[Cite as State v. Alexander, 2017-Ohio-7261.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

STATE OF OHIO                                         :
                                                      :
        Plaintiff-Appellee                            :  C.A. CASE NO. 27341
                                                      :
v.                                                    :  T.C. NO. 07-CR-508
                                                      :
ROBERT ALEXANDER                                      :  (Criminal Appeal from
                                                      :   Common Pleas Court)
        Defendant-Appellant                           :
                                                      :
                                                 ...........

                                                OPINION

               Rendered on the ___18th ___ day of _____August_____, 2017.

                                                 ...........

MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

ROBERT ALEXANDER, #556-568, London Correctional Institute, P. O. Box 69, London,
Ohio 43140
      Defendant-Appellant

                                                .............

DONOVAN, J.

        {¶ 1} On July 11, 2007, Defendant-Appellant, Robert W. Alexander was convicted

of one count of aggravated murder with a firearm specification, along with two counts of

aggravated robbery, also with firearm specifications. State v. Alexander, 2d Dist.

Montgomery No. 22278, 2008-Ohio-4131, ¶ 1. In an appeal filed on November 10, 2016,

Alexander argues that, at the sentencing hearing, the trial court failed to notify him of
                                                                                            -2-
mandatory post-release control pursuant to R.C. 2967.28(B).

       {¶ 2} The State has filed a notice of conceded error, pursuant to Loc.R. 2.24 of this

court. We agree with the State that the trial court erred in failing to notify Alexander at the

sentencing hearing concerning mandatory post-release control. Accordingly, the

judgment of the trial court will be reversed and the case will be remanded for further

proceedings.

       {¶ 3} In March 2007, Alexander was indicted for one count of aggravated murder

with a firearm specification, and two counts of aggravated robbery with firearm

specifications. After a trial ending on June 28, 2007, the jury found Alexander guilty on all

counts.

       {¶ 4} At the sentencing hearing on July 11, 2007, the trial court imposed a

sentence of life in prison with parole eligibility after 25 years for aggravated murder, along

with a three year sentence for the firearm specification. On the two counts for aggravated

robbery, the trial court imposed concurrent seven year sentences to be served

consecutively with the sentence for aggravated murder.

       {¶ 5} At the sentencing hearing, the trial court informed Alexander of his right to

appeal, but did not inform him of the five year mandatory period of post-release control

following the defendant’s release from prison.

       {¶ 6} In the Termination Entry filed on July 16, 2007, the trial court included

language notifying the defendant of the five year post-release control period following his

release from imprisonment. On August 25, 2016, Alexander filed a re-sentencing motion,

claiming the trial court failed to impose post-release control pursuant to R.C. 2967.28(B).

On October 13, 2016, the trial court overruled Alexander’s motion for resentencing,
                                                                                       -3-
holding that his grounds for a new hearing were barred by res judicata.

       {¶ 7} Alexander subsequently filed an appeal of the trial court’s decision on

November 10, 2016.

       {¶ 8} Alexander’s sole assignment of error states:

       The trial court failed to properly impose post release control pursuant to

       R.C. 2967.28 by failing to impose any mandatory post release control in the

       above case, the trial court’s imposition does not include any mandatory post

       release control as required by Ohio Revised Code R.C. 2967.28.

       {¶ 9} Post-release control is defined under R.C. 2967.01(N) as “a period of

supervision by the adult parole authority after a prisoner’s release from imprisonment.”

Post-release control sanctions include a sanction authorized under R.C. 2929.16, R.C.

2929.17, and R.C. 2929.18.

       {¶ 10} Under R.C. 2967.28(B), the failure of a court to notify the defendant at the

sentencing hearing of mandatory post-release control or failure to include a notice of

post-release control in the judgment entry does not negate or affect the mandatory nature

of post-release control.

       {¶ 11} Per State v. Terry, the trial court is required to notify a defendant at the

sentencing hearing about post release control, and incorporate that notification into the

entry imposing the sentence. State v. Terry, 2d Dist. Darke No. 09CA0005,

2010-Ohio-5391, ¶ 14.

       {¶ 12} The Ohio Supreme Court in State v. Fischer found that a judge’s failure to

invoke mandated post-release control results in that part of the sentence becoming void,

and is set aside. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.
                                                                                           -4-
       {¶ 13} Alexander was not advised of mandatory post-release control at the

sentencing hearing as required under Terry, but was notified via the Termination Entry

filed on July 16, 2007, that specified a five year term of post-release control following his

release from imprisonment. In the order overruling the motion for resentencing, the trial

court stated that Alexander’s argument was barred by res judicata.

       {¶ 14} This finding is erroneous. The court held in Fischer, that “(a) sentence that

does not include the statutorily mandated term of post-release control is void, is not

precluded from appellate review by principles of res judicata, and may be reviewed at any

time, on direct appeal or by collateral attack.” Id., paragraph one of the syllabus.

       {¶ 15} Even though the Termination Entry included the five year term of

post-release control, the trial court was still required to inform Alexander at the sentencing

hearing of the requirement for post-release control. “Both are necessary in order to

authorize the parole board to exercise the authority that R.C. 2967.28 confers on that

agency.” Terry at ¶15.

       {¶ 16} In responding to the assignment of error, the state has filed a notice of

conceded error, pursuant to Loc.R. 2.24 of this court.

       {¶ 17} Accordingly, Alexander’s sole assignment of error is sustained.

       {¶ 18} Alexander’s sole assignment of error having been sustained, the judgment

denying Alexander’s motion for resentencing is reversed, and this case is remanded for

further proceedings consistent with this opinion.

                                          .............


HALL, P. J. and TUCKER, J., concur.
                            -5-



Copies mailed to:

Michael J. Scarpelli
Robert Alexander
Hon. Michael W. Krumholtz
