[Cite as State v. Falkenstein, 2011-Ohio-5188.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 96659


                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                              DONALD FALKENSTEIN
                                                        DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED
                                FOR CORRECTION


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-434255

        BEFORE: Boyle, J., Blackmon, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: October 6, 2011
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FOR APPELLANT

Donald Falkenstein, pro se
Inmate No. 451-824
Grafton Correctional Institution
2500 S. Avon-Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Thorin O. Freeman
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, J.:

      {¶ 1} Defendant-appellant, Donald Falkenstein, appeals the trial court’s judgment

denying his “motion to set aside/vacate or in the alternat[ive] resentence him on an

otherwise void sentence.”   We find merit to his appeal and reverse and remand.

      {¶ 2} In 2003, Falkenstein was convicted of 41 counts of rape of a child under the

age of 13.   The trial court sentenced him to consecutive life terms in prison, with the
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parole eligibility after 20 years.   This court affirmed Falkenstein’s convictions in State v.

Falkenstein, 8th Dist. No. 83316, 2004-Ohio-2561.

       {¶ 3} In October 2010, Falkenstein filed a pro se “motion to set aside/vacate or in

the alternat[ive] resentence him on an otherwise void sentence,” arguing that his sentence

was void because the trial court failed to advise him of the mandatory period of

postrelease control and of the consequences of a postrelease-control violation.             In the

sentencing entry, the trial court had notified Falkenstein that postrelease control was part

of his “prison sentence for the maximum period allowed for the above felony(s) under

R.C. 2967.28.” The journal entry said nothing of a postrelease-control violation.1

       {¶ 4} The state filed a response to Falkenstein’s motion, agreeing that Falkenstein

had not been properly advised of postrelease control and further agreeing that he should

be resentenced.

       {¶ 5} The trial court, however, denied Falkenstein’s motion without a hearing

because “defendant [was] serving a life sentence.”        Falkenstein now argues that the trial

court erred when it denied his motion.      We agree.

       {¶ 6} R.C. 2967.28 provides:

       {¶ 7} “(B) Each sentence to a prison term for felony of the first degree, *** [or]

for a felony sex offense *** shall include a requirement that the offender be subject to a



        Falkenstein did not file a transcript of the sentencing hearing with this court, nor did he
       1


request one. In fact, he stated that a transcript was not necessary. Thus, this court must presume
that Falkenstein was properly informed about postrelease control and the possible sanctions for
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period of post-release control imposed by the parole board after the offender’s release

from imprisonment. *** Unless reduced by the parole board pursuant to division (D)

of this section when authorized under that division, a period of post-release control

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

        {¶ 8} “(1) For a felony of the first degree or for a felony sex offense, five

years[.]”

        {¶ 9} In      State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124,

2010-Ohio-2671, 931 N.E.2d 110, the Ohio Supreme Court concluded that postrelease

control must be imposed upon a defendant who receives an indefinite sentence of life in

prison with parole eligibility for a conviction of rape in violation of R.C. 2907.02. Id. at

¶14. Of paramount concern to the court was the legislative intent in enacting R.C.

2967.28.     The Supreme Court found that the statute’s plain, unambiguous language

expressly requires the inclusion of a mandatory postrelease control term of five years for

each prison sentence for felonies of the first degree and felony sex offenses.   Id.

        {¶ 10} Carnail was convicted of rape and sentenced to an indefinite sentence of life

in prison with parole eligibility after ten years.         The Supreme Court, however,

determined that “[b]ecause R.C. 2967.28(B)(1) is phrased in broad, sweeping language,”

the courts “must accord it broad, sweeping application.”     Id. at ¶20.   Thus, “[a]lthough

it could be implied from [R.C. 2967.28(F)] that postrelease control is unnecessary for


violating it at his sentencing hearing.
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indefinite or life sentences, there is no specific language in either this or other provisions

that modifies the express language in R.C. 2967.28(B)(1) requiring postrelease control.”

Id. “That is, R.C. 2967.28(B)(1) is not expressly limited to definite sentences; instead, it

applies broadly to ‘[e]ach sentence to a prison term for a felony of the first degree.’”   Id.

       {¶ 11} Because Falkenstein was sentenced on both a first-degree felony and a sex

offense, five years postrelease control is mandatory, and the trial court erred when it

denied his motion. McCormick at ¶14.        The state concedes as much.

       {¶ 12} Falkenstein now argues that he is entitled to a resentencing hearing pursuant

to R.C. 2929.191(C), which expressly requires a trial court to conduct a hearing in

accordance with this provision before correcting a judgment of conviction with improper

postrelease control.     He argues that in State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court does not “indicate that any of

the provisions in R.C. 2929.191 are unenforceable or inapplicable.”

       {¶ 13} The procedures in R.C. 2929.191, however, only apply to sentences that

were imposed on or after July 11, 2006.            State v. Singleton, 124 Ohio St.3d 173,

2009-Ohio-6434, 920 N.E.2d 958, paragraph two of the syllabus. The Ohio Supreme

Court expressly stated in Singleton that for criminal sentences, which failed to properly

include postrelease control and were imposed before July 11, 2006, as Falkenstein’s

sentence was, trial courts shall conduct a de novo sentencing hearing in accordance with

Supreme Court precedents.      Id. at paragraph one of the syllabus; see State v. Bezak, 114
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Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961 (an offender is entitled to a de novo

sentencing hearing for the trial court to correct a sentence that omitted notice of

postrelease control).

       {¶ 14} In Fischer, 128 Ohio St.3d 92, however, the Ohio Supreme Court modified

Bezak, and held that “the new sentencing hearing to which an offender is entitled *** is

limited to proper imposition of postrelease control,” not a de novo sentencing hearing.

Fischer at paragraph two of the syllabus.     The Supreme Court further made clear that

remand for resentencing “is just one arrow in the quiver.”   Id. at ¶29.   It explained that

“R.C. 2953.08(G)(2) also provides that an appellate court may ‘increase, reduce or

otherwise modify a sentence *** or may vacate the sentence and remand the matter to the

sentencing court for resentencing.’      (Emphasis added.)     Correcting a defect in a

sentence without a remand is an option that has been used in Ohio and elsewhere for

years in cases in which the original sentencing court, as here, had no sentencing

discretion.   See, e.g., State v. Winters (July 22, 1982), 8th Dist. No. 42799; State v.

Coughlin, 11th Dist. No. 2006-A-0026, 2007-Ohio-897; State v. Gimbrone, 2d Dist. No.

23062, 2009-Ohio-6264; People v. Kelly (1965), 66 Ill.App.2d 204, 211, 214 N.E.2d 290;

State v. Sheppard (A.D.1973), 125 N.J.Super. 332, 336, 310 A.2d 731; Harness v. State

(2003), 352 Ark. 335, 339, 101 S.W.3d 235.” Fischer at ¶29.      Indeed, “[c]orrecting the

defect without remanding for resentencing can provide an equitable, economical, and

efficient remedy for a void sentence.”   Id. at ¶30.
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       {¶ 15} Accordingly,    under R.C. 2953.08(G)(2), we modify and correct

Falkenstein’s postrelease control from “the maximum period allowed *** under R.C.

2967.28” to “a mandatory term of five years postrelease control.”

       {¶ 16} Judgment reversed, sentence is modified, and case remanded.            Upon

remand, the trial court is instructed to correct the sentencing entry to reflect the proper

period of mandatory postrelease control, i.e., five years, and further, to include the

consequences for violating the provisions of postrelease control.

       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

PATRICIA ANN BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR
