[Cite as State v. Bryant,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102650

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MARVIN BRYANT DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-04-455771-A

BEFORE: Blackmon, J., E.T. Gallagher, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: September 10, 2015 FOR APPELLANT

Marvin Bryant, Pro Se A-480-285 Lorain Correctional Institute 2075 South Avon-Belden Road Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Eric L. Foster Mary McGrath Assistant County Prosecutors 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:

{¶1} In this accelerated appeal, appellant Marvin Bryant (“Bryant”) appeals the

trial court’s denial of his motion to terminate postrelease control and assigns the

following error for our review:

Appellant’s rights were violated when the trial judge refused to terminate the void sentence and postrelease control supervision in violation of Ohio Supreme Court mandates, Due Process and Equal Protection Clauses of the Fourteenth Amendments of the U.S. Constitutions and State v. Jordan, R.C. 2929.19, State v. Simpkins, and State v. Bezak.

{¶2} Having reviewed the record and pertinent law, we conclude that the trial

court erred by denying Bryant’s motion to terminate his postrelease control. The

apposite facts follow.

{¶3} On December 23, 2004, Bryant was sentenced to a total of nine years in

prison after being convicted by a jury for aggravated robbery, felonious assault, and

having a weapon while under disability. The trial court also imposed postrelease control

for five years.

{¶4} Bryant appealed; this court affirmed his convictions. See State v. Bryant,

8th Dist. Cuyahoga No. 85836,

. Bryant appealed the decision to the

Ohio Supreme Court, which reversed and remanded the matter for resentencing pursuant

to State v. Foster,

,

,

. {¶5} The trial court conducted a resentencing hearing on August 30, 2006. The

trial court again imposed a sentence of nine years in prison. The court then imposed

postrelease control in its sentencing entry as follows:

Postrelease control is part of this prison sentence for 5 years for the above felony(s) under R.C. 2967.28.

Mandatory 5 years postrelease control for Count 1; and up to 3 years postrelease control for Counts, 2, 3, and 4.

Journal Entry, August 30, 2006.

{¶6} On December 30, 2014, Bryant filed a “Motion to Correct Void

Sentence/Terminate Postrelease Control.” Bryant argued that the trial court failed to

state the consequences of violating postrelease control in the sentencing

entry. He contended that because he completed serving his prison term, his sentence was

void because the trial court was unable to resentence him. The trial court denied his

motion, stating that the “journal entry includes the advisement of postrelease control.”

{¶7} On January 15, 2015, Bryant filed another motion, captioned, “Motion to

Correct Void Sentence/Terminate Postrelease control.” Bryant again requested that the

trial court terminate his postrelease control due to the court’s failure to include in the

journal entry the consequences for violating postrelease control. The trial court again

denied the motion.

Postrelease Control

{¶8} In his sole assigned error, Bryant argues that the trial court erred by not

terminating his postrelease control. Specifically, Bryant argues that his postrelease

control is void because the trial court failed to advise in the sentencing entry the consequences for violating postrelease control. He contends that because he has

completed his sentence, the trial court can no longer resentence him to rectify the error.

We agree.

{¶9} This court in State v. Martin, 8th Dist. Cuyahoga No. 102336,

; State v Love, 8th Dist. Cuyahoga No. 102058,

, and

State v. Burroughs, 8th Dist. Cuyahoga

, addressed this

exact issue. We held that in situations where the trial court failed to set forth the

consequences for violating postrelease control in the sentencing entry and the defendant

completed his sentence, that the postrelease control is void and should be terminated.

We specifically held that merely referring to the statute in the sentencing entry was

insufficient to advise the defendant of the consequences.

{¶10} In so holding, we recognized, as the state argues, that other districts have

held otherwise. In State v. Darks, 10th Dist. Franklin No. 12AP-578,

;

State v. Ball, 5th Dist. Licking No. 13-CA-17,

, State v. Murray, 6th Dist.

Lucas No. L-10-1059,

, the courts held that mere reference to the statute

in the sentencing entry satisfied the notification requirements for imposing postrelease

control. This court has declined to adopt the law of our sister districts.

{¶11} Here, the sentencing entry does not set forth the consequences for violating

postrelease control and Bryant has completed his sentence. Pursuant to the precedent set

forth in Martin, Love, and Burroughs, the trial court erred by not terminating Bryant’s

postrelease control.1

1 To the extent that Bryant’s assigned error can be read to argue that his {¶12} The state contends we should presume regularity because Bryant failed to

present a transcript of the hearing. However, regardless if the trial court advised Bryant

of the consequences at the sentencing hearing, the consequences still must be set forth in

the journal entry. Martin; Love; Burroughs; State v. Lawson, 8th Dist. Cuyahoga No.

100626,

; State v. Pyne, 8th Dist. Cuyahoga No. 100580,

; State v. Elliott, 8th Dist. Cuyahoga No. 100404,

; State

v. Mills, 8th Dist. Cuyahoga No. 100417,

; State v. Middleton, 8th Dist.

Cuyahoga No. 99979,

; State v. Viccaro, 8th Dist. Cuyahoga No. 99816,

. Accordingly, Bryant’s sole assigned error is sustained.

{¶13} The judgment of the trial court is reversed, and the matter remanded to the

trial court with instructions to release Bryant from further postrelease control supervision.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas 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, JUDGE

entire conviction is void, the Ohio Supreme Court in State v. Fischer,

,

,

, ¶ 6 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.” (Emphasis sic.) Thus, only Bryant’s postrelease control is void, not his entire conviction. EILEEN T. GALLAGHER, P.J., CONCURS; SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY