[Cite as State v. Evans,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95692

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

REGINALD EVANS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED; REMANDED FOR CORRECTION OF SENTENCING ENTRY

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-400717

BEFORE: Blackmon, P.J., Boyle, J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: May 5, 2011

APPELLANT 2

Reginald Evans, Pro se Inmate No. 406-977 Allen Correctional Institution 2338 North West Street Lima, Ohio 45802-4501

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

By: Kristen L. Sobieski Assistant County Prosecutor Justice Center 8th Floor 1200 Ontario Street Cleveland, Ohio 44113

PATRICIA ANN BLACKMON, P.J.:

{¶ 1} Appellant Reginald Evans (“Evans”) appeals pro se the trial

court’s denial of his motion to vacate his sentence and assigns the following

error for our review:

“The trial court erred as a matter of law in refusing to

vacate the void sentence in this case.” 3 {¶ 2} Having reviewed the record and pertinent law, we affirm the trial

court’s decision but remand for the trial court to correct the journal entry.

The apposite facts follow.

Facts

{¶ 3} On January 9, 2001, Evans was charged with one count of

aggravated murder with a three-year firearm specification. Evans exercised

his right to a jury trial, and on May 29, 2001, the jury found Evans guilty of

the lesser offense of murder with a three-year firearm specification. The

trial court sentenced Evans to 15 years to life with a consecutive sentence of

three years for the firearm specification.

{¶ 4} Evans filed a direct appeal, and we affirmed his conviction and

sentence. State v. Evans, Cuyahoga App. No. 79895,

. In

addition to filing an appeal, Evans also filed a petition for postconviction

relief, which the trial court denied. Evans appealed, and we affirmed the

trial court’s decision. State v. Evans, Cuyahoga App. No. 87017,

.

{¶ 5} On July 21, 2010, Evans filed a “motion to vacate void sentence”

in which he argued the trial court erred by imposing postrelease control,

rendering his entire sentence void. The trial court denied the motion.

Evans now appeals the trial court’s denial of the motion.

Postrelease Control 4 {¶ 6} In his sole assigned error, Evans argues the trial court’s

imposition of postrelease control for murder was not authorized pursuant to

R.C. 2967.28; therefore, he claims his entire sentence is void, and he has a

right to a new sentencing hearing.

{¶ 7} Evans was convicted of murder with a firearm specification.

Murder is not a classified felony; it is a special felony subject to a sentence of

life imprisonment with parole eligibility after 15 years. Thus, the

postrelease control statute does not apply to a murder conviction. State v.

Clark,

,

,

; R.C.

2967.28. R.C. 2967.28(B) provides that postrelease control applies to “each

sentence to a prison term for a felony of the first degree, for a felony of the

second degree, for a felony sex offense, or for a felony of the third degree that

is not a felony sex offense and in the commission of which the offender caused

or threatened to cause physical harm to a person.”1 Thus, the statute does

not provide postrelease control for unclassified felonies. Instead of

postrelease control, when an offender convicted of an unclassified felony is

released from prison he or she is subject to parole. Clark at ¶36; R.C.

2967.13(A)(1).

1 For lesser felonies, R.C. 2967.28(C) provides felonies of the third, fourth, or fifth degree that are not subject to section (B) receive a period of up to three years postrelease control. 5 {¶ 8} Here, the trial court imposed postrelease control on Evans

without statutory authority to do so. Evans’s murder conviction subjects him

to parole not postrelease control. The query is what should be done to

correct this error. This court has previously found in analogous situations

(where defendant was convicted of murder and postrelease control was

imposed) that the proper remedy for such error was not to find the sentence

void and remand for resentencing, because the defendant, pursuant to the

statute, is not subject to postrelease control. State v. McIntosh, Cuyahoga

App. No. 93714,

; State v. Rolling, Cuyahoga App. No. 95473,

; State v. McCree, Cuyahoga App. No. 87951,

;

State v. Austin, Cuyahoga App. No. 93028,

. As this court in

Austin explained:

“While this court has recently held that such broad

language is insufficient to satisfy the statutory

notification requirements when the defendant faces

mandatory postrelease control, we find the instant case

distinguishable because Austin does not face any term of

postrelease control. See generally State v. Siwik,

Cuyahoga App. No. 92341,

. Accordingly,

we do not find that the sentencing entry is void because it

limits postrelease control to what is authorized under R.C. 6 2967.28 and, therefore, does not actually impose any term

of postrelease control.” Id. at ¶7.

{¶ 9} Likewise, in the instant case, the trial court limited postrelease

control to what is authorized under R.C. 2967.28 by stating in the sentencing

entry: “Postrelease control is a part of this prison sentence for the maximum

period allowed for the above felony (s) under R.C. 2967.28.” Because R.C.

2967.28 does not provide for postrelease control for special felonies, no

postrelease control was imposed. Thus, while the discussion of postrelease

control in the sentencing entry was incorrect, it did not render Evans’s

sentence void. Consequently our approach is to remand the matter for the

trial court to correct the sentencing entry to eliminate the postrelease control

language.

{¶ 10} We acknowledge that other districts have held that the

imposition of postrelease control as part of the special felony sentence voids

the entire sentence and have ordered the case remanded for resentencing.

State v. Crockett, 7th Dist. No. 07-MA-233,

; State v. Long, 1st

Dist. No. C-100285,

. However, given the Ohio Supreme

Court’s decision in State v. Fischer,

,

,

, these cases are no longer good law. The Fischer court held that

when postrelease control is not properly imposed only the postrelease control 7 part of the sentence is void, not the entire sentence. Accordingly, Evans’s

sole assigned error is overruled and judgment is affirmed.

{¶ 11} However, we remand the case to the trial court to correct the

journal entry to eliminate any reference to postrelease control.

Furthermore, it is ordered that appellee recover of appellant its costs

herein taxed.

This court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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, PRESIDING JUDGE

MARY J. BOYLE, J., and EILEEN A. GALLAGHER, J., CONCUR