[Cite as State v. Tyson, 2012-Ohio-712.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Julie A. Edwards, J.
-vs-
                                                   Case No. 2011CA00177
FRANK E. TYSON

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2000-CR-0849


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         February 21, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO,                               FRANK E. TYSON, PRO SE
PROSECUTING ATTORNEY,                          Inmate No. 397-251
STARK COUNTY, OHIO                             Mansfield Correction Institution
                                               P.O. Box 788
By: RENEE M. WATSON                            Mansfield, Ohio 44901
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2011CA00177                                                          2

Hoffman, J.


      (¶1)    Defendant-appellant Frank E. Tyson appeals the July 11, 2011 Judgment

Entry entered by the Stark County Court of Common Pleas denying his motion for de

novo resentencing. Plaintiff-appellee is the state of Ohio.

                                 STATEMENT OF THE CASE

      (¶2)    On July 28, 2000, the Stark County Grand Jury indicted Appellant on one

count of kidnapping, in violation of R.C. 2905.01, a felony of the second degree; one

count of burglary, in violation of R.C 2911.12, a felony of the second degree; one count

of failure to comply with the order or signal of a police officer, in violation of R.C.

2921.331, a felony of the third degree; one count of receiving stolen property, in

violation of R.C. 2913.51, a felony of the fourth degree; and one count of grand theft of

a motor vehicle, in violation of R.C 2913.02, a felony of the fourth degree. Appellant

appeared for arraignment on August 4, 2000, and entered a plea of not guilty to the

charges.

      (¶3)    The matter proceeded to jury trial on October 26, 2000.1 After hearing all

the evidence and deliberations, the jury found Appellant guilty of all of the charges

contained in the Indictment. The trial court sentenced Appellant to an aggregate prison

term of twenty-four (24) years. The trial court memorialized Appellant's convictions and

sentence via Judgment Entry filed November 6, 2000. Appellant appealed his

convictions and sentence to this Court. This Court affirmed Appellant's convictions and

sentence. State v. Tyson, Stark App. No.2000CA00361, 2001-Ohio-1382.

1
  For a complete recitation of the facts underlying Appellant's convictions, see State v.
Tyson, Stark App. No.2000CA00361, 2001-Ohio-1382; and State v. Tyson, Stark App.
No.2008CA00068, 2009-Ohio-104.
Stark County, Case No. 2011CA00177                                                        3


       (¶4)   On November 26, 2007, Appellant filed a “Motion for Criminal Rule 33(B)

‘Unavoidably Prevented’ Findings and for New Trial.” Therein, Appellant claimed he was

unavoidably prevented from timely filing his motion for a new trial, and also was

unavoidably prevented from discovering the newly discovered evidence upon which he

based such motion. Via Judgment Entry filed on March 11, 2008, the trial court denied

Appellant's motion, finding Appellant failed to show by clear and convincing evidence

any valid reason for the extensive delay in filing his motion for new trial. The trial court

also found Appellant had not timely presented the issue of the videotape and the

affidavit, and failed to meet his burden of proving he was unavoidably prevented from

timely discovering this evidence. Appellant appealed the trial court's decision to this

Court. This Court affirmed the trial court's decision, finding “appellant failed to show by

clear and convincing evidence that he was unavoidably prevented from timely discovery

of the ‘newly discovered’ evidence”. State v. Tyson, supra.

       (¶5)   On June 17, 2008, Appellant filed a petition for post-conviction relief.

Therein, Appellant fully incorporated his motion for new trial. Via Judgment Entry filed

October 17, 2008, the trial court overruled the petition, finding Appellant “failed to meet

all of the jurisdictional requirements set forth in R.C. 2953.23(A) and, therefore, this

Court is without jurisdiction to consider Tyson's untimely petition for post-conviction

relief.” October 17, 2008 Judgment Entry at 5. This Court affirmed the denial of the

petition for post-conviction relief via Opinion and Judgment Entry of January 26, 2009.

State v. Tyson Stark App. No. 2008 CA 00253.
Stark County, Case No. 2011CA00177                                                    4


      (¶6)     On August 11, 2010, Appellant filed a motion for resentencing with proper

post-release control notification.   On October 5, 2010, the trial court scheduled the

matter for a hearing on post-release control.

