[Cite as State v. Ferris,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

STATE OF OHIO, : : Case No. 16CA27 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY CHARLES A. FERRIS, : : Defendant-Appellant. : Released: 06/23/17 _____________________________________________________________ APPEARANCES:

Gene Meadows, Portsmouth, Ohio, for Appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Jeffrey M. Smith, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee. _____________________________________________________________

McFarland, J.

{¶1} Charles Ferris appeals the judgment of the Lawrence County

Court of Common Pleas convicting him of two counts of rape in violation of

R.C. 2907.02(A)(1)(b), with specifications, both first degree felonies, and

sentencing him to two terms of twenty-five years to life in prison, to be

served concurrently, along with five years of mandatory post-release control.

On appeal, Appellant contends that the trial court erred in failing to properly

advise him of post-release control, which he claims renders his conviction

partially void. Because the record confirms the trial court failed to advise Lawrence App. No. 16CA27 2

Appellant during the sentencing hearing that he would be subject to a

mandatory five-year period of post-release control, the post-release control

portion of Appellant’s sentence is void. Accordingly, the post-release

control portion of Appellant’s sentence must be set aside and this matter

must be remanded for resentencing as to post-release control.

FACTS

{¶2} The parties agree on the following facts:

“On or about June 10, 2016 a complaint [w]as made that

the Defendant-Appellant had been molesting a 9 year old

female for several years. The Lawrence County Sheriff’s

Office investigated the complaint and detained the Defendant-

Appellant, Charles Ferris.

The Defendant-Appellant was interviewed by deputies

from the Lawrence county Sheriff’s Office. During an initial

interview that was audio recorded the Defendant-Appellant

made admissions by nonverbal communications with the

deputy. The deputies later conducted an interview that [w]as

both video and audio recorded. The Defendant-Appellant

admitted to having ‘play time’ with the alleged victim and that

it had been ongoing since 2008. Lawrence App. No. 16CA27 3

On or about June 29, 2016 the Defendant was indicted

for fifty-four counts of rape in violation of RC 2907.02, a

felony of the first degree. On or about November 3, 2016, the

Defendant was sentenced on two counts of rape, Count 1 and

Count 2 of the indictment, a violation of RC 2907.02. All other

counts of the indictment were dismissed.

The Defendant was sentenced to 25 years to life on each

count to run concurrently. Although the notice of post release

control is stated in the Judgment Entry filed herein on

November 8, 2016, there is no mention of the post release

control [in] the sentencing hearing held on November 3, 2016.

A timely notice of appeal was filed.”

{¶3} Although the State agrees with this recitation of the facts, it

points out that “upon pleading guilty to the amended indictment under this

negotiated plea and sentence, the defendant was notified by the Court that he

would be subject to a mandatory five year post release control.” In his

timely appeal, Appellant sets forth a single assignment of error for our

review.

ASSIGNMENT OF ERROR

“I. THE TRIAL COURT ERRED IN FAILING TO PROPERLY ADVISE DEFENDANT-APPELLANT OF POST RELEASE Lawrence App. No. 16CA27 4

CONTROL RENDERING DEFENDANT-APPELLANT’S CONVICTION PARTIALLY VOID.”

LEGAL ANALYSIS

{¶4} In his sole assignment of error, Appellant contends the trial

court erred by failing to properly advise him of post-release control, an error

which he claims rendered his convictions partially void.1 Although the State

points out that Appellant was notified of post-release control during his guilty

plea hearing, it concedes that the trial court failed to advise Appellant of post-

release control during the sentencing hearing.

{¶5} “Generally, when reviewing felony sentences, we apply the

standard of review set forth in R.C. 2953.08(G)(2).” State v. Baker, Athens

No. 13CA18,

. See also State v. Brewer, Meigs No.

14CA1,

,

, ¶ 33 (“we join the growing number

of appellate districts that have abandoned the Kalish plurality's second-step

abuse-of-discretion standard of review; when the General Assembly reenacted

R.C. 2953.08(G)(2), it expressly stated that ‘[t]he appellate court's standard of

review is not whether the sentencing court abused its discretion’ ”).

