[Cite as State v. Turner, 2011-Ohio-2785.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95438
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT TURNER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED; REMANDED FOR
CORRECTION OF JOURNAL ENTRY
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-391413
BEFORE: Cooney, J., Blackmon, P.J., and Jones, J.
RELEASED AND JOURNALIZED: June 9, 2011
ATTORNEYS FOR APPELLANT
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Robert L. Tobik
Cuyahoga County Public Defender
John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Thorin O. Freeman
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶ 1} Defendant-appellant, Robert Turner (“Turner”), appeals the trial court’s
resentencing him to properly impose postrelease control. Finding no merit to the appeal, we
affirm.
{¶ 2} In 2000, Turner was convicted of one count of aggravated burglary and four
counts of felonious assault. He was sentenced to a total of 11 years in prison. In 2001,
Turner appealed his conviction and sentence, and this court affirmed. State v. Turner,
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Cuyahoga App. No. 78520, 2002-Ohio-3766, appeal not allowed, 95 Ohio St.3d 1458,
2002-Ohio-2230, 767 N.E.2d 1177.
{¶ 3} In 2010, Turner filed a motion for a final judgment, arguing that the trial court
failed to properly impose postrelease control during his original sentencing and, therefore, his
sentence is void. The State filed a response in which it argued that although Turner should
be resentenced to impose postrelease control, his sentence is not void. The trial court held a
resentencing hearing on June 25, 2010, at which it properly imposed five years of postrelease
control and advised Turner that a violation could be punished by up to one-half of his prison
sentence.
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{¶ 4} Turner now appeals, raising one assignment of error.
{¶ 5} In his sole assignment of error, Turner argues that the trial court erred when it
failed to conduct a “sentencing de novo.” He contends that the court denied him his right of
allocution when it imposed only postrelease control and not a prison term.
{¶ 6} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958,
paragraph one of the syllabus, the Ohio Supreme Court held that “[f]or 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 journal entry, however, failed to include the notice of consequences for a violation of
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postrelease control. Pursuant to Crim.R. 36, we remand for a correction of the journal entry.
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the Supreme Court of Ohio.” See, also, State v. Simpkins, 117 Ohio St.3d 420,
2008-Ohio-1197, 884 N.E.2d 568; State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868
N.E.2d 961.
{¶ 7} Recently, however, the Ohio Supreme Court held in State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, that “[t]he new sentencing hearing to which an
offender is entitled under State v. Bezak is limited to proper imposition of postrelease
control. (State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus,
modified.)” Fischer, paragraph two of the syllabus. The Fischer court explained:
{¶ 8} “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. Neither
the Constitution nor common sense commands anything more.” Id. at ¶26. (Emphasis in
original and internal citations omitted.)
{¶ 9} Therefore, the trial court did not err in resentencing Turner to postrelease
control without reimposing the remainder of his entire sentence. Pursuant to Fischer, he was
not entitled to a complete resentencing. “[O]nly the offending portion of the sentence is
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subject to review and correction.” Id. at ¶27. Turner was entitled to a new sentencing
hearing limited to the proper imposition of postrelease control. The court achieved this goal.
The Fischer court overruled the portion of the Bezak syllabus that required a complete
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resentencing hearing rather than a hearing restricted to the void portion of the sentence. Id. at ¶36.
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{¶ 10} Accordingly, Turner’s sole assignment of error is overruled.
Judgment affirmed. Case remanded for correction of the journal entry pursuant to
App.R. 9(E) and Crim.R. 36 to include the consequences for a violation of postrelease control.
It is ordered that appellee recover of appellant 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. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
PATRICIA ANN BLACKMON, P.J., and
LARRY A. JONES, J., CONCUR