[Cite as State v. Williams, 2011-Ohio-3267.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96323
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DENNIS WILLIAMS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-432748
BEFORE: Kilbane, A.J., Sweeney, J., and Jones, J.
RELEASED AND JOURNALIZED: June 30, 2011
APPELLANT
Dennis Williams, Pro Se
Inmate No. 453-475
Grafton Correctional Institution
2500 S. Avon-Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Mary McGrath
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} This appeal is before the court on the accelerated docket pursuant
to App.R. 11.1 and Loc.App.R. 11.1.
{¶ 2} Defendant-appellant, Dennis Williams (Williams), pro se, appeals
the trial court’s denial of his motion to correct a void sentence. For the
reasons that follow, we remand the case for the limited purpose to correct the
sentencing entry regarding postrelease control.
{¶ 3} The facts of this case were previously set forth by this court in
State v. Williams, Cuyahoga App. No. 85858, 2005-Ohio-4422, as follows:
“On January 22, 2003, the Cuyahoga County Grand Jury
jointly indicted Williams and his co-defendant, Lawrence
Royster, on eight counts: two counts for aggravated
murder with felony-murder specifications, one count for
aggravated arson, two counts for aggravated robbery, and
three counts for intimidation. All of the counts had one-
and three-year firearm specifications attached. The
counts arose from Williams setting fire to Lawrence
Royster’s home to cover up the murder of Kenyard Drake.
On June 6, 2003, Williams entered a guilty plea to an
amended count of involuntary manslaughter, one count of
aggravated arson, and one count of aggravated robbery.
He also pled to the attached three-year firearm
specifications. The remaining counts were nolled.
Williams filed a motion to vacate his plea prior to being
sentenced, which was denied. On October 6, 2003, the
trial court sentenced Williams to ten years on the
involuntary manslaughter count, six years on the
aggravated arson count, two years on the aggravated
robbery count, and a mandatory three years on each of the
firearm specifications, which were merged. The
sentences were imposed consecutively for a total of
twenty-one years.
Williams filed a notice of appeal from his plea and
sentence. However, he thereafter voluntarily dismissed
the appeal. [State v. Williams (December 22, 2003),
Cuyahoga App. No. 83706.] This court denied his motion
to reinstate the appeal and motion to file a delayed appeal.
Id. at ¶3-6.”
{¶ 4} In September 2004, Williams filed another motion to withdraw
his guilty plea, which the trial court denied. In December 2004, he filed a
motion to correct his sentence, which the trial court also denied. This court
affirmed the trial court’s denial of his motion to correct his sentence, finding
that Williams’s claim cannot be considered because it is barred by res
judicata. Id. at ¶10.
{¶ 5} Then, in December 2010, Williams filed another motion to correct
a void sentence in light of the Ohio Supreme Court’s rulings in State v. Bezak,
114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, and State v. Singleton,
124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, arguing that he is
entitled to a de novo sentencing hearing because the trial court failed to
properly notify him of postrelease control. The State opposed the motion,
arguing that Williams’s sentence is not void and may be corrected by a nunc
pro tunc journal entry. The trial court denied Williams’s motion in January
2011.
{¶ 6} It is from this order that Williams now appeals, raising the
following two assignments of error for review.
ASSIGNMENT OF ERROR ONE
“The trial court committed reversible error when it failed
to properly notify [Williams] that five years of postrelease
control was mandatory in his case during his sentencing
hearing on September 30, 2003 and failed to properly
include postrelease control into the judgment entry of that
sentence; violating [R.C. 2967.28] and [Williams’s] right to
Due Process protected by both the Ohio and United States
Constitutions.”
ASSIGNMENT OF ERROR TWO
“The trial court abused its discretion when it overruled
[Williams’s] Motion to Correct a Void Sentence for lack of
properly imposed postrelease control.”
{¶ 7} As an initial matter, we note that both of Williams’s assigned
errors challenge the trial court’s imposition of postrelease control at the
September 2003 sentencing hearing. In State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court recently held that
principles of res judicata, including the doctrine of the law of the case, do not
preclude appellate review of the imposition of postrelease control and that the
sentence may be reviewed at any time, on direct appeal or by collateral
attack. Thus, the issue of Williams’s postrelease control is properly before
this court.
{¶ 8} Williams argues his sentence is void because the trial court failed
to advise him at the sentencing hearing and include in the sentencing journal
entry that he would be subject to five years mandatory postrelease control
upon his release from prison. He claims that the trial court’s failure to use
“mandatory language” rendered his sentence void and entitled him to a de
novo hearing. However, we are unable to determine whether the trial court
properly sentenced Williams to a mandatory five years of postrelease control
at the sentencing hearing because he did not file a transcript of that hearing.