1 Although Appellant’s assignment of error alleges a post-release control error rendered his “convictions” partially void, the argument portion of his brief consistently argues the error rendered the only the post- release control portion of his sentence void. As such, we construe his argument to be that only the post- release control portion of his sentence is void, and not the findings of guilt or other lawful elements of his convictions and sentences. Lawrence App. No. 16CA27 5

{¶6} Under R.C. 2953.08(G)(2), we may only modify or vacate a

defendant's sentence if we find, clearly and convincingly, that: (1) the record

does not support the mandatory sentencing findings, or (2) that the sentence

is “otherwise contrary to law.” We recognize that this is an “extremely

deferential standard of review.” State v. Venes,

,

, ¶ 21. Although State v. Kalish,

,

,

, may not provide the standard of review framework for

reviewing felony sentences, it does provide guidance for determining

whether a sentence is clearly and convincingly contrary to law. See State v.

Lee, 12th Dist. Butler No. CA2012–09–182,

.

According to Kalish, a sentence is not clearly and convincingly contrary to

law when the trial court considered the purposes and principles set forth in

2929.11, as well as the factors listed in R.C. 2929.12, properly applies post-

release control, and sentences within the permissible statutory range. Id.; See

also State v. Kalish, at ¶ 18.

{¶7} Here, although the judgment entry stated Appellant was to be

subject to a mandatory five-year term of post-release control, the trial court

did not notify Appellant of this fact on the record during the sentencing

hearing. “When sentencing a felony offender to a term of imprisonment, a

trial court is required to notify the offender at the sentencing hearing about Lawrence App. No. 16CA27 6

post-release control and is further required to incorporate that notice into its

journal entry imposing sentence.” State v. Gannon, 4th Dist. Lawrence No.

15CA16,

; quoting State v. Jordan,

,

,

, paragraph one of the syllabus. Under

R.C. 2929.19(B)(2)(c) and (e), a trial court must notify certain felony

offenders at the sentencing hearing that: (1) the offender is subject to

statutorily mandated post-release control; and (2) the parole board may

impose a prison term of up to one-half of the offender's originally-imposed

prison term if the offender violates the post-release control conditions.

{¶8} With respect to the State’s notation that Appellant was informed

that he would be subject to post-release control during his plea hearing, we

cannot conclude that such notice satisfies the statutorily required notice that

must be provided at the sentencing hearing. State v. Biondo, 11th Dist.

Portage No. 2008-P-0028,

, FN. 2 (“not only must a court

notify a defendant at the sentencing hearing and in its journal entry on

sentence, but also, where applicable, prior to accepting his or her plea.”); see

also State v. Delventhal, 8th Dist. Cuyahoga No. 81034,

, ¶

6 (“Informing a defendant of post-release control at sentencing cannot

validate a guilty plea entered without such knowledge, nor can information Lawrence App. No. 16CA27 7

at a plea hearing substitute for the actual imposition of sentence required

under R.C. 2929.19(B)(3) [now R.C. 2929.19(B)(2)(c)].”).

{¶9} However, not only is a trial court required to notify the offender

about post-release control at the sentencing hearing, it is also required to

incorporate that notice into its journal entry imposing sentence. The main

focus of the post-release control sentencing statutes is on the notification

itself and not on the sentencing entry. State v. Adkins, 4th Dist. Lawrence

No. 13CA17,

, ¶ 36 (internal citations omitted). “When a

trial court fails to provide the required notification at either the sentencing

hearing or in the sentencing entry, that part of the sentence is void and must

be set aside.” Id. at ¶ 37; citing State v. Fischer,

, 2010-

Ohio-6238,

, ¶¶ 27-29; see also State v. Adams, 4th Dist.

Lawrence No. 15CA2,

. Further, “ ‘[i]n most cases,

the prison sanction is not void and therefore “only the offending portion of

the sentence is subject to review and correction.” ’ ” Id.; quoting State v.

Holdcroft,

,

,

; in turn

quoting Fischer at ¶ 27.

{¶10} Because the record confirms the trial court failed to advise

Appellant of post-release control during the sentencing hearing, which

constitutes a notification error, that portion of his sentence is void, must be set Lawrence App. No. 16CA27 8

aside and the matter remanded for a resentencing hearing in accordance with

R.C. 2929.191. State v.

. Accordingly, Appellant’s sole

assignment is error is sustained, to the extent it argues the post-release control

portion of his sentence, rather than his convictions, has been rendered void as

a result of this error.

JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING. Lawrence App. No. 16CA27 9

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING. Appellant shall recover any costs from Appellee.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Hoover, J.: Concur in Judgment and Opinion.

For the Court,

BY: _____________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.