[Cite as State v. Easterly, 2013-Ohio-2961.]

                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO,                                 )    CASE NO.    12 MA 208
                                               )
        PLAINTIFF-APPELLEE,                    )
                                               )
VS.                                            )    OPINION
                                               )
TAWHON EASTERLY,                               )
                                               )
        DEFENDANT-APPELLANT.                   )


CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Common Pleas
                                                    Court, Case No. 98CR996.

JUDGMENT:                                           Affirmed.

APPEARANCES:
For Plaintiff-Appellee:                             Attorney Paul Gains
                                                    Prosecuting Attorney
                                                    Attorney Ralph Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 West Boardman Street, 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant:                            Tawhon Easterly, Pro se
                                                    #40047-060
                                                    F.C.I. Beckley
                                                    P.O. Box 350
                                                    Beaver, West Virginia 25813

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


                                                    Dated: June 19, 2013
[Cite as State v. Easterly, 2013-Ohio-2961.]
VUKOVICH, J.

        {¶1}     Defendant-appellant Tawhon Easterly appeals the decision of the
Mahoning County Common Pleas Court on his motion wherein he alleged a void
sentence and sought plea withdrawal.               In ruling on the motion, the trial court
discharged appellant from post-release control because the sentencing court failed to
properly impose it and because appellant had finished serving his sentence.
Appellant argues that the trial court should have vacated his plea as well, urging that
his motion was a presentence plea withdrawal motion.
        {¶2}     However, the improper imposition of post-release control only voids the
portion of the sentence dealing with post-release control.            Because of this and
because he cannot be resentenced due to his release, appellant’s motion is
considered a post-sentence plea withdrawal motion. In any event, no matter how the
motion is categorized, the mere fact that the post-release control portion of the
sentence is void does not void the entire sentence requiring a court to grant a
withdrawal of a plea. For the following reasons, appellant’s arguments are without
merit, and the judgment of the trial court is affirmed.
                                    STATEMENT OF THE CASE
        {¶3}     In 1998, appellant was arrested for shooting at four people from a car.
This resulted in his indictment for murder in the death of Clinton Longmire. See R.C.
2903.02(A),(D) (felony-life).          He was also indicted on three counts of attempted
murder against the three other victims. See R.C. 2923.02(A),(E); R.C. 2903.02(A),
(D) (first degree felonies).             Each count contained a firearm specification for
committing the offense by discharging a firearm from a motor vehicle. See R.C.
2941.146(A).
        {¶4}     In March 2002, appellant negotiated a plea agreement wherein all four
charges were amended to lesser offenses.               Appellant pled guilty to involuntary
manslaughter (a first degree felony), three counts of felonious assault (second
degree felonies), and the firearm specifications. The court accepted the plea and
sentenced him as jointly recommended to six years on each to run concurrently plus
three years for the firearm specifications for a total of nine years.
                                                                                     -2-

       {¶5}   Regarding post-release control, the written plea that appellant signed
explained that five years of post-release control was mandatory for a first degree
felony and three years of post-release control was mandatory for a second degree
felony that involved causing or threatening physical harm. It also stated that if he
violated the conditions, he could be returned to prison for up to nine months for each
violation for a total of 50% of his original term and, if that violation is a felony, he
could receive a new prison term of the greater of one year or the time remaining on
post-release control. Before accepting the plea, the court reiterated these items at
the hearing. (Tr. 7).
       {¶6}   In thereafter proceeding immediately to sentencing, the court did not
restate this post-release control information.    The only reference to post-release
control in the court’s oral imposition of sentence was to state, “the Defendant has
been given his notice under R.C. 2929.19(B)(3) * * *.” (Tr. 16-17). Likewise, the
court’s March 29, 2002 sentencing entry made no mention of post-release control
except to say, “Defendant has been given notice under R.C. 2929.19(B)(3) * * *.” No
appeal was taken.
       {¶7}   In 2006, appellant was granted judicial release with five years of
community control. He thereafter violated his community control. In a February 26,
2008 revocation entry, the court reimposed the original sentence of nine years
followed by “up to five (5) years to be monitored by the Adult Parole Authority.” The
entry also stated, “Defendant has been given notice under R.C. 2929.19(B)(3) * * *.”
       {¶8}   On December 6, 2011, after appellant finished serving his nine years,
his attorney filed a motion to vacate his guilty plea. The motion stated that the
sentence was void due to the lack of proper imposition of post-release control and,
since appellant had served his sentence, he could not be subject to resentencing to
correct the flawed imposition. From this, it was urged that the motion should be
considered a presentence plea withdrawal motion.           It was then noted that a
presentence motion to withdraw a guilty plea should be freely and liberally granted.
No other reasons for plea withdrawal were provided.
                                                                                         -3-

