[Cite as State v. Williams, 2010-Ohio-2702.]




                              STATE OF OHIO, BELMONT COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT



STATE OF OHIO,                                 )
                                               )     CASE NO.      09 BE 11
        PLAINTIFF-APPELLEE,                    )
                                               )
        - VS -                                 )     OPINION
                                               )
STEVEN PERRY WILLIAMS,                         )
                                               )
        DEFENDANT-APPELLANT.                   )



CHARACTER OF PROCEEDINGS:                      Criminal Appeal from Common Pleas Court,
                                               Case No. 07CR211.


JUDGMENT:                                      Affirmed in part; Vacated in part; Remanded.


APPEARANCES:
For Plaintiff-Appellee:                        Attorney Chris Berhalter
                                               Prosecuting Attorney
                                               147-A West Main Street
                                               St. Clairsville, Ohio 43950


For Defendant-Appellant:                       Attorney Keith O’Korn
                                               1188 South High Street
                                               Columbus, Ohio 43206


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro


                                               Dated: June 14, 2010
VUKOVICH, P.J.

        ¶{1}    Defendant-appellant Steven Perry Williams appeals the judgment of the
Belmont County Common Pleas Court, which sentenced him after he pled guilty to
various offenses.        As appellant points out, the trial court informed appellant at
sentencing and in the sentencing entry that post-release control would be discretionary
where it was actually mandatory for the second degree felony offense of burglary. Due
to this misinformation, the sentence for burglary is vacated, and the case is remanded
for resentencing on that offense.            However, the sentencing decision on the other
offenses is upheld as resting within the trial court’s sound discretion.
                                   STATEMENT OF THE CASE
        ¶{2}    Appellant pled guilty to the following eight felony offenses that he
committed on separate occasions over a three-month period from August through
October of 2007: two fifth-degree felony breaking and entering counts regarding a
market and a garage; three separate counts of fourth-degree felony vehicular theft;
theft of a muzzleloader, a third degree felony; burglary of a house, a second degree
felony; and fourth-degree felony arson. He also stipulated to forfeiture of his vehicle.
In formulating the plea agreement, the state agreed to recommend six years in prison
and to not oppose judicial release after five years.
        ¶{3}    The court sentenced appellant to two years for burglary and one year for
each of the other seven counts.                   Six of the one-year sentences were run
consecutively, and the burglary and arson sentences were run concurrently, for a total
of six years in prison. His truck was ordered forfeited, and he was ordered to pay
restitution in the amount of $8,209.91.
        ¶{4}    At sentencing, the court ordered that appellant “may be subject to a
period of supervision under post release control as the Parole Board may determine
pursuant to law for a period of up to three years.” (Sent. Tr. 17). The court’s January
29, 2008 sentencing entry likewise stated, “As part of the Defendant’s sentence in this
case, and pursuant to R.C. 2929.671, upon completion of the prison term, [the]



