Opinion
No. 2010 CA 39.
Rendered on September 3, 2010.
Criminal appeal from Common Pleas Court, T.C. NO. 03CR44.
Amy M. Smith, Atty. Reg. No. 0081712, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee.
David E. Kidd, #448054, Defendant-Appellant.
OPINION
{¶ 1} In May of 2003, appellant entered guilty pleas to two counts of trafficking in crack cocaine (felonies of the second degree).
{¶ 2} The trial court sentenced appellant to an agreed-upon mandatory five-year prison term on each count, to be served consecutively. The conviction and sentence was affirmed. State v. Kidd, Clark App. No. 2003 CA 43, 2004-Ohio-6784. There have been other motions and appeals that are not relevant to the specific matter now on appeal.
{¶ 3} On February 22, 2010, appellant filed a "Motion for Resentencing" arguing that his 2003 sentence was a nullity because his judgment entry of conviction stated that "the court has further notified the defendant that post-release control is optional in this case up to a maximum of three years. . . ." The trial court denied the motion without explanation and defendant timely appealed. The trial court simultaneously denied a motion to withdraw the plea, but this has not been appealed.
{¶ 4} The Appellant's sole assignment of error states "The Trial Court Abuses It Discretion When it Summarily Dismisses a Jurisdictional Motion filed to it by a Defendant when a Superior Court has Previously Decided The Issue And Precedice Has Been Established" [sic]. He argues that since he was sentenced for second degree felonies, which require mandatory post-release control for three years, his sentence, which included "optional" post-release control "up to a maximum of three years" was void; he notes that "[t]his statement [concerning `optional. . .up to a maximum of three years. . .'] is the basis of. . .[this] appeal." He requests that we "reverse and remand this case to the trial court for resentencing." The State has filed a brief in which it concedes error and requests that the matter be remanded for resentencing.
{¶ 5} "A trial court is required to notify a defendant at the time of the sentencing hearing of the potential of post-release control, and must incorporate that notice into its journal entry. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085. Where a sentence fails to contain a statutorily mandated term, such as post-release control, this sentence is void. Id. The remedy is to resentence [the defendant] and notify him at the hearing of his post-release control requirements. State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197; State v. Davis, Montgomery App. No. 22403, 2008-Ohio-6722; R.C. 2929.191." State v. Golson, Montgomery App. No. 22927, 2010-Ohio-560, ¶ 10.
{¶ 6} The sentence in this case is reversed, and the matter is remanded for sentencing according to law.
DONOVAN, P.J. and FAIN, J., concur.
Copies mailed to:
Amy M. Smith David E. Kidd Hon. Douglas M. Rastatter