[Cite as State v. Miller, 2011-Ohio-1459.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PUTNAM COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 12-10-13

        v.

TODD MILLER,                                               OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Putnam County Common Pleas Court
                            Trial Court No. 03 CR 35

                                       Judgment Affirmed

                             Date of Decision: March 28, 2011




APPEARANCES:

        Todd Miller, Appellant

        Todd C. Schroeder for Appellee
Case No. 12-10-13



SHAW, J.

        {¶1} Defendant-appellant, Todd Miller (“Miller”), appeals the September 8,

2010 judgment of the Common Pleas Court of Putnam County, Ohio, notifying

Miller that upon his release from prison he would be subject to a mandatory term

of post-release control of five years.

        {¶2} The facts relevant to this appeal are as follows. On July 31, 2003,

Miller pled guilty to two counts of unlawful sexual conduct with a minor in

violation of R.C. 2907.04(B)(3), both felonies of the third degree. In his signed

plea agreement, Miller was advised that he would receive five years of post-

release control (“PRC”) for committing a felony sex offense and of the potential

consequences of a violation of PRC. On September 5, 2003, Miller was sentenced

to four years on each count to be served consecutively for an aggregate sentence of

eight years. In its sentencing entry, the trial court notified Miller that he would be

placed on PRC for “up to 5 years.”1 Miller did not appeal his conviction.2

        {¶3} On September 8, 2010, the trial court held a hearing for the purpose of

notifying Miller of the proper term of PRC that would be imposed upon him.

According to the court’s judgment entry regarding this hearing, it provided the



1
  This Court is unaware of what PRC advisement was provided to Miller at either his plea hearing or his
sentencing hearing as no transcript of either hearing was provided to this Court.
2
  Miller filed a motion for a delayed appeal with this Court, but we denied this motion. State v. Miller
(February 17, 2005), 3rd Dist. No. 12-05-02.

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Case No. 12-10-13



parties an opportunity to make a statement regarding the issue and then determined

that Miller was subject to five years of mandatory PRC.3

         {¶4} This appeal followed, and Miller now asserts two assignments of

error.

                                ASSIGNMENT OF ERROR I

         THE TRIAL COURT ERRED WHEN IT FAILED TO
         CONDUCT A RE-SENTENCING HEARING DE NOVO AS
         REQUIRED BY LAW, THEREBY, DENYING DEFENDANT
         HIS RIGHT TO DUE PROCESS AND EQUAL PROTECTION
         OF THE LAW AS AFFORDED BY THE U.S.
         CONSTITUTION’S FOURTEENTH AMENDMENT.

                               ASSIGNMENT OF ERROR II

         THE TRIAL COURT ERRED BY FAILING TO AFFORD
         APPELLANT HIS APPELLATE RIGHTS AS AFFORDED BY
         THE U.S., AND OHIO CONSTITUTIONS, THEREBY,
         VIOLATING APPELLANT’S RIGHT TO DUE PROCESS
         AND EQUAL PROTECTION OF THE LAW.

                                        First Assignment of Error

         {¶5} In his first assignment of error, Miller asserts that his sentence in 2003

was void and that he was entitled to a de novo sentencing hearing pursuant to State

v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, and State v.

Bezak, 112 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. Miller correctly

contends that in Bezak, the Ohio Supreme Court held that a trial court’s failure to

3
  We have only the September 8, 2010 judgment entry to rely upon as to what transpired as no transcript of
that hearing has been provided to this Court.


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Case No. 12-10-13



properly notify an offender of PRC for an offense results in a void sentence for

that offense, which requires a trial court to conduct an entirely de novo

resentencing hearing for that offense. Bezak, 2007-Ohio-3250, at ¶ 16. Miller

also correctly maintains that in Singleton, the Court determined that Bezak’s

requirement of a de novo resentencing hearing applied to sentences imposed prior

to the effective date of R.C. 2929.191 in July of 2006, but that the procedures

outlined in R.C. 2929.191 applied to sentences imposed after the statute’s effective

date. Singleton, 2009-Ohio-6434, at ¶ 35. Thus, Miller concludes that because he

was originally sentenced in 2003, he was entitled to a de novo resentencing.