        1
         Note that R.C. 2929.67 is a non-existent statute; the court likely meant to refer to R.C. 2967.28,
the post-release control statute.
offender may be subject to a period of supervision under Post-Release Control as the
Parole Board may determine pursuant to law for a period of three (3) years.”
       ¶{5}   Appellant did not immediately appeal. However, he filed a motion for
leave to file a delayed appeal, which this court granted.
                      ASSIGNMENT OF ERROR NUMBER ONE
       ¶{6}   Appellant’s first assignment of error provides:
       ¶{7}   “THE TRIAL COURT ERRED WHEN IT ADVISED THE APPELLANT AT
SENTENCING THAT HE MAY BE SUBJECT TO THREE YEARS OF POST-
RELEASE CONTROL UPON HIS RELEASE FROM PRISON IN VIOLATION OF R.C.
§ 2967.28, THEREBY RENDERING APPELLANT’S SENTENCE VOID.”
       ¶{8}   Pursuant to R.C. 2929.19(B)(3)(c), when a court imposes a prison term
at a sentencing hearing, the court shall notify the offender that he will be supervised
under R.C. 2967.28 if he is being sentenced for a first or second degree felony, a
felony sex offense, or a third degree felony where the offender caused or threatened
physical harm to a person. Similarly, R.C. 2929.14(F)(1) states that if a court imposes
a prison term for these categories of offenses, it shall include in the sentence a
requirement that the offender be subject to a period of post-release control after
release from imprisonment. The mandatory term of post-release control for a second
degree felony that is not a felony sex offense is three years. R.C. 2967.28(B)(2).
       ¶{9}   Based upon these provisions, the Supreme Court has held that a felony
sentence is void where it does not properly provide for post-release control. State v.
Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, ¶12, 16.              A defendant who is still
incarcerated can be resentenced in the event of such a lacking sentence. See id. at
¶18. This could be done by the trial court sua sponte or after the appellate court
remands on the issue. Id. at ¶16; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-
1197; State ex rel. Crusado v. Zaleska, 11 Ohio St.3d 353, 2006-Ohio-5795; State v.
Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶27, 40.
       ¶{10} A trial court’s statement that the defendant may be subject to post-
release control of “up to three years” is a statement that the defendant may be subject
to less than three years, possibly even no years, of post-release control. State v.
Jones, 7th Dist. No. 06MA17, 2009-Ohio-794, ¶12.            This is insufficient to impose
mandatory post-release control. Id. See, also, State v. Bloomer, 122 Ohio St.3d 200,
2009-Ohio-2462, ¶69. Thus, where post-release control was mandatory and the court
misadvised, at either the sentencing hearing or in the sentencing entry or both, that
post-release control was discretionary, we have vacated the sentence and remanded
for resentencing. Id.
      ¶{11} We recognize that our Jones case dealt with a sentence entered prior to
the July 11, 2006 effective date of the 2006H137 amendments to the post-release
control statutes. As aforementioned, one change was to specifically permit the trial
court to sua sponte order a hearing prior to the prisoner’s release in order to correct
the faulty imposition of post-release control in sentences entered before July 11, 2006.
R.C. 2929.191(A)(1). We concluded that a remand from an appellate court was an
available remedy even though the new statute permitted the trial court to amend the
sentence prior to the defendant’s release from prison. Jones, 7th Dist. No. 06MA17 at
¶11, citing State v. Osborne, 115 Ohio St.3d 1228, 2008-Ohio-261, ¶2; Bezak, 114
Ohio St.3d 94 at ¶16-17 (majority) as compared to ¶20 (O’Connor, J., dissenting) and
¶26-32 (Lanzinger, J., dissenting).
      ¶{12} Yet, a different provision has been added to the three relevant post-
release control statutes outlined at the beginning of this assignment of error. This new
provision was inapplicable in Jones as it applies only to those sentences entered on or
after July 11, 2006. Added to R.C. 2929.14(F)(1), R.C. 2929.19(B)(3)(c), and R.C.
2967.28(B) is a statement that on or after July 11, 2006, where a court imposes a
prison sentence which is statutorily mandated to include post-release control, the
failure of a court to notify the offender that he will be supervised or to include such
language in the judgment entry “does not negate, limit, or otherwise affect the
mandatory period of supervision that is required for the offender * * *.” (Emphasis
added).
      ¶{13} The Eighth District has read this language as invalidating the prior
Supreme Court law that declared a sentence void if it failed to properly state the terms
of post-release control at the sentencing hearing or in the sentencing entry. State v.
Walls, 8th Dist. No. 92280, 2009-Ohio-4985, ¶10. The Walls Court found that as long
as the parole board notifies the offender prior to his release from prison, then there is
authority for imposing post-release control upon a prisoner’s release. Id.
      ¶{14} The Ninth District has disagreed and continues to vacate sentences
where the trial court improperly stated a discretionary rather than a mandatory term of
post-release control for those sentenced even after the effective date of the
amendments. State v. Thomas, 9th Dist. No. 09CA9532, 2009-Ohio-6021, ¶2, 5. The
dissent in Thomas expressed that the Supreme Court’s prior analysis should not be
extended to those sentenced after July 11, 2006 because although the statutes state
that the court shall notify the offender and that the sentence shall contain post-release
control, the amendments provide that the failure to do so does not negate the
sentence. Id. at ¶10-11.
       ¶{15} This court has applied the prior Supreme Court analysis on void
sentences to a sentence entered after the effective date of the statutory amendments
without discussing the effect of the amendments.          State v. Berch, 7th Dist. No.
08MA52, 2009-Ohio-2845, ¶3, 42-44. Although not cited by Walls or the Thomas
dissent, it should also be noted that the Uncodified Law in 2006H137 specifies that the
purpose of the amendments:
