[Cite as State v. Ramey,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 24944 Plaintiff-Appellee : : Trial Court Case No. 99-CR-4093 v. : : CARL LEE RAMEY : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 31st day of August, 2012.

...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

DAWN S. GARRETT, Atty. Reg. #0055565, 7865 Paragon Road, Suite 107, Centerville, Ohio 45459 Attorney for Defendant-Appellant

.............

FAIN, J.

{¶ 1} Defendant-appellant Carl Lee Ramey appeals from his sentence for Murder,

Felonious Assault, and Having Weapons Under a Disability. He contends that the trial court 2

erred by specifying a three-year period of possible post-release control for the Having

Weapons Under a Disability offense, a felony of the fifth degree. He contends that the trial

court should have specified a possible period of post-release control of up to three years for

this offense.

{¶ 2} We agree with Ramey. His sentence for Having Weapons Under a Disability

is modified to provide for a possible period of post-release control of up to three years. As so

modified, the judgment of the trial court is Affirmed.

I. The Course of Proceedings

{¶ 3} In 2000, following a jury trial, Ramey was convicted of Murder, in violation

of R.C. 2903.02(B), an unclassified felony, with a three-year firearm specification; Felonious

Assault, in violation of R.C. 2903.11(A)(2), a felony of the second degree; and Having

Weapons Under a Disability, in violation of R.C. 2923.13(A)(3), a felony of the fifth degree.

Ramey was sentenced to 15 years to life for Murder, eight years for Felonious Assault, twelve

months for Having Weapons Under a Disability, and three years for the firearm specification,

with all sentences to be served consecutively, for a total sentence of 27 years to life. He

appealed. We affirmed. State v. Ramey, 2d Dist. Montgomery No. 18450,

(June 15, 2001).

{¶ 4} The original sentencing entry did not specify the period of his post-release

control, and did not specify the manner of his conviction. In April, 2011, the trial court filed

a nunc pro tunc entry correcting the sentencing entry by specifying the manner of Ramey’s

conviction, but this entry still did not specify the period of his post-release control. 3

{¶ 5} On October 21, 2011, the trial court again amended the sentencing entry to

provide that: (1) Ramey was not eligible for post-release control as part of his sentence for

Murder; (2) Ramey was subject to post-release control for a period of three years as part of his

sentence for Felonious Assault; and (3) Ramey could be subject to post-release control, in the

discretion of the Parole Board, for a period of three years as part of his sentence for Having

Weapons Under a Disability.

{¶ 6} From the judgment entry of October 21, 2011, Ramey appeals.

II. The Optional Period of Post-Release Control Imposed

as Part of Ramey’s Sentence for Having Weapons Under a Disability

Should Be Up To Three Years, Not Three Years

{¶ 7} Ramey’s sole assignment of error is as follows:

THE TRIAL COURT ERRED IN IMPOSING THE TERMS OF

POST-RELEASE CONTROL AS IT INDICATED THE TERM ON A FIFTH

DEGREE FELONY MAY BE FOR A PERIOD OF THREE YEARS, WHEN THE

STATUTE PROVIDES THAT IT [MAY] BE “UP TO” A PERIOD OF THREE

YEARS BUT COULD BE LESS.

{¶ 8} Ramey contends that the period of post-release control to which he could be

subject, at the option of the Ohio Adult Parole Authority, as part of his sentence for Having

Weapons Under a Disability was a period of up to three years, not three years, as specified by

the trial court in its sentencing entry. We agree.

{¶ 9} The period of optional post-release control to which an offender is subject as 4

part of a sentence for a felony of the fifth degree is a period of up to three years. R.C.

2967.28(C).

{¶ 10} The State relies upon State v. Sulek, 2d Dist. Greene No. 09CA75,

. In that case, a defendant was convicted of several felony offenses, some of

which were merged for sentencing purposes. Surviving were two, six-year sentences for

second-degree felony offenses, and one, one-year sentence for a fourth-degree felony offense.

The trial court notified the defendant in that case, as part of the judgment entry, that

“post-release control is mandatory in this case up to a maximum of five years * * * .” Id., ¶

3. We held that this was sufficient, because although the defendant in that case was subject to

post-release control as a result of multiple offenses, he could, in fact, be subject to no more

than one period of post-release control; therefore, notification that the defendant was subject

to post-release control for a period of five years, the longest of the periods of post-release

control to which he was subject, was not misleading – the lesser period of post-release control

pertaining to the fourth-degree felony offense in that case was wholly subsumed within the

five-year periods of post-release control pertaining to the second-degree felony offenses. Id.,

¶ 23.

{¶ 11} But in Sulek, at ¶ 24, we distinguished State v. Reznickchek, 6th Dist. Lucas

Nos. 1426 and 1427,

:

The problem in Reznickcheck was not that the three-year terms of mandatory

post-release control the court imposed for the two second-degree felonies did not encompass

the discretionary term of up to three years available for the single third-degree felony. The

problem was that the notification was, by its terms, expressly limited to the two second-degree 5

felonies; expressio unius, expression of one thing suggests the exclusion of others.

Therefore, per [State v.] Bezak, [

,

,

], the

sentence that was imposed on the third-degree felony was void, and resentencing “for that

particular offense” was required. We do not agree with the decision in Reznickcheck that the

holding in Bezak required reversal of all three sentences the court had imposed.

{¶ 12} We then concluded in State v. Sulek that: “The trial court was not required to

separately and expressly notify Defendant of the terms of post-release control applicable to each of

the three offenses for which prison terms were imposed.” Id., ¶ 25. But in the case before us, the

trial court did, in fact, provide notification in its judgment entry of the terms of post-release control

pertaining to each of the two offenses for which determinate prison sentences were imposed. The

problem is that it got one of them wrong. Although the trial court correctly specified a mandatory

three-year period of post-release control for Felonious Assault, a second-degree felony, and also

correctly specified that post-release control would be at the discretion of the Ohio Adult Parole

Authority for the fifth-degree felony, it incorrectly specified that the period of post-release control for

the fifth-degree felony was three years, when it is, in fact, up to three years.

{¶ 13} Thus, unlike in Sulek, the trial court in this case affirmatively misstated the period of

post-release control pertaining to the sentence for Having Weapons While Under a Disability.

Admittedly, this error is likely to be academic, in view of Ramey’s life sentence for Murder and

three-year period of post-release control for Felonious Assault. But should both of those convictions

be overturned, as a result of subsequent Ohio or federal judicial proceedings, or as a result of a

gubernatorial pardon, the trial court’s error could, in theory, become significant.

{¶ 14} Ramey’s sole assignment of error is sustained. 6

III. Conclusion

{¶ 15} Ramey’s sole assignment of error having been sustained, the judgment of the

trial court is Modified by providing that the possible period of post-release control pertaining

to Ramey’s twelve-month sentence for Having Weapons While Under a Disability is “up to

three years,” not “three years,” as specified in the judgment entry. As so modified, the

judgment entry of October 21, 2011, from which this appeal is taken, is Affirmed.

.............

FROELICH and RICE, JJ., concur.

(Hon. Cynthia W. Rice, Eleventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Mathias H. Heck Michele D. Phipps Dawn S Garrett Hon. Mary L. Wiseman