{¶ 9} In Ohio, the appellant has the duty to file the transcript or such
parts of the transcript that are necessary for evaluating the lower court’s
decision. See App.R. 9(B); Knapp v. Edwards Laboratories (1980), 61 Ohio
St.2d 197, 199, 400 N.E.2d 384. The failure to file the transcript prevents an
appellate court from reviewing the appellant’s assignments of error. State v.
Turner, Cuyahoga App. No. 91695, 2008-Ohio-6648, ¶13, appeal not allowed,
121 Ohio St.3d 1476, 2009-Ohio-2045, 905 N.E.2d 655. Thus, absent a
transcript or alternative record, we must presume regularity in the
proceedings below. Knapp at 199.
{¶ 10} Since Williams did not file a transcript of the proceedings below,
which is necessary for our determination of the issue before us, his argument
that the trial court failed to provide proper notice of postrelease control
during the sentencing hearing is without merit.
{¶ 11} Our analysis does not end here, however, because Williams also
claims that the trial court failed to properly incorporate his postrelease
control obligations into its sentencing journal entry. This portion of his
argument has merit. In the sentencing journal entry, the trial court stated
“[p]ost release control is part of this prison sentence for the maximum period
allowed for the above felony(s) under R.C. 2967.28.” Williams argues the
trial court was required to state that he was obligated to serve a mandatory
period of five years of postrelease control.
{¶ 12} This court has held that it is insufficient for the court to inform
the defendant at sentencing and in its journal entry that he “may be” subject
to postrelease control when postrelease control is mandatory. See State v.
Nicholson, Cuyahoga App. No. 95327, 2001-Ohio-14, ¶12. Here, Williams
plead guilty to a first degree felony, so he was subject to a mandatory
five-year period of postrelease control. See R.C. 2967.28(B)(1). Therefore,
the court did not properly impose a mandatory five-year period of postrelease
control in its sentencing entry.
{¶ 13} Furthermore, this court has also held that if a court imposes a
prison sentence that includes a term of postrelease control, the court must
notify the offender, both at the sentencing hearing and in its journal entry,
that the parole board could impose an additional prison term if the offender
violates the terms and conditions of postrelease control. State v. James,
Cuyahoga App. No. 94400, 2010-Ohio-5361, ¶25. In the instant case, the
trial court erred by failing to state in its journal entry that the parole board
could impose an additional term of incarceration if Williams violates the
terms and conditions of postrelease control. See State v. Rice, Cuyahoga
App. No. 95100, 2011-Ohio-1929, ¶10 (where this court, relying on Fischer,
remanded appellant’s case for the trial court to correct the sentencing journal
entry to reflect that appellant could be subject to further incarceration for
violation of terms and conditions of postrelease control.)
{¶ 14} The State argues that under Fischer, this court can correct
Williams’s sentence without remanding for a resentencing hearing. We find
the State’s argument more persuasive.
{¶ 15} In Fischer, the Ohio Supreme Court recognized that appellate
courts do not have to remand a sentence that includes an improper period of
postrelease control, calling remand “just one arrow in the quiver.” Id. at ¶29.
Instead, the Fischer court acknowledged that an appellate court’s discretion
to correct “a defect in a sentence without a remand is an option that has been
used in Ohio and elsewhere for years in cases in which the original
sentencing court, as here, had no sentencing discretion.” Id. The court
explained, “[c]orrecting the defect without remanding for resentencing can
provide an equitable, economical, and efficient remedy for a void sentence [,]”
in cases where “a trial judge does not impose postrelease control in
accordance with statutorily mandated terms.” Id. at ¶30.
{¶ 16} Accordingly, we remand the matter with instructions to the trial
court to correct its journal entry dated October 6, 2003, to reflect that
Williams is subject to five years mandatory postrelease control and that an
additional term of up to one-half of his prison sentence could be imposed if
Williams violates the terms and conditions of his postrelease control. See
State v. Norris, Cuyahoga App. No. 95485, 2011-Ohio-1795, ¶22; State v.
Williams, Cuyahoga App. Nos. 94321–94323, 2011-Ohio-316, ¶29.
{¶ 17} Judgment is affirmed and the sentence is modified. The matter
is remanded with instructions to the trial court to correct its sentencing entry
dated October 6, 2003 to reflect that Williams is subject to five years
mandatory postrelease control and that Williams could be subject to an
additional term of up to one-half of his prison sentence if he violates the
terms and conditions of his postrelease control.
It is ordered that the parties share equally the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
JAMES J. SWEENEY, J., and
LARRY A. JONES, J., CONCUR