       {¶9}   The defense asked for an oral hearing, which may have proceeded as
scheduled on April 12, 2012. On October 23, 2012, the trial court filed an entry
finding that the post-release control portion of appellant’s sentence was void. As he
had been released from prison after serving his entire prison term, the court
discharged him from any post-release control obligation. The court concluded that
his plea and conviction would remain in effect, thus denying his motion to vacate his
guilty plea. Appellant filed a timely notice of appeal pro se.
                                      ARGUMENTS
       {¶10} Appellant argues that, since the sentencing court did not properly
impose post-release control, his sentence is void. He thus concludes that his plea
withdrawal motion should be considered a presentence motion under the Supreme
Court’s Boswell case. He notes that a presentence motion should be freely and
liberally granted.    He then posits that the post-release control omissions at
sentencing render his conviction void ab initio.
       {¶11} Appellant also makes a confusing argument that the court should
“revisit” his sentence and that it is discriminatory to fail to apply the new statutory “fix”
to his case. He asks us to remand for resentencing while simultaneously stating that
his conviction is void and should be erased from his record.
       {¶12} The state responds by explaining that the 2006 post-release control “fix”
in R.C. 2929.191 that appellant complains about is not relevant no matter what the
date of conviction because that statutory correction deals with those who have not
yet served their sentences. The state then points out that improper imposition of
post-release control only results in a partially void sentence. The state urges that the
plea withdrawal motion should be considered a post-sentence motion, which can only
be granted in cases of manifest injustice.
                                        ANALYSIS
       {¶13} Appellant’s convoluted argument regarding the alleged disparate
treatment of those sentenced before the enactment of R.C. 2929.191 is irrelevant.
The legislature has provided a procedure for correcting faulty post-release control
notifications that is applicable to cases where the sentencing occurred after July 11,
                                                                                    -4-

2006.    State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶
23, 27, 32, 35 (holding that R.C. 2929.191 cannot be applied retroactively as
intended but that it would be applied prospectively to sentences entered on or after
July 11, 2006). Thus, for sentences entered prior to July 11, 2006, the Supreme
Court's procedure developed through case law applies, but for sentences entered on
or after July 11, 2006, such as the sentence here, the statutory procedure applies.
State v. Pullen, 7th Dist. No. 11MA10, 2012-Ohio-1498, ¶12, citing Singleton, 124
Ohio St.3d 173.
        {¶14} However, the result is the same for those who have already been
released from prison without receiving proper notice. Pullen, 7th Dist. No. 11MA10 at
¶29-30. In both cases, the defendant is discharged from post-release control. See
id. In no case is the defendant’s conviction voided merely because the post-release
control portion of his sentence has been vacated.         “[R]egardless of whether the
common law or R.C. 2929.191 applies, the mere lack of proper notice of postrelease
control never renders an entire sentence void.” State v. Triplett, 4th 11CA24, 2012-
Ohio-4529, ¶ 8.
        {¶15} As the Supreme Court has stated, 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 vacated or corrected. State v. Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26-28. “Neither the Constitution
nor common sense commands anything more.” Id. at ¶ 26. Such a partially void
sentence does not make a conviction void. See id. at ¶ 38 (rejecting argument that
without a sentence, there is no conviction and thus no final appealable order), 40 (res
judicata would still apply to other aspects of the conviction).
        {¶16} The next question is thus whether the plea withdrawal motion should be
considered a presentence motion or a post-sentence motion. The Supreme Court
has held that a defendant's motion to withdraw a guilty plea following the imposition
of a void sentence must be considered as a presentence motion and be freely and
liberally granted. State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d
                                                                                      -5-