      (¶7)     On May 20, 2011, the trial court conducted a limited resentencing hearing

on the issue of post-release control. At the hearing, Appellant was notified of the term

of post-release control, to wit: Upon release from prison, Appellant was advised he is

ordered to serve a mandatory period of three years of post-release control on each

counts one, two and three, pursuant to R.C. 2967.28(B) and an optional period of up to

three years of post-release control at the discretion of the Parole Board on counts four

and five, pursuant to R.C. 2967.28(B). This period of post-release control was imposed

as part of Appellant’s criminal sentence at the sentencing hearing, pursuant to R.C.

2929.19.     Appellant was notified the terms of post-release control imposed in the

sentence should be served concurrently, as required by R.C. 2967.28(F)(4)(c), and if he

commits another felony while subject to this period of control or supervision he may be

subject to an additional prison term consisting of the maximum period of unserved time

remaining on post-release control.

      (¶8)     Appellant filed a motion for resentencing de novo on May 20, 2011. The

trial court denied the motion via Judgment Entry of July 11, 2011.       Appellant now

appeals, assigning as error:

      (¶9)     “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

FOR A FULL DE NOVO RESENTENCING HEARING, UNDER STATE V. SINGLETON

124 Ohio St.3d 173, 2009-Ohio-6434-920 N.E.2d 958.”
Stark County, Case No. 2011CA00177                                                         5


       (¶10) In the sole assignment of error, Appellant asserts the trial court erred in

not conducting a de novo sentencing hearing in light of the trial court’s failure to properly

impose post-release control.     Specifically, Appellant asserts the trial court failed to

properly advise him of the consequences of violating his post-release control during his

original sentencing hearing.

       (¶11) In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the Ohio

Supreme Court held

       (¶12) “We similarly hold that when a judge fails to impose statutorily mandated

post-release control as part of a defendant's sentence, that part of the sentence is void

and must be set aside. [Footnote omitted.] Neither the Constitution nor common sense

commands anything more.

       (¶13) “This principle is an important part of the analysis of void sentences that

we have not focused upon in prior cases involving post-release control, including Bezak,

114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. Thus, we reaffirm the portion of

the syllabus in Bezak that states ‘[w]hen a defendant is convicted of or pleads guilty to

one or more offenses and post-release control is not properly included in a sentence for

a particular offense, the sentence for that offense is void,’ but with the added proviso

that only the offending portion of the sentence is subject to review and correction.

       (¶14) “However, we now modify the second sentence in the Bezak syllabus as

ill-considered. That sentence states that the offender is entitled to a new sentencing

hearing for the offense for which post-release control was not imposed properly. 114

Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. It does not recognize a principle that

we overlooked in Bezak: when an appellate court concludes that a sentence imposed
Stark County, Case No. 2011CA00177                                                       6


by a trial court is in part void, only the portion that is void may be vacated or otherwise

amended.

       (¶15) “Therefore, we hold that the new sentencing hearing to which an offender

is entitled under Bezak is limited to proper imposition of post-release control. In so

holding, we come more into line with legislative provisions concerning appellate review

of criminal sentences.***”

       (¶16) Pursuant to Fischer, supra, Appellant was entitled to a hearing limited to

the correction of the imposition of post-release control. Appellant was convicted of a

felony of the second degree, a felony of the third degree and two felonies of the fourth

degree; therefore, subject to both a discretionary period of post-release control and a

mandatory period of post-release control, each for a period of three years. On May 20,

2011, the trial court properly conducted a hearing limited to the proper imposition of

post-release control.2




2
  Appellant’s claim he was not properly advised of the consequences of violating the
terms of PRC at his original sentencing hearing is barred from review herein by res
judicata.
Stark County, Case No. 2011CA00177                                          7


      (¶17) Appellant’s sentence in the Stark County Court of Common Pleas is

affirmed.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur                    s/ William B. Hoffman _________________
                                      HON. WILLIAM B. HOFFMAN


                                      s/ W. Scott Gwin _____________________
                                      HON. W. SCOTT GWIN


                                      s/ Julie A. Edwards___________________
                                      HON. JULIE A. EDWARDS
Stark County, Case No. 2011CA00177                                                  8


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
FRANK E. TYSON                             :
                                           :
       Defendant-Appellant                 :         Case No. 2011CA00177


       For the reasons stated in our accompanying Opinion, Appellant’s sentence in the

Stark County Court of Common Pleas is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
