[Cite as State v. Loyed,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101054

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

TYRONE LOYED

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART AND VACATED IN PART

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-02-430383-ZA

BEFORE: Stewart, J., Celebrezze, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: November 20, 2014 FOR APPELLANT

Tyrone Loyed, pro se Inmate No. 450-176 Marion Correctional Institution P.O. Box 57 Marion, OH 43302

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Amy Venesile Assistant County Prosecutor The Justice Center 1200 Ontario Street, 9th Floor Cleveland, OH 44113

MELODY J. STEWART, J.: {¶1} Defendant-appellant Tyrone Loyed, pro se, appeals the judgment of the Cuyahoga

County Court of Common Pleas denying his motion to vacate sentence. For the following

reasons, we affirm in part and reverse in part.

{¶2} On May 20, 2003, a jury convicted Loyed of aggravated murder in violation of R.C.

2903.01, enhanced with a firearm specification, and having a weapon while under disability in

violation of R.C. 2923.13. On May 27, 2003, the court sentenced Loyed to a three-year term of

imprisonment on the firearm specification, 20 years to life on the aggravated murder charge, and

11 months on the disability charge. The court ordered the firearm specification to be served

consecutively with, and prior to, the aggravated murder, and ordered the disability charge to be

served concurrent with the aggravated murder charge. At sentencing the court ordered

postrelease control for a term of up to and including five years. The sentencing entry ordered a

term of postrelease control for the “maximum period allowed for the felony(s) under R.C.

2967.28.”

{¶3} On June 25, 2003, Loyed filed a direct appeal and this court affirmed his

convictions. State v. Loyed, 8th Dist. Cuyahoga No. 83075,

. In his direct

appeal, Loyed’s only assignments of error related to an alleged improper jury instruction and an

alleged improper limitation of testimony at trial.

Loyed never raised any assignments of

error relating to his sentence or the impropriety of his conviction on the weapon disability charge.

Then, on December 12, 2013, appellant filed a motion captioned “Motion to Vacate

Sentence” with the trial court. In his motion, Loyed argued that the court should vacate his

sentence because the court improperly imposed postrelease control. His motion also argued that

the trial court erred in convicting him of the disability charge because his prior felony conviction that established the disability charge was also void due to the improper imposition of postrelease

control. On February 10, 2014, the trial court denied Loyed’s motion to vacate his sentence.

{¶4} In his first assigned error, Loyed offers two reasons why the imposition of

postrelease control was void in this case. First, Loyed argues that the court improperly imposed

postrelease control because he was not advised of the consequences of a postrelease control

violation — specifically he argues that he was not advised that he could be returned to prison for

up to one half of his original sentence for a violation of the terms of postrelease control.

{¶5} It is mandatory that every person ordered to serve a term of postrelease control be

notified of the consequences for a violation of postrelease control. State v. Bezak,

,

,

. However, the record reflects that Loyed was

advised at sentencing that he was subject to postrelease control and was advised of the potential

consequences for a violation of the terms of postrelease control. According to the sentencing

transcript the court stated:

And Mr. Loyed, the Post-Release Control consequences to the extent that if you ever are released, you will be on Post-Release Control for a period of up to five years. And it could have conditions attached. Any violation of any conditions that might be attached to Post-Release Control, could result in additional consequences up to and including re-indictment, and/or re-incarceration for up to one-half of the original sentence.

Therefore, we find no merit to Loyed’s argument that postrelease control was improperly

imposed because he was not notified of the consequences of a violation.

{¶6} Next, Loyed argues that the court improperly imposed postrelease control because it

did not distinguish between the aggravated murder charge and the disability charge when

attaching postrelease control to his sentence. Loyed argues that a conviction for aggravated

murder is not subject to postrelease control and therefore his sentence is void. {¶7} Aggravated murder is an unclassified felony that is not subject to postrelease

control. State v. Clark,

,

,

(stating

“[A]n individual sentenced for aggravated murder is not subject to post-release control because

that crime is an unclassified felony to which the postrelease control statute does not apply.”).

Therefore, if the trial court imposed postrelease control as part of the sentence for Loyed’s

aggravated murder conviction, that portion of the sentence would be void and subject to a proper

collateral attack. State v. Billiter,

,

,

,

citing State v. Fischer,

,

,

, paragraph two of

the syllabus.

