[Cite as State v. Cockrell,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104207

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DAVONTE COCKRELL DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-10-541417-B and CR-15-600493-B

BEFORE: Keough, A.J., Kilbane, J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: April 13, 2017 ATTORNEY FOR APPELLANT

Carmen P. Naso Milton A. Kramer Law Clinic 11075 East Boulevard Cleveland, Ohio 44106

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor By: Carl Mazzone Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, A.J.:

{¶1} Defendant-appellant, Davonte Cockrell, appeals the sentence imposed under

two separate cases, but ordered to run consecutively. For the reasons that follow, we

reverse and remand.

{¶2} In October 2010, Cockrell pled guilty in Cuyahoga C.P. No. CR-10-541417 to

aggravated robbery and burglary and was sentenced to four years in prison. At

sentencing, the court advised him that he was subject to five years of mandatory

postrelease control on the first-degree felony aggravated robbery offense, and

three-year-discretionary postrelease control supervision for the burglary offense. The

sentencing journal entry, however, provided that postrelease control was part of Cockrell’s

sentence for only a mandatory three years. No appeal was taken from this entry of

conviction. In August 2014, Cockrell was released from prison after serving his four-year

prison sentence; he was subsequently placed on postrelease control.

{¶3} In November 2015, Cockrell was named in a three-count indictment under

Cuyahoga C.P. No. CR-16-104207 charging him with weapon offenses. In December, he

pled guilty to having a weapon while under disability. During the plea, Cockrell admitted

that he was on postrelease control related to the 2010 convictions under Case No.

CR-10-541417. At sentencing, the trial court ordered Cockrell to serve 30 months in

prison for the weapons offense. Additionally, the court sentenced Cockrell to prison for

the remaining postrelease control term to run consecutively to the weapons offense.

{¶4} Cockrell now appeals, raising two assignments of error. {¶5} In his first assignment of error, Cockrell contends that the sentence imposed in

Case No. CR-10-541417 failed to properly include the statutorily mandated term of

postrelease control and is therefore void and not enforceable in the new felony case of

Case No. CR-16-600493. We agree.

{¶6} A sentence that does not include the statutorily mandated term of postrelease

control is void, not precluded from appellate review by principles of res judicata, and may

be reviewed at any time, on direct appeal or by collateral attack. State v. Fischer,

,

,

, paragraph one of the syllabus.

{¶7} The record reflects that Cockrell was orally advised at the time of his plea and

sentencing in 2010 that he would be subject to a mandatory postrelease control period of

five years control following his four-year prison sentence. However, the sentencing

journal entry stated that Cockrell was subject to a mandatory three-year period of

postrelease control.

{¶8} The state contends that despite this error in the original sentencing entry,

pursuant to R.C. 2967.28(B), Cockrell is still subject to the mandatory five-year period of

postrelease control pursuant to R.C. 2967.28(B) because the imposition of postrelease

control arises by operation of law and Cockrell was properly notified of the consequences

for violating postrelease control. The language the state relies on is found in R.C.

2967.28(B), which provides:

If a court imposes a sentence including a prison term of a type described in this division on or after July 11, 2006, the failure of a sentencing court to notify the offender pursuant to division (B)(2)(c) of section 2929.19 of the Revised Code of this requirement or to include in the judgment of conviction entered on the journal a statement that the offender’s sentence includes this requirement does not negate, limit, or otherwise affect the mandatory period of supervision that is required for the offender under this division. Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a court imposed a sentence including a prison term of a type described in this division and failed to notify the offender pursuant to division (B)(2)(c) of section 2929.19 of the Revised Code regarding post-release control or to include in the judgment of conviction entered on the journal or in the sentence pursuant to division (D)(1) of section 2929.14 of the Revised Code a statement regarding post-release control.

(Emphasis added.)

{¶9} While it is true that the statute contains this language, it appears that the Ohio

Supreme Court rejected this “arises by operation of law language” and argument in State v.

Singleton,

,

,

.1

{¶10} The court considered Singleton subsequent to the enactment of Am.Sub.H.B.

137, which amended R.C. 2967.28 by adding the above-stated language, and the

enactment of R.C. 2929.191, which provided a mechanism for courts to remedy any

defects in the imposition of postrelease control. The issue before the court was the

retrospective application of R.C. 2929.191. However, the court sua sponte also addressed

the prospective application of R.C. 2929.191.

{¶11} In addressing the retrospective and prospective applications, the court

declared that in the absence of a statutory remedy, “a sentence is void when the trial court

fails to impose a statutorily mandated term of postrelease control.” Id. at ¶ 18, 25, 36; see

See also State v. Bloomer,

,

,

, ¶ 72 1

(rejecting identical language in R.C. 2929.14(D), stating “nothing in that division, however, provides that the executive branch may impose postrelease control if the sentencing court has not ordered it”). also State v. Williams, Slip Opinion No.

(reiterating the Singleton

declaration).

