[Cite as State v. Fowler, 2011-Ohio-3356.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25467
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANTHONY G. FOWLER, II COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2001 05 1306C
DECISION AND JOURNAL ENTRY
Dated: July 6, 2011
CARR, Judge.
{¶1} Appellant, Anthony Fowler, appeals the judgment of the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} In 2001, Fowler pleaded guilty to one count of attempted aggravated burglary.
The trial court sentenced him to two years in prison. The sentencing entry does not properly
impose postrelease control. The following year, the trial court granted judicial release and
placed Fowler on community control for a period of 18 months. In 2003, the trial court
terminated his community control.
{¶3} In 2010, Fowler moved to declare his conviction void. The State responded that
his sentence was void and, because he had served his entire sentence, the trial court could not
resentence him. The trial court, in a lengthy journal entry, recounted the Ohio Supreme Court’s
cases addressing improper imposition of postrelease control. The trial court denied the motion to
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declare the conviction void, concluding that, at most, it could have found his sentence to be void,
and resentenced Fowler, if he were still serving his sentence.
{¶4} Fowler has appealed, raising one assignment of error.
II.
ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
DECLARE HIS CONVICTION VOID.”
{¶5} Fowler has argued that the trial court erred when it denied his motion to declare
his conviction void. Pursuant to State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the trial
court properly denied the motion. Accordingly, this Court affirms.
{¶6} After the parties filed their briefs on appeal in this Court, the Ohio Supreme Court
decided Fischer. It held “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.”
Id. at ¶26 (footnote omitted). The Supreme Court clarified that when a sentence is void in part,
“only the portion that is void may be vacated or otherwise amended.” Id. at ¶28. In this case, the
trial court’s failure to impose postrelease control made that part of the sentence void. The
remainder of Fowler’s sentence, and conviction, remained valid. Thus, the trial court did not err
when it denied Fowler’s motion to declare his conviction void.
III.
{¶7} Fowler’s assignment of error is overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
MOORE, J.
CONCURS
BELFANCE, P.J.
CONCURS IN JUDGMENT ONLY
APPEARANCES:
KIRK A. MIGDAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.