422, ¶ 13 (resentencing required on remand and thus withdrawal motion was
presentence).
       {¶17} However, this pronouncement was made at a time when the Supreme
Court was still considering the entire sentence void upon a failure to properly apply
post-release control. The Boswell Court’s holding was based upon its prior case law
finding that the post-release control issue requires the void sentence to be vacated,
which places the defendant in the same position as if no sentence had been
rendered. Id. at ¶8. The Supreme Court decided Fischer the next year wherein it
retreated from that line of cases.         See Fischer, 128 Ohio St.3d 92.            As
aforementioned, only the post-release control portion of the sentence is to be
vacated. The defendant is no longer considered to be placed into the position as if
no sentence had been rendered.
       {¶18} Thus, the continued validity of Boswell has been called into question by
the Fischer holding. See State v. Alford, 8th Dist. No. 95946, 2011-Ohio-4811, ¶ 10-
11. See also Triplett, 4th Dist. No 11CA24 at ¶10-11 (finding Boswell distinguishable
on another ground but noting, “Since Fischer, the Supreme Court has not addressed
whether a motion to withdraw a guilty plea filed after the imposition of a partially void
sentence should be treated as a pre- or post-sentence motion.”).
       {¶19} Multiple courts have concluded that, due to Fischer, a plea withdrawal
motion filed in a case where the post-release control portion of the sentence is void is
to be considered a post-sentence motion. See, e.g., State v. Jackson, 8th Dist. No.
97809, 2012-Ohio-4280, ¶ 11-12, 16; State v. Beachum, 6th Dist. Nos. S-10-041, S-
10-042, 2012-Ohio-285, ¶ 21, citing State v. Gonzalez, 193 Ohio App.3d 385, 2011-
Ohio-1542, 952 N.E.2d 502, ¶ 34 (6th District); State v. Hazel, 10th Dist. Nos. 10AP-
1013, 10AP-1014, 2011-Ohio-4427, ¶ 12, 15-17; State v. Bell, 8th Dist. No. 95719,
2011-Ohio-1965, ¶ 14-22; State v. Thomas, 1st Dist. Nos. C-100411, C-100412,
2011-Ohio-1331, ¶ 16; State v. Christie, 3d Dist. No. 4-10-04, 2011-Ohio-520, ¶ 25.
We likewise consider the motion here to be a post-sentence motion due to the
Fischer holding, which altered the entire premise on which Boswell was based.
                                                                                     -6-