       ¶{16} “is to reaffirm that, under the amended sections as they existed prior to
the effective date of this act: (1) by operation of law and without need for any prior
notification or warning, every convicted offender sentenced to a prison term for first or
second degree * * * always is subject to a period of post-release control after the
offender’s release from imprisonment pursuant to and for a period of time described in
division (B) of 2967.28 of the Revised Code * * *.”
       ¶{17} This language and that of the amendments appears to be an attempt by
the legislature to negate the Supreme Court law on void sentences and the need to
resentence. Still, the legislature added the language that the failure of the court to
notify the offender or impose post-release control “does not negate, limit, or otherwise
affect the mandatory period of supervision that is required for the offender” while failing
to delete the mandatory nature of the court’s duty to notify the offender and to impose
post-release control.
       ¶{18} The Supreme Court recently made pronouncements that seem to
maintain its prior position on resentencing regardless of the legislative amendments.
See State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462 (concerning the Barnes
defendant).    In that case, a defendant was originally sentenced prior to the
amendments. However, he was resentenced after the amendments in order to fix an
erroneous post-release control advisement.       At resentencing, the trial court again
failed to properly advise the defendant. Specifically, both the oral advisement and the
sentencing entry failed to state the term of post-release control, and the written
sentencing entry stated only that the defendant “may” be subject to post-release
control when in fact the control was mandatory. Id. at ¶69.
       ¶{19} Since it is the August 2006 resentencing hearing and the subsequent
order that the Supreme Court reviewed for the sufficiency of post-release control
notification and imposition, this is a post-amendment case. Besides stating that the
trial court failed to comply with R.C. 2929.191 (for sua sponte resentencing of
previously failed impositions), the Supreme Court declared that the trial court also
failed to comply with prior Supreme Court precedent.          Id. at ¶69.     The Court
announced:    “Furthermore, in the absence of a proper sentencing entry imposing
postrelease control, the parole board’s imposition of postrelease control cannot be
enforced. Imposition of punishment is a function of the judicial branch of government.”
Id. at ¶71.
       ¶{20} The Bloomer Court recognized that the legislature amended R.C.
2929.14(F)(1) to add the language that the failure to include post-release control in a
sentence does not negate, limit, or otherwise affect the mandatory period of post-
release control. Id. at ¶72. Immediately thereafter, the Court pronounced:
       ¶{21} “Nothing in that division, however, provides that the executive branch
may impose postrelease control if the sentencing court has not ordered it, nor does its
language conflict with our precedent.     However, a sentencing court must impose
postrelease control before an offender completes the stated terms of imprisonment.”
Id.
       ¶{22} Barnes was then discharged from post-release control because the post-
amendment resentencing was improper and because Barnes had since been
released. Id. at ¶72-73.
       ¶{23} Thus, whatever the legislature attempted to accomplish with its
amendments (stating that post-release control is not negated by the sentencing court’s
failures), the Supreme Court does not believe that the amendments mean that post-
release control is automatic upon release regardless of the sentencing court’s failures.
As such, remand for resentencing is still a proper remedy on direct appeal.
       ¶{24} Although we vacated and remanded the entire sentence in Jones, this is
not technically required. That is, in Bezak, the Supreme Court pointed out that if the
post-release control notification was only improper on one count of a multiple-count
sentence, then only the count with the improper notification needs remanded for
resentencing. Bezak, 114 Ohio St.3d 94 at ¶14-17, citing State v. Saxon, 109 Ohio
St.3d 176, 2006-Ohio-1245. “When a defendant is convicted of or pleads guilty to one
or more offenses and postrelease control is not properly included in a sentence for a
particular offense, the sentence for that offense is void. The offender is entitled to a
new sentencing hearing for that offense.” Id. at ¶16.
       ¶{25} Here, appellant only contests the content of the post-release control
notification regarding one second degree felony, which should have carried a
mandatory three-year term of post-release control as opposed to the discretionary
term imposed by the court. See R.C. 2967.28(B)(2). The other seven counts were
subject to discretionary post-release control of up to three years as advised by the trial
court. See R.C. 2967.28(C). Consequently, we vacate the sentence for burglary, and
remand solely for resentencing on that offense. We proceed to address only the
sentences imposed upon the remaining offenses.
                      ASSIGNMENT OF ERROR NUMBER TWO
       ¶{26} Appellant’s second assignment of error contends:
       ¶{27} “APPELLANT’S         SENTENCE        CONSTITUTED         AN     ABUSE      OF
DISCRETION.”
       ¶{28} After the Ohio Supreme Court's split decision in Kalish, we review
sentences using both the clearly and convincingly contrary to law standard of review
and the abuse of discretion standard of review. State v. Gratz, 7th Dist. No. 08MA101,
2009-Ohio-695, ¶8; State v. Gray, 7th Dist. No. 07MA156, 2008-Ohio-6591, ¶17,
applying State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. We first determine
whether the sentencing court complied with all applicable rules and statutes in
imposing the sentence to determine whether the sentence is clearly and convincingly
contrary to law. Gratz, 7th Dist. No. 08MA101 at ¶8. If the sentence is not clearly and
convincingly contrary to law, we determine whether the sentencing court abused its
discretion in applying the factors in R.C. 2929.11 and R.C. 2929.12. Id.
