[Cite as State v. Clay, 2011-Ohio-2426.]




               IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :        C.A. CASE NO. 2010 CA 25

v.                                                  :        T.C. NO.   07CR518

JAMES H. CLAY                                       :        (Criminal appeal from
                                                              Common Pleas Court)
        Defendant-Appellant                  :

                                                    :

                                            ..........

                                            OPINION

                          Rendered on the    20th   day of      May        , 2011.

                                            ..........

ANTHONY E. KENDELL, Atty. Reg. No. 0067242, Assistant Prosecuting Attorney, 201
West Main Street, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

JAMES H. CLAY, #588915, Chillicothe Correctional Institute, P. O. Box 5500,
Chillicothe, Ohio 45601
        Attorney for Defendant-Appellant

                                            ..........

DONOVAN, J.

        {¶ 1} This matter is before the Court on the pro se Notice of Appeal of James H.

Clay, filed August 4, 2010. Clay was indicted, on December 6, 2007, on one count of

sexual battery, in violation of R.C. 2907.03(A)(7), a felony of the third degree. Clay

entered a plea of not guilty, and following a jury trial, Clay was found guilty on August 28,
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2008. On October 9, 2008, Clay filed a motion to set aside the verdict and dismiss the

indictment. The State opposed the motion, and Clay filed a reply. On October 10, 2008,

the trial court overruled Clay’s motion. The trial court sentenced Clay to a five year

maximum sentence on October 16, 2008. We affirmed the judgment of the trial court.

State v. Clay, Miami App. No. 08CA33, 2009-Ohio-5608.

       {¶ 2} On May 24, 2010, Clay filed a “Motion to Correct Void Sentence,” which the

State opposed. After a hearing, the trial court overruled the motion.

       {¶ 3} Clay asserts one assignment of error herein as follows:

       {¶ 4} “THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION

WHEN [IT] OVERRULED APPELLANT’S MOTION TO VOID SENTENCE.”

       {¶ 5} At the hearing on the motion to correct his sentence, Clay asserted that his

sentencing entry failed to properly advise him regarding mandatory post-release control, and

he asserted that he was “under the assumption that [post-release control] was optional.”

       {¶ 6} “‘R.C. 2967.28 provides that every prison sentence for a felony of the first

degree or a felony sex offense shall include a mandatory five-year period of post release

control. State v. Shackleford, Montgomery App. No. 22891, 2010-Ohio-845. A trial court is

required to notify the offender at the sentencing hearing about post-release control, and is

further required to incorporate the specifics of that notice into its judgment of conviction

setting forth the sentence the court imposed.’”      (Citations omitted).   State v. Pointer,

Montgomery App. No. 24210, 2011-Ohio-1419, ¶ 23, quoting State v. Renner, Montgomery

App. No. 24019, 2011-Ohio-502.

       {¶ 7} As the trial court correctly noted at the hearing, a review of the sentencing
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entry reveals the following language regarding post-release control:

       {¶ 8} “* * *

       {¶ 9} “Once Defendant is released from his term of incarceration at the Ohio

Department of Rehabilitation and Correction, he has been notified that he is subject to

mandatory Post-Release Control for five years ordered by the Adult Parole Authority.

       {¶ 10} “* * *

       {¶ 11} “After prison release, if post-release control is imposed, for violating

post-release control conditions, the adult parole authority or parole board could impose a

more restrictive or longer control sanction, return defendant to prison for up to nine months

for each violation, up to a maximum of 50 percent of the stated term.”

       {¶ 12} We note, as did the trial court, that Clay signed a document captioned

“Notification to Defendant Upon Sentencing” that provides in part: “(A). The undersigned

Defendant in the above-captioned case, being represented by counsel, by signing below

certifies that he/she has read this document and further does acknowledge notification,

knowledge, and understanding of the following components of sentencing which shall apply

if the Court determines at this sentencing hearing that a prison term is necessary or required

in the above-captioned case.

       {¶ 13} “ * * *

       {¶ 14} “(2) That if the Defendant is being sentenced * * * for a felony sex offense *

* * that a period of post-release control pursuant to Section 2967.28 of the Revised Code

will be imposed following the Defendant’s release.”

       {¶ 15} Finally, we note that the trial court found at the hearing on Clay’s motion to
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correct his sentence, “ * * * at Page 14 of the transcript on sentencing the transcript reads,

‘It’s the order of the Court that the Defendant shall serve five years in prison, pay the costs

of the action. He’s to be placed on five years post-release control. * * * .”

       {¶ 16} Since the record demonstrates that Clay was properly notified regarding

post-release control, the judgment of the trial court overruling his “Motion to Correct Void

Sentence” is affirmed.




                                         ..........

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Anthony E. Kendell
James H. Clay
Hon. Christopher Gee