      {¶20} In any event, Boswell is factually distinguishable from the situation in
the case at bar because appellant had completed his prison sentence. Thus, post-
release control was never imposed in time for that portion of his sentence to be
vacated and the case remanded. As such, no portion of appellant’s sentence was
pending in order to make the plea withdrawal motion a presentence motion. Other
courts have also concluded that Boswell is inapplicable where the defendant has
already been released. See State v. Pesci, 8th Dist. No. 94902, 2011-Ohio1058, ¶ 9;
State v. Cottrell, 8th Dist. No. 95053, 2010-Ohio-5254, ¶ 14; State v. Simone, 9th
Dist. No. 24966, 2010-Ohio-1824, ¶ 11-12, citing dicta in State v. Harrison, 122 Ohio
St.3d 512, 912 N.E.2d 1106, 2009-Ohio-3547, ¶ 37.
      {¶21} For this additional and alternative reason, appellant’s plea withdrawal
motion is considered a post-sentence motion.        We thus turn to the question of
whether the motion should have been granted.
      {¶22} “A motion to withdraw a plea of guilty or no contest may be made only
before sentence is imposed; but to correct manifest injustice the court after sentence
may set aside the judgment of conviction and permit the defendant to withdraw his or
her plea.” Crim.R. 32.1. An appellate court will not disturb a trial court's denial of a
motion to withdraw a guilty plea absent an abuse of discretion. State v. Xie, 62 Ohio
St.3d 521, 527, 584 N.E.2d 715 (1992); State v. Smith, 49 Ohio St.2d 261, 361
N.E.2d 1324 (1977).
      {¶23} For a post-sentence plea withdrawal motion, the defendant has the
burden of establishing the existence of a manifest injustice. Smith, 49 Ohio St.2d at
264. “A manifest injustice comprehends a fundamental flaw in the path of justice so
extraordinary that the defendant could not have sought redress from the resulting
prejudice through any form of application reasonably available to him.”        State v.
McQueen, 7th Dist. No. 08MA24, 2008-Ohio-6589, ¶ 7.            Hence, a postsentence
motion to withdraw a guilty plea is only granted in extraordinary cases. Smith, 49
Ohio St.2d at 264.
                                                                                                    -7-

        {¶24} This is not such an extraordinary case.                  The mere fact of a void
sentence does not justify plea withdrawal,1 and this is all appellant’s motion set forth.
The trial court may have conducted a hearing on the motion on April 12, 2012, but no
transcript from such hearing was provided to this court to establish that something
besides the bare allegation of a void post-release control sentence was presented to
the trial court.     And, nothing surrounding appellant’s plea indicates a manifest
injustice occurred.
        {¶25} We also note that appellant’s motion would fail even under the lower
standard for presentence motions. A presentence motion to withdraw a guilty plea
“should be freely and liberally granted.”             Xie, 62 Ohio St.3d at 527.             Still, the
defendant does not have an absolute right to withdraw his plea. Id. We typically
review a non-exhaustive list of factors in reviewing the court’s exercise of discretion.
See, e.g., State v. Moore, 7th Dist. No. 06CO74, 2008-Ohio-1039, ¶ 13, citing State
v. Fish, 104 Ohio App.3d 236, 661 N.E.2d 788 (1995).
        {¶26} The only factors gleaned from appellant’s motion are those unfavorable
to plea withdrawal. For instance, the motion was filed nearly ten years after he
entered his plea and was sentenced. And as aforementioned, both the written plea
and the court (orally before accepting the plea) advised appellant regarding post-
release control. Thus, this is not a case where the defendant is alleging improper
advisement concerning post-release control prior to the plea, which would be
irrelevant anyway since he ended up being discharged from such obligation.
Moreover, at the plea hearing, the court reviewed the new offenses, their degrees,
and their ranges of punishments and advised appellant of the rights he would be
waiving by pleading guilty.          Finally, he was represented by competent counsel
throughout and received a favorable result in the plea bargaining process manifested
in both the lowered charges and the (jointly recommended) sentence.                              Since


        1
          There would be no need for the Boswell case (or other subsequent appellate cases cited
above) to even categorize the plea withdrawal motion if this mere fact required plea withdrawal. And, if
the entire sentence is not void, then the plea is not void either. See Fischer, 128 Ohio St.3d 92 at ¶
26-27 (only the offending portion of the sentence is subject to review and correction), ¶ 38 (rejecting
argument that a sentence without proper post-release control would mean there is no conviction and
                                                                                                     -8-

appellant’s motion alleges nothing besides the fact that the post-release control
portion of his sentence is void, he comes nowhere near even the liberal standard of a
presentence plea withdrawal motion.
        {¶27} For all of these reasons, appellant’s position on appeal is without merit,
and the judgment of the trial court is affirmed.

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




thus no final order), ¶ 40 (partially void sentence does not void whole conviction and res judicata still
applies to other aspects of conviction);