       ¶{29} In this assignment, appellant asks us to conduct only an abuse of
discretion review concerning R.C. 2929.11 and R.C. 2929.12. He complains that he
received the maximum sentence of one year on the two breaking and entering counts
and that six out of eight counts were run consecutively. He notes that he had no prior
felony record and that this was his first foray into criminal activity involving victims. He
complains that the court treated him as a repeat offender due to the fact that he pled to
eight offenses. Appellant points out that the offenses were not physically violent. He
also contests the court’s belief that he was not remorseful.
      ¶{30} The overriding purposes of felony sentencing are to protect the public
from future crime by the offender and others and to punish the offender.           R.C.
2929.11(A). To achieve these purposes, the sentencing court shall consider the need
for: incapacitating the offender; deterring the offender and others from future crime;
rehabilitating the offender; and making restitution.       Id.    A sentence shall be
commensurate with and not demeaning to the seriousness of the offender's conduct
and its impact upon the victim. R.C. 2929.11(B). The sentencing court has discretion
to determine the most effective way to comply with the purposes and principles of
sentencing set forth in section 2929.11 and shall consider whether any seriousness
and recidivism factors are relevant. R.C. 2929.12(A).
      ¶{31} As for the listed seriousness factors, appellant caused serious economic
harm to the family whose truck he stole when he purposely totaled it by pushing it over
a cliff. See R.C. 2929.12(B)(2). Regarding another one of the stolen vehicles, he
alighted from a stolen bike with plans to steal the first available vehicle. He then
attempted to enter various vehicles until he found an easy target, which he soon ran
into a ditch. The arson offense related to stolen scrap metal. His relationship with the
victims facilitated the two different breaking and entering charges.          See R.C.
2929.12(B)(6). None of the factors that make an offense less serious are applicable.
See R.C. 2929.12(C).
      ¶{32} Regarding the recidivism factors, it was conceded that he had prior
instances of underage consumption and a prior paraphernalia charge. (Sent. Tr. 3).
As appellant emphasizes, he does not have a felony record. However, he is only
nineteen, and he has been on a felony crime spree.               Contrary to appellant’s
suggestion, the court did not abuse its discretion in considering the fact that these
eight offenses occurred separately over a three-month period. It cannot be said that
appellant is generally law-abiding. In fact, he committed an offense while out on bail
from the Western Division court.       (Sent. Tr. 4).   Plus, he seemed to admit to
committing more crimes than he was charged with.
      ¶{33} The court also determined that appellant demonstrated a pattern of drug
or alcohol abuse that is related to the offense and he failed to make a good faith
attempt at treatment. See R.C. 2929.12(A) (and any other relevant factor), (D)(4). He
admitted to using alcohol, marijuana, cocaine, and crystal meth and to addictions
regarding most of these substances. Although appellant expressed remorse on the
record, the court opined that he failed to show genuine remorse.               See R.C.
2929.12(D)(5). His credibility in expressing his remorse is primarily the province of the
trial court. Notably, he blamed his offenses on friends and drugs. He claimed he
committed the offenses in order to get money to buy drugs. However, as the state
pointed out, the stealing of vehicles, the totaling of a vehicle, the running of another
vehicle into a ditch, and the arson were not performed for money.
       ¶{34} In conclusion, the trial court’s decision to impose maximum one-year
sentences for the breaking and entering charges is not an abuse of discretion. As
aforementioned, he used a relationship with the victim to facilitate the offenses, and he
also stole multiple items after breaking and entering. It is also reasonable to find that
appellant has highly recidivistic tendencies.
       ¶{35} The running of six one-year sentences consecutively may appear harsh
to appellant. However, the court did give him concurrent sentences for the burglary
and arson charges, two very serious offenses.            Additionally, all eight counts
represented separate and unrelated incidents. Moreover, there is no longer special
fact-finding required for maximum or consecutive sentences. See State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, syllabus ¶7. Rather, the court has discretion to fashion
sentences and run them consecutively without regard to statutorily-listed findings of
fact. Id. Under the totality of the circumstances existing here, the sentences fall within
the trial court’s sound discretion.
                     ASSIGNMENT OF ERROR NUMBER THREE
       ¶{36} Appellant’s third assignment of error alleges:
       ¶{37} “TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF 6TH AMENDMENT TO THE U.S. CONSTITUTION
AND ARTICLE I, SECTIONS 10, 16 OF THE OHIO CONSTITUTION.”
       ¶{38} Appellant merely argues here that his counsel was ineffective at
sentencing for failing to make the arguments now raised in the previous two
assignments of error. Because neither of those assignments raised errors that were
waived, this assignment of error is without merit. That is, trial counsel does not waive
appellate review of proper post-conviction sentencing or the issue of whether a
sentence is an abuse of discretion or otherwise contrary to law; these issues are
appealable notwithstanding the failure to complain to the trial court about the
sentence. In any event, the result of this assignment is dependent upon our review
within each assignment of error.       Therefore, this assignment is subsumed by our
resolution of the prior assignments.
      ¶{39} For the foregoing reasons, appellant’s sentence for burglary is vacated,
and the case is remanded for resentencing on that offense only. The sentencing
decision entered on the other offenses is hereby affirmed.

Donofrio, J., concurs.
DeGenaro, J., concurs.
