[Cite as State v. Thompson, 2011-Ohio-1802.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95282
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BOBBY THOMPSON
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-486467
BEFORE: Blackmon, J., Kilbane, A.J., and Rocco, J.
RELEASED AND JOURNALIZED: April 14, 2011
-i-
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APPELLANT
Bobby Thompson, Pro Se
North Central Correctional Institution
P.O. Box 1812
Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
T. Allan Regas
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶ 1} Appellant Bobby Thompson appeals, pro se, the trial court’s
denial of his motion to vacate a void judgment and assigns the following
errors for our review:
“I. Defendant’s sentence is void because judgment entry
does not state that defendant could receive up to half of
his sentence in sanction for violations of postrelease
control as stated in R.C. 2967.28(F)(3) State v. Simpkins,
(2008), 117 Ohio St.3d 420, 884 N.E.2d 568.”
“II. Defendant was denied due process and equal
protection under the law when he was denied copy of
transcript; Greene v. Brigano, (6th Cir.1997), 123 F.3d 917;
U.S. Const. Amend. 14 OH Rules App.Proc.R. 16(A)(7),(D).”
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{¶ 2} Having reviewed the record and pertinent law, we reverse the
trial court’s decision, modify Thompson’s sentence, and remand for the
limited purpose of correcting the journal entry. The apposite facts follow.
{¶ 3} On April 12, 2007, following a jury trial, Thompson was convicted
of rape and subsequently determined to be a sexual predator. On May 22,
2007, the trial court sentenced Thompson to seven years of imprisonment and
advised him that he was subject to five years of postrelease control.
Thompson appealed his conviction, which we affirmed in State v. Thompson,
Cuyahoga App. No. 89965, 2008-Ohio-3019.
{¶ 4} On May 17, 2010, Thompson filed a motion to vacate the
judgment as void on the grounds that the trial court’s sentencing entry did
not indicate the penalty for violating postrelease control. On May 20, 2010,
the trial court denied Thompson’s motion to vacate void judgment.
Thompson now appeals.
Postrelease Control
{¶ 5} In the first assigned error, Thompson argues his sentence is void
and should be vacated because the trial court failed to advise him that he
could be returned to prison for up to half of his original sentence if he violated
postrelease control. The record confirms Thompson’s claim and the state
concedes his claim.1
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R.C. 2929.19(B)(3)(c) requires the trial court to notify an offender who is
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{¶ 6} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, the Ohio Supreme Court recently 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, it 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. Indeed, the Supreme 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.
{¶ 7} Consequently, under R.C. 2953.08(G)(2), we modify and correct
Thompson’s postrelease control to apprise him of the penalty for violating
same and remand to the trial court with instructions to correct the sentencing
convicted of a first degree felony that he will be subject to a period of postrelease
control, pursuant to R.C. 2967.28, following his release from prison. State v.
Greenleaf, 9th Dist. No. 21370, 2003-Ohio-5901. Additionally, R.C. 2929.19(B)(3)(e)
requires the lower court to notify the offender of the resulting consequences upon
violation of the postrelease control sanctions. Id. See, also, State v. Wells, Cuyahoga
App. No. 94956, 2011-Ohio-723. (Advising defendant that violation of the conditions
of postrelease control may result in the Parole Board imposing a prison term of up
to one-half of the stated prison term originally imposed.)
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entry to reflect this advisement. Accordingly, we sustain the first assigned
error.
{¶ 8} Our disposition of the first assigned error renders the remaining
error moot.
{¶ 9} Judgment reversed, sentence is modified, and case remanded.
Upon remand, the trial court is instructed to correct the sentencing entries to
reflect the proper advisement regarding the penalty for violating postrelease
control.
It is ordered that appellant recover of appellee its 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.
PATRICIA ANN BLACKMON, JUDGE
MARY EILEEN KILBANE, A.J., and
KENNETH A. ROCCO, J., CONCUR