[Cite as State v. Peterson,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96958

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DAMIEN L. PETERSON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-388072

BEFORE: Blackmon, A.J., Cooney, J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: January 12, 2012 2

APPELLANT, PRO SE

Damien Peterson Inmate No. 503-884 Marion Correctional Institution 940 Marion Williamsport Road P.O. Box 57 Marion, Ohio 43302

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

Katherine Mullin Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113

PATRICIA ANN BLACKMON, A.J.:

{¶ 1} In this accelerated appeal, appellant Damien Peterson, pro se, appeals the

trial court’s denial of his motion to vacate void sentencing journal entry and assigns the

following error for our review:

“I. The trial court erred when denying appellant’s motion to vacate void sentencing / judgment of conviction.”

{¶ 2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow. 3

{¶ 3} On May 16, 2001, a jury found Peterson guilty of aggravated robbery and

felonious assault. The trial court imposed a four-year term of imprisonment for each

crime and ordered Peterson to serve the terms concurrently. We affirmed Peterson’s

conviction in State v. Peterson, Cuyahoga App. No. 80606,

. Peterson

completed the term of imprisonment, was released, re-offended, and is currently

incarcerated on a new case, which includes a repeat violent offender specification.

{¶ 4} On November12, 2010, presumably to avoid the additional penalty on the

new case, Peterson filed a motion to vacate his original sentence on the grounds that it

was void because of the trial court’s failure to properly advise or impose postrelease

control. The state opposed the motion as an untimely petition for postconviction relief.

On May 25, 2011, the trial court denied Peterson’s motion to vacate the original sentence.

This appeal followed.

Motion to Vacate Void Sentence

{¶ 5} In his sole assigned error, Peterson argues the trial court erred when it

denied his motion to vacate his sentence and conviction. We disagree.

{¶ 6} If a defendant is subject to postrelease control, the trial court must notify

him of postrelease control at the sentencing hearing, and must include the postrelease

control terms in the sentence, or the sentence is void. State v. Bezak,

,

,

, at the syllabus; State v. Jordan,

,

,

. 4

{¶ 7} Regarding Peterson’s challenge to the trial court’s advisement of

postrelease control during his sentencing hearing, we note that we have not been provided

with a transcript of the sentencing hearing. In Ohio, the appellant has the duty to file

the transcript or such parts of the transcript that are necessary for evaluating the lower

court’s decision. See App.R. 9(B); Knapp v. Edwards Laboratories (1980),

,

. The failure to file the transcript prevents this court from

reviewing the appellant’s assignments of error. State v. Gresham, Cuyahoga App. No.

96735,

, citing State v. Turner, Cuyahoga App. No. 91695,

, appeal not allowed,

,

,

.

{¶ 8} Absent certification of an adequate record, a reviewing court presumes

regularity of the proceedings and affirms the judgment of the trial court. In re B.B.,

Cuyahoga App. No. 96262,

, citing Ostrander v. Parker–Fallis

Insulation Co., Inc. (1972),

,

. See, also, State v.

Rembert, Cuyahoga App. No. 96536,

.

{¶ 9} Regarding Peterson’s additional claim that in the sentencing journal entry

the trial court improperly sentenced him to postrelease control for the “maximum period

allowed,” but failed to set forth the mandatory nature, the number of years, and the

consequences of a violation, we note that in State v. Bailey, Cuyahoga App. No. 93994,

, this court considered a journal entry of sentence that stated “post release 5

control is a part of this prison sentence for the maximum period allowed for the above

felony(s) under R.C. 2967.28.” This court determined that this language was sufficient,

where the oral notifications were proper.

{¶ 10} It is well settled that once the sentence for the offense that carries

postrelease control has been served, the court can no longer correct sentencing errors and

impose postrelease control at resentencing. Bezak. The Bezak court explained:

“However, in this case, Bezak has already served the prison term ordered by the trial court, and therefore he cannot be subject to resentencing in order to correct the trial court’s failure to impose postrelease control at Bezak’s original sentencing hearing. In order that its record may be complete, the trial court is instructed to note on the record of Bezak’s sentence that because he has completed his sentence, Bezak will not be subject to resentencing pursuant to our decision.” Bezak at ¶18.

{¶ 11} Similarly, in State v. Cobb, Cuyahoga App. No. 93404,

,

this court noted that it is the expiration of the sentence for which postrelease control is

applicable that determines whether a court may correct a sentencing error and impose

postrelease control at resentencing.

{¶ 12} Nonetheless, Peterson urges us to vacate his entire sentence and conviction

because he can no longer be resentenced. However, in State v. Fischer,

,

,

, the Ohio Supreme Court 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. 6

{¶ 13} Hence, only the void portion of Peterson’s sentence is vacated and not the

whole sentence as he urges. Given that Peterson has completed his sentence for

aggravated robbery and felonious assault, he cannot be subject to resentencing in order to

correct the trial court’s failure to impose postrelease control at the original sentencing

hearing. Bezak.

{¶ 14} The trial court properly denied Peterson’s motion to vacate the sentencing

journal entry and judgment of conviction. Accordingly, we overrule the sole assigned

error. Nonetheless, in order that its record may be complete, the trial court is instructed

to note on the record of Peterson’s sentence that because he

{¶ 15} has completed the prison term for the aggravated robbery and felonious

assault charges, he will not be subject to postrelease control pursuant to our decision. See

State v. Brown, Cuyahoga App. No. 95086,

.

Judgment affirmed.

It is ordered that appellee recover of appellant its costs herein taxed.

The 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. 7

PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

COLLEEN CONWAY COONEY, J., and SEAN C. GALLAGHER, J., CONCUR