sentencing range for a second degree felony. Also,
the judgment entry reflects that the trial court considered the purposes and principles
of sentencing under R.C. 2929.11 and the seriousness and recidivism factors as
required by R.C. 2929.12. (06/09/2009 J.E.). However, in the sentencing transcript
the trial court did not mention R.C. 2929.11 and R.C. 2929.12. Despite the lack of
reference at the sentencing hearing to either R.C. 2929.11 or R.C. 2929.12, it is clear
from the transcript that the trial court considered those statutes. The trial court was
aware of Ericson’s “pretty bad history” of criminal activity, the fact that he is a drug
addict, that he has been a model prisoner while in the penitentiary for the Trumbull
County conviction, and that he expressed remorse for the crime. (Sentencing Hearing
Tr. 3-4). Consequently, as to the sentence to a four-year term to run consecutive to
the Trumbull County sentence, the sentence was not contrary to law; the trial court
considered all applicable statutes.
{¶38} Having found that the four-year term of imprisonment sentence is not
 -9-

contrary to law, we now turn to whether the trial court abused its discretion in
sentencing Ericson to four years. Kalish at ¶4. In the Toney brief, counsel indicates
that Ericson believes that the court abused its discretion in not following the two-year
sentencing recommendation from the state. Given Ericson’s criminal record and the
fact that the sentence is within the applicable sentencing range, this court finds that
the trial court did not abuse its discretion. Furthermore, the court adequately
explained to Ericson during the plea hearing that it was permitted to sentence him
within the applicable sentencing range. Courts are not bound by the state’s
recommendation in sentencing, even when the recommended sentence induces the
defendant to plead guilty to an offense. Martinez, 7th Dist. No. 03-MA-196, 2004-
Ohio-6806, at ¶8, citing State v. Buchanan, 154 Ohio App.3d 250, 253, 2003-Ohio-
4772, 796 N.E.2d 1003, State v. Mayle, 11th Dist. No.2002-A-0110, 2004-Ohio-2203,
State v. Tucci, 7th Dist. No. 01 CA234, 2002-Ohio-6903. Thus, the fact that the state
recommended a two-year sentence in this case by no means obligated the trial court
to impose this sentence, nor does it render the trial court’s decision in this instance to
sentence Ericson to a four-year sentence an abuse of discretion. State v. Kelly, 7th
Dist. No. 08-C)-17, 2009-Ohio-1035, ¶31.
{¶39} Therefore, as to the four-year sentence for the second-degree felony
burglary conviction there are no appealable issues.
{¶40} Turning now to the postrelease control sentence, as aforementioned,
the trial court stated that Ericson could be subject to a period of postrelease control of
up to five years. (06/09/2009 J.E.; Sentencing Hearing Tr. 7). That statement is
incorrect because it indicates that the term of postrelease control is not mandatory
and also incorrectly states the term of postrelease control. R.C. 2967.28(B)(2)
provides that for a second-degree felony, that is not a felony sex offense, the
offender is subject to a mandatory three-year term of postrelease control.
{¶41} The Ohio State Supreme Court set out the proper remedy for this error
in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434. See also State v. Mock,
7th Dist. No. 08-MA-94, 2010-Ohio-2747. In Singleton, upon sentencing the
 - 10 -

defendant, the trial court improperly stated that he was subject only to the possibility
of five years postrelease control and it did not specify that the parole board could
impose an additional prison term of up to one-half of his prison sentence for a
violation of postrelease control. The court of appeals agreed and remanded the
matter for a de novo resentencing hearing. The state appealed arguing that prior to
the expiration of a prison term, a trial court may correct a sentence lacking a
mandatory term of postrelease control pursuant to R.C. 2929.191, which was
enacted on July 11, 2006.2
{¶42} The Ohio Supreme Court acknowledged its prior holdings that when a
trial court imposes a sentence without properly notifying the defendant of postrelease
control, the sentence is contrary to law and void. Id. at ¶14, citing State v. Jordan,
104 Ohio St.3d 21, 2004-Ohio-6085, State v. Beasley (1984), 14 Ohio St.3d 74.
However, the Court noted that before the enactment of R.C. 2929.191 in July 2006,
there was no statutory mechanism to correct a sentence that failed to comport with
the statutory postrelease control requirements. Id. at ¶22. But the Court observed

