[Cite as State v. Brister,

.]

IN THE COURT OF APPEALS FIFTH APPELLATE DISTRICT GUERNSEY COUNTY, OHIO

STATE OF OHIO : JUDGES: : Plaintiff-Appellee : : Hon., Patricia A. Delaney, J. : Hon., W. Scott Gwin, P.J -vs- : Hon., William B. Hoffman, J. : DARRELL BRISTER : CASE NO. 13 CA 21 : Defendant-Appellant : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Common Pleas Court, Case No. 04-CR-05

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 17, 2013

APPEARANCES:

For Appellant For Appellee

Lindsey K. Donehue No Appearance Atty. Reg. No. 0082406 P.O. Box 464 Cambridge, Ohio 43725

and

Darrell Brister, Pro Se G.C.I (468-169) 2500 South Avon-Belden Rd. Grafton, Ohio 44044 Guernsey County, Case No. 13 CA 21 2

Delaney, J.,

{¶1} Appellant, Darrell Brister, appeals from two trial court entries both dated

May 15, 2013. On April 23, 2013, Appellant filed a “Motion to Correct Void Sentence”

with the trial court. In response to the motion, the trial court issued two entries. One of

the entries grants in part and denies in part Appellant’s “Motion to Correct Void

Sentence.” The second entry is a “Nunc Pro Tunc Judgment Entry of Sentence.”

{¶2} Appellant was found guilty of murder with a firearm specification by a jury

in 2004. He appealed his conviction and sentence to this Court which was affirmed by

this Court in 2005.

{¶3} When Appellant was sentenced in 2004, the trial court imposed a

mandatory term of post release control. In his “Motion to Correct Void Sentence,”

Appellant argued the trial court erred in imposing a term of post release control because

Appellant had been convicted of murder which is an unclassified felony to which post

release control is inapplicable.

{¶4} The trial court agreed in part with Appellant and issued a “Nunc Pro

Tunc” sentencing entry deleting the reference to post release control. The trial court

denied Appellant’s request for a de novo sentencing hearing. A timely notice of appeal

was filed from the May 15, 2013 entries.

{¶5} Counsel for Appellant has filed a motion to withdraw and brief pursuant

to Anders v. California,

,

,

(1967). In Anders,

the United States Supreme Court held if, after a conscientious examination of the

record, a defendant’s counsel concludes the case is wholly frivolous, then he should Guernsey County, Case No. 13 CA 21 3

so advise the court and request permission to withdraw.

. Counsel must

accompany his request with a brief identifying anything in the record that could arguably

support his client’s appeal.

Counsel also must: (1) furnish his client with a copy of

the brief and request to withdraw; and, (2) allow his client sufficient time to raise any

matters that the client chooses.

Once the defendant’s counsel satisfies these

requirements, the appellate court must fully examine the proceedings below to

determine if any arguably meritorious issues exist. If the appellate court also determines

that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal without violating constitutional requirements, or may proceed to a

decision on the merits if state law so requires.

{¶6} Counsel for Appellant has filed brief with one proposed assignment of

error. Appellant has also filed a pro se brief raising an additional assignment of error.

The assignments of error are as follows:

I.

{¶7} “THE TRIAL COURT ERRED WHEN IT RESENTENCED APPELLANT”

II.

{¶8} “THE TRIAL COURT IMPROPERLY REMOVED POST-RELEASE

CONTROL WITHOUT THE DEFENDANT BEING PRESENT, IN VIOLATION OF R.C.

2929.121, R.C. 2967.28, CRIM. R. 36, AND CRIM. R. 43”

{¶9} Because they are related, we will address both assignments of error

together. Both counsel and Appellant argue Appellant’s sentence should have been

vacated in its entirety. Appellant further argues he should have been physically present

to receive a new sentence rather than the trial court issuing a nunc pro tunc entry. Guernsey County, Case No. 13 CA 21 4

Finally, counsel for Appellant argues Appellant should have received a new trial after

the sentence was vacated.

{¶10} The Ohio Supreme Court has explained when a problem exists in a

sentencing entry related to post release control, “It is only the post release-control

aspect of the sentence that is void and that must be rectified.” State v. Fischer,

,

,

.

{¶11} Appellant’s sole basis for suggesting his sentence was void was the fact

that post release control was improperly imposed for Appellant’s murder conviction and

sentence. The only issue presented to the trial court was the contention that post

release control is inapplicable to a murder conviction because it is an unclassified

felony. “[A]n individual sentenced for aggravated murder . . . is not subject to post

release control, because that crime is an unclassified felony to which the post release-

control statute does not apply. R.C. 2967.28.” State v. Clark,

, 2008-

Ohio-3748,

.