{¶8} However, the crime of having a weapon while under disability is a classified

third-degree felony. R.C. 2923.13 (B). The postrelease control statute, R.C. 2967.28, requires

that an offender convicted of a third-degree felony be subject to a period of postrelease control

for up to three years after the offender’s release from prison, if the parole board determines that a

period of postrelease control is necessary for that offender. R.C. 2967.28(C). R.C. 2967.28(C)

has come to be known as discretionary postrelease control. See Watkins v. Collins,

,

,

, ¶ 44. Pursuant to R.C. 2967.28(C), a trial court

must inform a defendant at sentencing that discretionary postrelease control is part of his

sentence.

citing Woods v. Telb,

,

(2000).1

It is a requirement that the courts advise offenders that they will be subject to mandatory or 1

discretionary postrelease control, if either applies under R.C. 2967.28. The “discretionary” aspect of discretionary postrelease control refers to the parole board’s discretion in deciding the length of postrelease control, if the parole board determines that postrelease control is necessary for the offender. See R.C. 2967.28(C); Telb at 511–512. {¶9} Consequently, because the trial court was required to inform Loyed that

discretionary postrelease control was part of his sentence, and Loyed has failed to point to any

evidence in the record that shows that the trial court imposed postrelease control on the

aggravated murder conviction, we presume that the trial court imposed postrelease control on the

disability charge when it ordered the term of postrelease control. State v. Bonds, 8th Dist.

Cuyahoga No. 83866,

(explaining that the court presumes regularity when

the appellant does not provide the reviewing court with a record of facts, testimony, and evidence

supporting his assignment of error).

{¶10} However, we find that the trial court did err by imposing the wrong period of

postrelease control on the conviction for the disability charge. In State v. Fischer,

,

,

, the Ohio Supreme Court stated that postrelease

control is void if the court fails to follow the statutory mandates required to impose postrelease

control. Id. at ¶ 10, 26. R.C. 2967.28(C) mandates that a court advise an offender convicted of a

third-degree felony that he will be subject to a term of postrelease control up to three years.

Here, the trial court wrongly notified Loyed that he would be subject to postrelease control for up

to five years. Because the trial court failed to follow the requirements of the postrelease control

statute, the portion of Loyed’s sentence relating to postrelease control is void. See Fischer at

paragraphs one and two of the syllabus.

{¶11} Traditionally, we would remand to the trial court for resentencing when we find

that the court improperly imposed postrelease control. See id. at paragraph two of the syllabus.

However, where an appellant has already served his prison sentence on an offense, he may not be

resentenced to postrelease control on that offense, regardless of whether the offender is still in

prison for other offenses. State v. Holdcroft,

,

,

. Thus, because Loyed has already served his prison sentence on the disability charge,

we must vacate the order of postrelease control. If Loyed should ever be released from prison,

he will not be subject to postrelease control, rather he will be subject to parole supervision on the

aggravated murder charge.

{¶12} In his second assignment of error, Loyed argues that the trial court erred by

convicting him of the disability charge because his prior conviction for preparation of drugs for

sale under R.C. 2925.07, that was the basis for the disability charge, was void due to the court’s

failure to impose postrelease control in that case. We disagree.

{¶13} Even assuming, without deciding, that the court failed to properly impose

postrelease control in Loyed’s drug case, this failure would have no impact on the validity of his

later disability conviction. Loyed argues that because a conviction is the combination of a guilty

finding and a sentence, see State v. Damron,

,

,

, ¶ 17, an invalid sentence renders his conviction void. While the proposition of law is

correct, what Loyed fails to understand is that the improper imposition of postrelease control

does not render a sentence invalid. In Fischer, the Ohio Supreme Court explained, in no

uncertain terms, that the failure to advise a defendant of postrelease control at sentencing or the

failure to properly impose postrelease control in the journal entry, does not render a sentence

void. See Fischer,

,

,

, at ¶ 9; see also State v.

Bradford, 8th Dist. Cuyahoga No. 97283,

; State v. Woods, 8th Dist.

Cuyahoga No. 96487,

. Rather, only that portion of the sentence

improperly imposing postrelease control is void. Fischer at ¶ 9. While the void portion of the

sentence relating to postrelease control may be reviewed at any time on direct appeal or by collateral attack, the doctrine of res judicata applies to the other aspects of a conviction, including

the guilt phase and the lawful elements of the sentence. Id. at ¶ 40.

{¶14} Loyed never challenged the propriety of his prior drug conviction when he had the

opportunity to do so on direct appeal, thus his drug conviction remains valid. Because Loyed’s

drug conviction was valid at the time he committed the aggravated murder, the trial court did not

err by refusing to vacate his disability conviction. Loyed’s second assignment of error is

overruled.

{¶15} Loyed’s convictions are affirmed, but the portion of his sentence related to

postrelease control is vacated.

It is ordered that appellant and appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga County

Court of Common Pleas to carry this judgment into execution. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

MELODY J. STEWART, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and EILEEN T. GALLAGHER, J., CONCUR