[Cite as State v. West, 2011-Ohio-4941.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.     25748

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
FREDERICK C. WEST                                   COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 05 04 1128

                                 DECISION AND JOURNAL ENTRY

Dated: September 28, 2011



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Frederick West, appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms in part and vacates in part.

                                                I

        {¶2}     In 2006, this Court affirmed West’s convictions for aggravated robbery and

tampering with evidence on direct appeal. State v. West, 9th Dist. No. 22839, 2006-Ohio-2985.

West’s original sentencing entry ordered him to “pay all prosecution costs, including any fees

permitted pursuant to O.R.C. 2929.18(A)(4).” In 2010, West filed a motion to dismiss, arguing

both that his sentence was void due to an invalid post-release control notification and that he

could not be resentenced. The trial court conducted a de novo resentencing in December 2010

and journalized a new sentencing entry on December 10, 2010. The new entry orders West to

pay court costs as well as his attorney fees.
                                                2


       {¶3}    West now appeals from the trial court’s sentencing entry and raises four

assignments of error for our review. We consolidate the assignments of error.

                                                II

                               Assignment of Error Number One

       “THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       ASSESSING COURT COSTS AGAINST DEFENDANT WITHOUT
       COMPLYING WITH R.C. 2947.23(A).”

                               Assignment of Error Number Two

       “DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO
       EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL
       COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT’S IMPOSITION
       OF COURT COSTS UNDER R.C. 2947.23(A) WAS DEFECTIVE.”

                              Assignment of Error Number Three

       “THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       ASSESSING ATTORNEY FEES AGAINST DEFENDANT AS IT LACKED
       JURISDICTION TO IMPOSE ANY SUCH FEES.”

                               Assignment of Error Number Four

       “DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO
       EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL
       COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT LACKED
       JURISDICTION TO IMPOSE ATTORNEY FEES.”

       {¶4}    In his assignments of error, West argues that his sentence must be vacated

because the trial court improperly imposed court costs and attorney fees against him.

Specifically, he argues that: (1) the court could not impose costs without first making certain

statutory notifications; and (2) the court could not impose attorney fees because it only had

jurisdiction to correct the post-release control error in his original sentence. He further argues

that his trial counsel was ineffective for failing to raise these arguments at the time of his

resentencing. We find State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, to be dispositive in

this matter.
                                                 3


       “Fischer dictates that an invalid post-release control notification does not taint the
       entirety of an offender’s sentence. Instead, ‘when a judge fails to impose
       statutorily mandated post[-]release control as part of a defendant’s sentence,
       [only] that part of the sentence is void and must be set aside.’ Fischer at ¶26. A
       resentencing must be limited to the imposition of post-release control. Id. at ¶27-
       28. *** [T]his Court has recognized that a trial court exceeds its sentencing
       authority when it conducts a de novo sentencing to correct a post-release control
       error. State v. Cool, 9th Dist. Nos. 25135 & 25214, 2011-Ohio-1560, at ¶4-6.
       Because resentencing is limited to the imposition of post-release control, any
       additional action taken by the trial court with respect to the sentence is a nullity.
       Id.” State v. Stiggers, 9th Dist. No. 25486, 2011-Ohio-4225, at ¶6.

In post-Fischer cases where a trial court has erroneously conducted a de novo resentencing to

remedy a post-release control error, this Court has excised the proper post-release control

notification portion of the new sentencing entry and vacated the remainder of the entry. Cool at

¶5.

       {¶5}    The trial court here conducted a de novo sentencing hearing to correct West’s

post-release control error. Pursuant to Fischer, it lacked the authority to do so. Fischer at ¶26-

28. Yet, the post-release control portion of the court’s December 2010 sentencing entry is

correct, and West concedes that the court properly advised him of his mandatory post-release

control obligations. Accordingly, to the extent the court’s December 10, 2010 sentencing entry

imposes post-release control upon West, it is affirmed. “The remainder of the trial court’s action

in resentencing [West] exceeded the trial court’s jurisdiction and is a nullity. Accordingly, this

Court vacates the remainder of the trial court’s [December 10, 2010] judgment.” Cool at ¶5.

Accord State v. Stallworth, 9th Dist. No. 25461, 2011-Ohio-4492, at ¶35-36. West’s original

sentence remains intact, including the order that he “pay all prosecution costs, including any fees

permitted pursuant to O.R.C. 2929.18(A)(4).” To the extent that West argued in his third

assignment of error that the trial court lacked jurisdiction to impose attorney fees, that
                                                 4


assignment of error is sustained. Based on our application of Fischer, his remaining assignments

of error are moot and we decline to address them. App.R. 12(A)(1)(c).

                                                III

       {¶6}    West’s third assignment of error is sustained for the foregoing reasons, and his

remaining assignments of error are moot. The trial court’s December 10, 2010 sentencing entry

is vacated with the exception of the post-release control portion of the entry. West’s original

sentencing entry remains valid. The judgment of the Summit County Court of Common Pleas is

affirmed in part and vacated in part, consistent with the foregoing opinion.

                                                                        Judgment affirmed in part,
                                                                             and vacated in part.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.


                                                      BETH WHITMORE
                                                      FOR THE COURT
                                        5



CARR, P. J.
MOORE, J.
CONCUR

APPEARANCES:

SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