{¶12} The trial court did err in 2004 when it included post release control as a

term of Appellant’s sentence. Because the only alleged error in the sentence is post

release control, we find only the post release control portion of Appellant’s 2004

sentence was subject to change.

{¶13} The question before us is whether the trial court was required to conduct

a new sentencing hearing to remove the improperly imposed term of post release

control. Other courts have held a new hearing is unnecessary.

{¶14} In a case similar to the case at bar, the Tenth District explained, “It is not

disputed that appellant was convicted of murder, which is an unclassified felony to Guernsey County, Case No. 13 CA 21 5

which the post-release control statute does not apply.

,

2008–Ohio–3748, ¶ 36; State v. Gripper, 10th Dist. No. 10AP–1186, 2011–Ohio–3656,

¶ 10. Accordingly, the inclusion of post-release control language in appellant's

sentencing entry was in error. It is appellant's position that this renders his entire

sentence void and that a de novo sentencing hearing is required to correct this error.

We disagree.

***

{¶15} In the case sub judice, the trial court included post-release control

language in appellant's sentence even though appellant was convicted of murder, an

unclassified felony. Pursuant to Fischer, and also Evans and Lawrence, it is clear that

this does not render appellant's entire sentence void, nor does it require a de novo

sentencing hearing. Moreover, the record reflects that the superfluous post-release

control language has been removed from the sentencing entry pursuant to the judgment

entry filed on March 17, 2011.” State v. Silguero, 10th Dist. Franklin No. 11AP-274,

.

{¶16} The legislature has provided in R.C. 2929.191 an avenue to correct post

release control in certain situations such as where the sentencing entry conflicts with

the oral pronouncement or where the term of post release control was omitted. The

statute, however, does not address a scenario where the term of post release control

was improperly included.

{¶17} In approving the use of a nunc pro tunc entry to correct the erroneous

inclusion of post release control, the Eighth District held, “[Th]e instant matter presents

none of the three scenarios outlined in R.C. 2929.191(A) or (B), set forth above. The Guernsey County, Case No. 13 CA 21 6

trial court did not fail to notify defendant that he would be subject to post-release control,

did not fail to notify him that the parole board could impose a prison term for a violation

of post release control, and did not fail to have statutorily mandated notices

incorporated into his sentencing entries. R.C. 2929.191(A) and (B). We therefore

conclude that R.C. 2929.191 and Singleton are inapplicable herein.

{¶18} Further, with regard to whether the trial court employed a correct

procedure in entering a nunc pro tunc deletion of the postrelease control provision, we

note that a trial court may use a nunc pro tunc entry to correct mistakes in judgments,

orders, and other parts of the record so the record speaks the truth. State v. Greulich,

,

(9th Dist. 1988).” State v. Rolling 8th Dist.

Cuyahoga No. 95473,

.

{¶19} Based upon the foregoing, we find the trial court did not err in issuing a

nunc pro tunc entry removing the improperly imposed term of post release control.

Finally, there is no authority for counsel’s bare assertion that a new trial is required

when a term of post release control has been improperly imposed. Guernsey County, Case No. 13 CA 21 7

{¶20} For these reasons, we grant counsel’s motion to withdraw and overrule

both assignments of error. The judgment of the Guernsey County Court of Common

Pleas is affirmed.

By Delaney, P.J.

Gwin, J. and

Hoffman, J. concur

______________________________ HON. PATRICIA A. DELANEY

______________________________ HON. W. SCOTT GWIN

______________________________ HON. WILLIAM B. HOFFMAN [Cite as State v. Brister,

.]

IN THE COURT OF APPEALS FIFTH APPELLATE DISTRICT GUERNSEY COUNTY, OHIO

STATE OF OHIO : : CASE NO. 13 CA 21 Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : DARRELL BRISTER : : Defendant-Appellant :

For the reasons stated in our accompanying Memorandum-Opinion, the

Motion to withdraw of counsel is granted, and the judgment of the Common

Pleas Court of Guernsey County, Ohio is affirmed.

Costs to Appellant.

____________________________ HON. PATRICIA. DELANEY

____________________________ HON. W. SCOTT GWIN

____________________________ HON. WILLIAM B. HOFFMAN