[Cite as State v. Bobbitt, 2019-Ohio-4005.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                     Court of Appeals No. E-19-023

        Appellee                                  Trial Court No. 2011-CR-423

v.

Shedrick H. Bobbitt                               DECISION AND JUDGMENT

        Appellant                                 Decided: September 30, 2019

                                              *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Anthony A. Battista III, Assistant Prosecuting Attorney,
        for appellee.

        Shedrick H. Bobbitt, pro se.

                                              *****

        SINGER, J.

        {¶ 1} In this accelerated appeal, appellant, Shedrick Bobbitt, appeals the

March 18, 2019 judgment of the Erie County Court of Common Pleas denying his motion

to vacate his postrelease control. As appellant was not properly informed of his

mandatory postrelease control sanction, we reverse.
                           Facts and Procedural Background

       {¶ 2} On October 4, 2011, appellant was indicted on one count of felonious

assault, a felony of the second degree. On July 24, 2011, appellant entered a guilty plea

to the charge. The plea form states that appellant “shall have up to 2 years of Post

Release Control on each count.” Appellant was sentenced to a three-year prison term to

run consecutively with other unrelated cases. In the sentencing entry, the trial court

stated that appellant “shall be supervised after leaving prison for a period up to 3 years of

post release control.”

       {¶ 3} Appellant brings forth one assignment of error:

              The trial court erred by denying Mr. Bobbitt’s motion to terminate

       his void postrelease control supervision.

                                         Standard

       {¶ 4} Our review of a felony sentence is governed by R.C. 2953.08(G)(2). State v.

Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11. R.C. 2953.08(G)(2)

provides that an appellate court is permitted to “increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand the

matter to the sentencing court for resentencing * * * if it clearly and convincingly finds”

that either the record does not support the sentencing court’s findings under the

applicable sentencing statutes or that the sentence is otherwise “contrary to law.”

       {¶ 5} “Each sentence to a prison term, other than a term of life imprisonment * * *

shall include a requirement that the offender be subject to a period of post-release control




2.
imposed by the parole board after the offender’s release from such imprisonment.” R.C.

2967.28(B). “[A] period of post-release control required by this division for an offender

shall be one of the following periods: * * * For a felony of the second degree that is not a

felony sex offense, three years.” R.C. 2967.27(B)(2).

       {¶ 6} “It is settled that ‘a trial court has a statutory duty to provide notice of

postrelease control at the sentencing hearing’ and that ‘any sentence imposed without

such notification is contrary to law.’” State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-

2927, 85 N.E.3d 700, ¶ 8, quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085,

817 N.E.2d 864, ¶ 23. The trial court is required to incorporate these notices into its

journal entry. Id.

       {¶ 7} “[I]n order to validly impose postrelease control, the trial court must

incorporate into its sentencing entry the notifications it provides to the offender relating

to postrelease control at the sentencing hearing but that it need not repeat those

notifications verbatim in the entry.” Grimes at ¶ 13. A compliant sentencing entry must

provide the parole board the information it needs to execute the postrelease control

portion of the sentence. Id.

       {¶ 8} A technical deficiency in the sentencing entry does not render the entry void

where the record as a whole reveals the trial court satisfied all of the statutory

requirements for imposing postrelease control. State v. Boone, 10th Dist. Franklin No.

2012-Ohio-3653, 975 N.E.2d 546, ¶ 29, citing State v. Williams, 10th Dist. Franklin No.

10AP-922, 2011-Ohio-6231, ¶ 21.




3.
       {¶ 9} “Even though the phrase ‘up to’ has ‘discretionary’ connotations, mistaken

use of such language does not render defendant’s post-release control notification void.”

(Citations omitted). Id. at ¶ 30. “[W]hen a term of post-release control is mandatory, the

use of ‘up to’ language does not necessarily invalidate the imposition of post-release

control. Although a sentencing court must comply with statutory requirements, the

Supreme Court has not prescribed a ‘magic’ words test for imposing post-release control

* * *.” Williams at ¶ 19.

       {¶ 10} The Williams court found that a reviewing court must look to the record as

a whole to determine if the notifications were properly given to a defendant. Id. The

Tenth District found that a plea form that notifies the defendant properly of postrelease

control and the consequences for violating postrelease control “along with any other

written or oral notification of post-release control provided, can be sufficient to satisfy

the statutory requirements regarding notification at the sentencing hearing or post-release

control and the consequences for violating that supervision.” Id. at ¶ 17.

       {¶ 11} “A trial court does not have the authority to resentence a defendant for the

purpose of adding a term of postrelease control as a sanction for a particular offense after

the defendant has already served the prison term for that offense.” State v. Holcroft, 137

Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 18. “[W]hen a judge fails to impose

statutorily mandated postrelease control as part of a defendant’s sentence, that part of the

sentence is void and must be set aside.” (Emphasis sic.) State v. Fischer, 128 Ohio St.3d

92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of syllabus.




4.
                                         Analysis

       {¶ 12} Appellant argues that the “up to” language was insufficient to inform

appellant that he had a mandatory postrelease control term of three years. Appellee

argues that appellant was on notice that he would be required to serve postrelease control

because the court ordered that he “shall” be subject to postrelease control.

       {¶ 13} Here, appellant was clearly required, per R.C. 2967.28(B)(2), to serve a

mandatory term of three years on postrelease control.

       {¶ 14} The plea form that appellant signed states that appellant must serve a term

of two years on postrelease control. This form is incorrect as appellant was subject to a

term of three years of postrelease control. Appellee states this was a spelling error,

handwritten number on the plea form is clearly a two.

       {¶ 15} The sentencing entry states he must serve a mandatory term of postrelease

control of “up to” three years. The language of “up to” is insufficient to inform appellant

of his mandatory term of postrelease control. See State v. Young, 11th Dist. Trumbull

No. 2011-Ohio-4018, ¶ 92 (“Although the trial court used the term ‘mandatory’ in its

sentencing entry, it again used the ‘up to’ three years language regarding postrelease

control. The language used at both the sentencing hearing and in the trial court’s

judgment entry does not adequately indicate that a three-year term of postrelease control

was mandatory.”); State v. Bolden, 5th Dist. Fairfield No. 17-CA-51, 2018-Ohio-2684,

¶ 9 (use of “up to” does not connote a mandatory sentence of postrelease control); State v.

Davis, 7th Dist. Belmont No. 15 BE 0034, 2016-Ohio-7319, ¶ 10 (“up to” three years of




5.
postrelease control was improper sentence because proper term is a mandatory term of

three years for a felony of the second degree). Therefore, we find that the sentencing

entry also failed to notify appellant of his mandatory term of postrelease control for a

period of three years.

       {¶ 16} Therefore, the trial court did not properly notify appellant of his

requirements for postrelease control at the time of sentencing. The portion of his

sentence relating to postrelease control is therefore void. The matter is remanded for a

new resentencing hearing limited to the imposition of postrelease control on those

charges under R.C. 2929.191(C).

       {¶ 17} Based on the record before us, it is unclear whether appellant has

completed his sentence for his conviction. If appellant has completed his prison sentence

for this conviction, nothing in this decision precludes appellant from asserting that the

trial court no longer has the authority to impose postrelease control under Holcroft, 137

Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382.

                                       Conclusion

       {¶ 18} On consideration whereof, the judgment of the Erie County Court of

Common Pleas is reversed in regards to the imposition of postrelease control. It is

ordered that appellee pay the court costs of this appeal pursuant to App.R. 24.

                                                                         Judgment reversed.




6.
                                                                      State v. Bobbitt
                                                                      C.A. No. E-19-023




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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