[Cite as State v. Smith, 2018-Ohio-4562.]



             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                            STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                              WILLIS SMITH,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 17 MA 0174


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                   Case No. 2012 CR 1071

                                         BEFORE:
                  Cheryl L. Waite, Gene Donofrio, Kathleen Bartlett, Judges.


                                                 JUDGMENT:
                                            Affirmed and Modified.

Atty. Paul J. Gains, Mahoning County Prosecutor and
Atty. Ralph M. Rivera, Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee

Atty. Timothy Young, Ohio Public Defender and
Atty. Nikki Trautman Baszynski, Assistant State Public Defender, Office of the Ohio
Public Defender, 250 E. Broad Street, Suite 1400, Columbus, Ohio 43215, for
Defendant-Appellant.

                                       Dated: November 9, 2018
                                                                                     –2–


WAITE, J.

        {¶1}    Appellant Willis Smith appeals a November 9, 2017 Mahoning County

Common Pleas Court judgment entry denying his motion to terminate postrelease

control.    Appellant argues that the trial court’s November 6, 2014 sentencing entry

stated that he would be subject to “up to” five years of postrelease control. Appellant

argues that the phrase “up to” is insufficient to inform him of his postrelease control

term.      For the reasons provided, Appellant’s arguments are without merit and the

judgment of the trial court is affirmed. However, we modify the trial court’s November 6,

2014 sentencing entry to remove the words “up to” from the postrelease control portion

of Appellant’s sentence.

                             Factual and Procedural History

        {¶2}    On October 31, 2014, a jury convicted Appellant on the sole charged

offense of gross sexual imposition, a felony of the third degree in violation of R.C.

2907.05(B), (C)(2). On November 6, 2014, the trial court sentenced Appellant to three

years of incarceration. Relevant to this appeal, the trial court imposed a mandatory five-

year postrelease control sentence.

        {¶3}    On September 26, 2017, Appellant was released from prison. On October

2, 2017, Appellant filed a motion to terminate his postrelease control term. He argued

that the trial court’s advisement of his mandatory five-year postrelease control sentence

incorrectly allowed discretion as to the term of years due to the court’s use of the words

“up to” in its sentencing entry. As he has been released from prison, he sought release

from the postrelease control portion of his sentence. On November 9, 2017, the trial

court acknowledged that the language in the entry was inaccurate but ruled that it could




Case No. 17 MA 0174
                                                                                       –3–


not correct its error because Appellant had been released from prison. It is from this

entry that Appellant appeals.

                                ASSIGNMENT OF ERROR

       The trial court erred when it denied Mr. Smith's motion to vacate his void

       postrelease control. State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927,

       85 N.E.3d 700; State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817

       N.E.2d 864; R.C. 2967.28; Judgment Entry (Nov. 6, 2014); Judgment

       Entry (Nov. 9, 2017); Sentencing Tr. 14.

       {¶4}   Appellant argues that this Court has previously determined that the use of

language when imposing a mandatory term of postrelease control that does not clearly

impose a mandatory term is insufficient to adequately inform a defendant of his

sentence. See State v. Paris, 7th Dist. No. 15 MA 0045, 2016-Ohio-8175; State v.

Ericson, 7th Dist. No. 09 MA 0109, 2010-Ohio-4315; State v. Williams, 7th Dist. No. 09

BE 0011, 2010-Ohio-2702; State v. Berch, 7th Dist. No. 08 MA 52, 2009-Ohio-2895;

State v. Jones, 7th Dist. No. 06 MA 17, 2009-Ohio-794. Appellant concedes that these

cases all address the issue of whether the appropriate advisement was given at the

sentencing hearing. Appellant also concedes that the trial court properly advised him of

his term of postrelease control at his sentencing hearing. However, he urges that this

notification must also be correctly included within the sentencing entry pursuant to State

v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700. In response, the state

contends that the trial court’s use of the language “up to” in the entry is inconsequential,

pursuant to Grimes.

       {¶5}   In relevant part, R.C. 2967.28(B)(1) provides:




Case No. 17 MA 0174
                                                                                        –4–


      (B) Each sentence to a prison term for a felony of the first degree, for a

      felony of the second degree, for a felony sex offense, or for a felony of the

      third degree that is an offense of violence and is not a felony sex offense

      shall include a requirement that the offender be subject to a period of

      postrelease control imposed by the parole board after the offender's

      release from imprisonment.       * * *    [A] period of post-release control

      required by this division for an offender shall be of one of the following

      periods:

      (1) For a felony of the first degree or for a felony sex offense, five years[.]