{¶12} The court held that retrospective application of R.C. 2929.191 was

ineffective because a sentence imposing postrelease control without the statutorily

mandated notices at the sentencing hearing and in the sentencing entry is a nullity, and

prior to the enactment of R.C. 2929.191 there was “no existing judgment for a sentencing

court to correct.” Id. at ¶ 25-26. Consequently, the court concluded that for sentences

imposed prior to July 11, 2006, courts must correct postrelease control infirmities through

the de novo sentencing procedure articulated in prior case law. Id. at ¶ 26.

{¶13} However, in addressing the prospective application of R.C. 2929.191, the

court concluded that “[f]or criminal sentences imposed on or after July 11, 2006, in which

a trial court failed to properly impose postrelease control, trial courts shall apply the

procedures set forth in R.C. 2929.191.” Singleton at paragraph two of the syllabus.

{¶14} The Singleton majority explained:

[W]ith R.C. 2929.191, the General Assembly has now provided a statutory remedy to correct a failure to properly impose postrelease control. Effective July 11, 2006, R.C. 2929.191 establishes a procedure to remedy a sentence that fails to properly impose a term of postrelease control. It applies to offenders who have not yet been released from prison and who fall into at least one of three categories: those who did not receive notice at the sentencing hearing that they would be subject to postrelease control, those who did not receive notice that the parole board could impose a prison term for a violation of postrelease control, or those who did not have both of these statutorily mandated notices incorporated into their sentencing entries. R.C. 2929.191(A) and (B).

(Emphasis added). Id. at ¶ 23. {¶15} However, the Singleton minority (which is the position the state takes in

this case) disagreed with the majority’s conclusion, maintaining that the intent of the

General Assembly in amending R.C. 2967.28 and enacting R.C. 2929.191 was to provide a

vehicle to correct past mistakes and to make prospective postrelease control sentencing

errors “basically irrelevant.” Id. at ¶ 49 (Pfeifer, J., concurring in part and dissenting in

part.) “All of these amendments attempt to make prospective mistakes nonproblematic

and employ R.C. 2929.191 to address past errors. For the General Assembly, the

prospective application of R.C. 2929.191 was never a consideration.” Id. at ¶ 53.

{¶16} Therefore, despite the language contained in R.C. 2967.28, the Ohio

Supreme Court has made it is clear that postrelease control does not arise by operation of

law and its imposition will be rendered void unless the trial court imposes the statutorily

mandated term, advises the defendant of that term at the time of sentencing, advises the

defendant of the consequences of violating postrelease control at sentencing, and

incorporates in the court’s sentencing journal entry that the notifications were given. See

Singleton,

,

,

; State v. Qualls,

,

,

; Woods v. Telb,

,

,

; State v. Jordan,

,

,

; State v. Bloomer,

,

,

. Accordingly, the state’s reliance on the “shielding” language in R.C. 2967.28 is

misplaced. {¶17} In this case, because Cockrell’s 2010 sentencing entry incorrectly stated that

postrelease control was mandatory for three years, instead of the statutorily required

mandatory five years, his sentence as it pertained to the imposition of postrelease control

was void. The problem now for the state is that Cockrell has served his prison sentence

from which postrelease control was imposed, and according to R.C. 2929.191(A)(1) and

controlling precedent, the trial court cannot now correct the journal entry to remedy its

error.

{¶18} R.C. 2929.191 states that a sentencing court can remedy its error in

improperly imposing postrelease control, but any correction must occur prior to the

offender being released from prison. See also Singleton at ¶ 23.

{¶19} Furthermore, it has long been held that after an offender has completed the

prison term imposed in his original sentence, the offender cannot be subject to another

sentencing to correct a sentencing court’s flawed imposition of postrelease control.

Qualls,

,

,

, at ¶ 16 (“unless a

sentencing entry that did not include notification of the imposition of postrelease control is

corrected before the defendant completed the prison term for the offense for which

postrelease control was to be imposed, postrelease control cannot be imposed.”); Singleton

at ¶ 20; see also State v. Douse, 8th Dist. Cuyahoga No. 98249,

, State v.

Breeden, 6th Dist. Lucas No. L-11-1122,

; State v. Lindsay, 3d Dist.

Logan No. 8-06-24,

. {¶20} Accordingly, because Cockrell’s original 2010 sentencing journal entry failed

to correctly advise him of the statutorily mandated period of postrelease control, the

judgment entry as it pertains to postrelease control was void. Additionally, because

Cockrell has completed his prison sentence from which postrelease control was ordered

and his sentencing entry was not corrected prior to his release from prison, Cockrell can no

longer be resentenced in any manner and he cannot be punished for a violation of the

terms and conditions of the void postrelease control.

{¶21} Cockrell’s first assignment of error is sustained. Having sustained the first

assignment of error challenging the sentence imposed in CR-10-541417, Cockrell’s second

assignment of error challenging the consecutive nature of that sentence is thereby rendered

moot.

{¶22} Judgment reversed and remanded for the trial court to issue a new judgment

entry vacating the sentence imposed in CR-10-541417.

It is ordered that appellant recover from appellee 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 common

pleas 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.

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE MARY EILEEN KILBANE, J., and SEAN C. GALLAGHER, J., CONCUR