2. {¶ a} R.C. 2929.191 provides in pertinent part:
{¶ b} “(A)(1) If, prior to the effective date of this section, a court imposed a sentence including
a prison term of a type described in division (B)(3)(c) [first- or second-degree felony, felony sex
offense, or third-degree felony where offender threatened or caused physical harm] of section 2929.19
of the Revised Code and failed to notify the offender pursuant to that division that the offender will be
supervised under section 2967.28 of the Revised Code after the offender leaves prison or to include a
statement to that effect in the judgment of conviction entered on the journal or in the sentence
pursuant to division (F)(1) of section 2929.14 of the Revised Code, at any time before the offender is
released from imprisonment under that term and at a hearing conducted in accordance with division
(C) of this section, the court may prepare and issue a correction to the judgment of conviction that
includes in the judgment of conviction the statement that the offender will be supervised under section
2967.28 of the Revised Code after the offender leaves prison.
{¶ c} “* * *
{¶ d} “(C) On and after the effective date of this section, a court that wishes to prepare and
issue a correction to a judgment of conviction of a type described in division (A)(1) or (B)(1) of this
section shall not issue the correction until after the court has conducted a hearing in accordance with
this division. Before a court holds a hearing pursuant to this division, the court shall provide notice of
the date, time, place, and purpose of the hearing to the offender who is the subject of the hearing, the
prosecuting attorney of the county, and the department of rehabilitation and correction. The offender
has the right to be physically present at the hearing, except that, upon the court’s own motion or the
motion of the offender or the prosecuting attorney, the court may permit the offender to appear at the
hearing by video conferencing equipment if available and compatible. An appearance by video
conferencing equipment pursuant to this division has the same force and effect as if the offender were
physically present at the hearing. At the hearing, the offender and the prosecuting attorney may make
a statement as to whether the court should issue a correction to the judgment of conviction.”
 - 11 -

that with R.C. 2929.191, the legislature provided a statutory remedy to correct a
failure to properly impose postrelease control. Id. at ¶23. It explained:
{¶43} “Effective July 11, 2006, R.C. 2929.191 establishes a procedure to
remedy a sentence that fails to properly impose a term of postrelease control. It
applies to offenders who have not yet been released from prison and who fall into at
least one of three categories: those who did not receive notice at the sentencing
hearing that they would be subject to postrelease control, those who did not receive
notice that the parole board could impose a prison term for a violation of postrelease
control, or those who did not have both of these statutorily mandated notices
incorporated into their sentencing entries. R.C. 2929.191(A) and (B). For those
offenders, R.C. 2929.191 provides that trial courts may, after conducting a hearing
with notice to the offender, the prosecuting attorney, and the Department of
Rehabilitation and Correction, correct an original judgment of conviction by placing on
the journal of the court a nunc pro tunc entry that includes a statement that the
offender will be supervised under R.C. 2967.28 after the offender leaves prison and
that the parole board may impose a prison term of up to one-half of the stated prison
term originally imposed if the offender violates postrelease control.” Id.
{¶44} The Court further pointed out that the R.C. 2929.191 hearing pertains
only to the “flawed imposition of postrelease control” as the General Assembly
apparently intended to “leave undisturbed the sanctions imposed upon the offender
that are unaffected by the court’s failure to properly impose postrelease control at the
original sentencing.” Id. at ¶24.
{¶45} Consequently, the Court held:
{¶46} “1. For criminal sentences imposed prior to July 11, 2006, in which a
trial court failed to properly impose postrelease control, trial courts shall conduct a de
novo sentencing hearing in accordance with decisions of the Supreme Court of Ohio.
{¶47} “2. For criminal sentences imposed on and after July 11, 2006, in
which a trial court failed to properly impose postrelease control, trial courts shall
apply the procedures set forth in R.C. 2929.191.” Id. at paragraphs one and two of
 - 12 -

the syllabus.
{¶48} Because Ericson was convicted and sentenced after the July 11, 2006,
enactment of R.C. 2929.191 and is still serving his prison sentence, the proper
procedure here is to remand the matter to the trial court to hold a hearing pursuant to
R.C. 2929.191(C) while keeping the remainder of Ericson’s sentence intact.
{¶49} In conclusion, there are no appealable issues concerning the plea or
the trial court’s imposition of a four-year prison sentence and, to that extent, the
decision of the trial court is hereby affirmed. However, the trial court failed to
properly impose postrelease control. Therefore, with regard only to the improper
imposition of postrelease control, the decision of the trial court is hereby reversed
and the matter is remanded to the trial court for the limited purpose of a R.C.
2929.191 hearing to correct the postrelease control portion of Ericson’s sentence.
Counsel’s motion to withdraw is denied.

Vukovich, P.J., concurs.

Waite, J., concurs.