      {¶6}    A trial court “is duty-bound to notify [the] offender at the sentencing

hearing about postrelease control and to incorporate postrelease control into its

sentencing entry.” Grimes, supra, at ¶ 11, citing State v. Jordan, 104 Ohio St.3d 21,

2004-Ohio-6085, 817 N.E.2d 864, at ¶ 22.

      {¶7}    The Ohio Supreme Court has held that the sentencing entry must state:

      (1)    whether postrelease control is discretionary or mandatory, (2) the

      duration of the postrelease-control period, and (3) a statement to the effect

      that the Adult Parole Authority (“APA”) will administer the postrelease

      control pursuant to R.C. 2967.28 and that any violation by the offender of

      the conditions of postrelease control will subject the offender to the

      consequences set forth in that statute.

Grimes, supra, at ¶ 1.

      {¶8}    At the sentencing hearing, the trial court advised Appellant that he was

subject to: “[m]andatory five years post-release control.” (Sent. Hrg. Tr., p. 14.) In




Case No. 17 MA 0174
                                                                                     –5–


relevant part, the trial court’s November 6, 2014 sentencing entry stated, “[i]n addition,

as part of this sentence, post release control must be imposed up to a maximum period

of five (5) years.”    (11/6/14 J.E.)    The parties do not dispute that the trial court’s

advisement of Appellant’s mandatory postrelease control term was proper at the

sentencing hearing. The issue, here, is whether the trial court’s use of the phrase “up

to” five years in its sentencing entry is sufficient.

       {¶9}    We recently addressed a similar issue in State v. Zechar, 7th Dist. No. 17

MA 0111, 2018-Ohio-3731.          In Zechar, the appellant was properly notified of his

mandatory postrelease control term at the sentencing hearing.          However, the trial

court’s judgment entry advised him that he was subject to a postrelease control term “up

to a maximum period of five (5) years.” Id. at ¶ 5. After completing his sentence, the

appellant filed a motion to vacate the postrelease control portion of his sentence based

on the court’s use of the phrase “up to a maximum period of five (5) years.” We held

that the language sufficiently placed the appellant on notice that he was subject to a

mandatory five-year postrelease control term. Id. at ¶ 19. We relied on the fact that the

sentencing entry contained the phrases “must be placed” and “shall be.” Id. Although

we found that the notification was sufficient, we stated that the words “up to” were

unnecessary and inconsistent with the language used at the sentencing hearing and

remanded the matter with instructions to issue a nunc pro tunc entry to remove the

language from the entry. Id. at ¶ 21.

       {¶10} Here, it is clear that Appellant was notified that his postrelease control

term sentence was five years. Although the trial court used the superfluous language

“up to” in the sentencing entry, the court also stated that “post release control must be




Case No. 17 MA 0174
                                                                                     –6–


imposed up to a maximum period of five (5) years.” (Emphasis added.) (11/6/14 J.E.)

The trial court clearly informed him at the sentencing hearing that he would be

sentenced to “[m]andatory five years [of] post-release control.” (Sent. Hrg. Tr., p. 14.)

When this language is read together with the sentencing entry, it is clear that the trial

court imposed a mandatory five-year term.

       {¶11} The sentencing here satisfies Grimes and Zechar as it conveys the

mandatory nature of the term, the length of the term, and provides the consequences

for violating postrelease control. Appellant’s assignment of error is without merit and is

overruled. However, we modify the trial court’s November 6, 2014 sentencing entry to

remove the unnecessary words “up to” from Appellant’s postrelease control sentence.

                                       Conclusion

       {¶12} Appellant argues that the words “up to” five years was insufficient to notify

him that he was ordered to serve a mandatory five-year postrelease control term,

despite the fact that he was clearly and appropriately notified at his sentencing hearing.

Appellant’s argument is without merit. However, we modify the trial court’s November 6,

2014 sentencing entry to remove the words “up to” from Appellant’s postrelease control

sentence.


Donofrio, J., concurs.

Bartlett, J., concurs.




Case No. 17 MA 0174
[Cite as State v. Smith, 2018-Ohio-4562.]




        For the reasons stated in the Opinion rendered herein, the assignment of error is

overruled and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Mahoning County, Ohio, is affirmed. However, we hereby

modify the trial court’s November 6, 2014 sentencing entry to remove the words “up to”

from Appellant’s postrelease control sentence. Costs waived.

        A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                        NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