       {¶6} However, on December 23, 2010, the Ohio Supreme Court issued its

decision in State v. Fischer, 2010-Ohio-6238. In Fischer, the Court held “that the

new sentencing hearing to which an offender is entitled under Bezak is limited to

proper imposition of postrelease control.” Id. at ¶ 29. In so doing, the Court

specifically noted that in its holding in Bezak it overlooked an important principle:

“when an appellate court concludes that a sentence imposed by a trial court is in

part void, only the portion that is void may be vacated or otherwise amended.” Id.

at ¶ 28. The Court further noted that in modifying Bezak, its decision in Fischer

was “more into line with legislative provisions concerning appellate review of

criminal sentences[,]” which allows an appellate court to, inter alia, increase,



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Case No. 12-10-13



reduce, or otherwise modify a sentence without remanding it for a trial court to

conduct a resentencing. Fischer, 2010-Ohio-6238, at ¶¶ 28-29.

       {¶7} In light of Fischer, we conclude that Miller was not entitled to a de

novo resentencing. To the contrary, the trial court was only obligated to correct its

erroneous advisement of PRC and to resentence him accordingly. As noted, the

trial court held a hearing regarding the proper notification of PRC, allowed the

parties to be heard as to the correct PRC notification, and then provided Miller

with the accurate notice of five years of mandatory PRC because he was convicted

of felony sex offenses, see R.C. 2967.28(B)(1). Thus, we do not find that the trial

court erred in its resentencing of Miller to properly impose five years of

mandatory PRC, and the first assignment of error is overruled.

                            Second Assignment of Error

       {¶8} Miller contends in his second assignment of error that the trial court

erred in failing to inform him of his appellate rights pursuant to Crim.R. 32(B),

specifically his right to have counsel appointed to him if he could not afford to

obtain counsel. We agree with Miller that a trial court is required to inform a

defendant convicted of a serious offense, such as a felony sex offense, of his right

to appeal or to seek leave to appeal the sentence imposed, including the right to

court-appointed counsel if the defendant is unable to obtain appellate counsel. See

Crim.R. 32(B)(2).

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Case No. 12-10-13



        {¶9} Nevertheless, as previously noted, the record before this Court does

not include a transcript of the September 8, 2010 hearing. The burden is on an

appellant, who is claiming error in the proceedings below, to provide the appellate

court with a transcript of the proceedings. App.R. 9(B). Absent a complete and

adequate record, “[a]n appellate court reviewing a lower court’s judgment

indulges in a presumption of regularity of the proceedings below.”                              Hartt v.

Munobe, 67 Ohio St.3d 3, 7, 1993-Ohio-177, 615 N.E.2d 617; State v. Pringle, 3rd

Dist. No. 2-03-12, 2003-Ohio-4235, ¶ 10. Therefore, we must presume that the

trial court properly informed Miller of his right to appeal the portion of his

sentencing related to the PRC notification. See Fischer, 2010-Ohio-6238, at ¶ 30.4

        {¶10} However, we also note that in its brief to this Court, the State does

not dispute Miller’s contention that the trial court failed to advise him of his

appellate rights. Even assuming arguendo that the trial court did not advise Miller

of his right to appeal the very narrow issue of the proper PRC notification, Miller

has failed to demonstrate any prejudice. Clearly, Miller was aware of his right to

appeal, as he timely filed a notice of appeal with this Court. In addition, this

assignment of error reflects that, obviously, Miller became aware of a right to have


4
  In Fischer, the Court found that the “principles of res judicata, including the doctrine of the law of the
case, do not preclude appellate review. The sentence may be reviewed at any time, on direct appeal or by
collateral attack.” Fischer, 2010-Ohio-6238, ¶ ¶ 30, 40. However, “[t]he scope of an appeal from a
resentencing hearing in which a mandatory term of postrelease control is imposed is limited to issues
arising at the resentencing hearing.” Id. at ¶ 40.

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Case No. 12-10-13



counsel appointed to him if he could not obtain counsel on his own, yet the record

is devoid of any request by Miller for court-appointed counsel. Criminal Rule

32(B)(2) simply requires that Miller be informed of this right. However, it is

incumbent upon a defendant to assert this right by requesting that counsel be

appointed. Thus, any harm suffered by Miller is due to his failure to request that

counsel be appointed. Further, given the limited scope of review permitted by

Fischer to only issues arising at the resentencing for the proper imposition of PRC,

the undisputed fact that Miller was convicted of felony sex offenses, the

requirement of R.C. 2967.28(B)(1) that an offender convicted of a felony sex

offense have a mandatory period of PRC of five years imposed upon him, and the

trial court’s notification to Miller that he would have a mandatory five-year period

of PRC imposed upon him after being released from prison, there is simply no

issue to appeal, regardless of whether Miller had counsel or not. Accordingly, the

second assignment of error is overruled.

       {¶11} For all of these reasons, the judgment of the Common Pleas Court of

Putnam County, Ohio, is affirmed.

                                                               Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr



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