[Cite as State v. Bennett, 2011-Ohio-2236.]


                                        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. Patricia A. Delaney, J.
-vs-
                                                  Case No. 2010CA00200
JOHN C. BENNETT, JR.

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2009CR0490


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        May 9, 2011


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO,                               ROBERT G. ABNEY
PROSECUTING ATTORNEY,                          Abney Law Office, LLC
STARK COUNTY, OHIO                             116 Cleveland Ave. N.W., Suite 500
                                               Canton, Ohio 44702
BY: RENEE WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2010CA00200                                                          2

Hoffman, J.


        {¶1}   Defendant-appellant John C. Bennett, Jr. appeals the denial of his motion

to withdraw his guilty plea in the Stark County Court of Common Pleas.              Plaintiff-

appellee is the State of Ohio.

                                  STATEMENT OF THE CASE1

        {¶2}   On April 21, 2009, Appellant was indicted on charges of aggravated

robbery, aggravated burglary, kidnapping and felonious assault.         On June 8, 2009,

Appellant entered a plea of guilty to the charges.

        {¶3}   The trial court sentenced Appellant to seven years on each count, with

each seven year commitment for counts two, three, and four to be served concurrent

with the seven year commitment on count one.            The trial court indicated it would

consider judicial release after a five year period. The trial court’s sentencing entry failed

to properly inform Appellant of the length of post release control. The trial court notified

Appellant post-release control was mandatory for up to a maximum of five years.

        {¶4}   On April 5, 2010, Appellant moved the trial court to withdraw his guilty

plea.   The trial court scheduled a hearing on the motion, and also scheduled a

resentencing hearing.

        {¶5}   On June 14, 2010, the trial court conducted a hearing to address

Appellant’s motion to withdraw his plea and for resentencing pursuant to R.C. 2929.191.

        {¶6}   Via Judgment Entry of June 28, 2010, the trial court denied Appellant’s

motion to withdraw his plea. Via separate Judgment Entry of June 28, 2010, the trial



1
 A rendition of the statement of facts is unnecessary to our disposition of the within
appeal.
Stark County, Case No. 2010CA00200                                                       3


court resentenced Appellant pursuant to R.C. 2929.191.           The trial court notified

Appellant he had been resentenced to serve a mandatory five year term of post-release

control on counts one, two and three and a mandatory three year term of post-release

control on count four pursuant to R.C. 2967.28(B). The terms of post-release control

were ordered to be served concurrently.

       {¶7}   Appellant now appeals the trial court’s denial of his motion to withdraw his

plea, assigning as error:

       {¶8}   “I. THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION

TO WITHDRAW HIS FORMER PLEA OF GUILTY.”

       {¶9}   Appellant asserts he filed his motion to withdraw his plea of guilty prior to

resentencing; therefore, the motion should be freely and liberally granted. State v.

Peterseim (1979), 68 Ohio App.2d 211; State v. Xie (1992), 62 Ohio St.3d 521.

       {¶10} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Court held

sentences imposed after July 11, 2006, the effective date of R.C. 2929.191, where the

trial court failed to properly impose post-release control, the court was to follow the

remedial procedures set forth in the statute.      Such remedial procedures include a

hearing limited to the imposition of the post-release control and a corrected judgment

entry. Id.

       {¶11} In State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, the Court

examined the effect of an improper post-release control notification on a post-sentence

motion to withdraw a guilty plea. The Court concluded because Ketterer was sentenced

after July 11, 2006, his sentence was not void, as the statute set forth the proper
Stark County, Case No. 2010CA00200                                                       4


remedial procedure. The court thus found the motion to withdraw his guilty plea was

properly denied.

       {¶12} However, even assuming the court failed to properly impose post-release

control, only that portion of the sentence would be deemed “void.” State v. Fischer, 128

Ohio St.3d 92, 2010–Ohio–6238, ¶ 26. In Fischer, the Court stated:

       {¶13} “We similarly hold that when 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. (Footnote omitted.) Neither the Constitution nor common sense

commands anything more.

       {¶14} “This principle is an important part of the analysis of void sentences that

we have not focused upon in prior cases involving postrelease 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 postrelease 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.

       {¶15} “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 postrelease 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

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

amended.
Stark County, Case No. 2010CA00200                                                         5


       {¶16} “Therefore, we hold that the new sentencing hearing to which an offender

is entitled under Bezak is limited to proper imposition of postrelease control. In so

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

of criminal sentences.”

       {¶17} Accordingly, we find Appellant’s convictions and the remainder of

Appellant’s original sentence remained valid, and Appellant’s motion to withdraw plea is

properly addressed as a post-sentence motion.

       {¶18} Ohio Criminal Rule 32.1 governs motions to withdraw pleas, and reads:

       {¶19} “A motion to withdraw a plea of guilty or no contest may be made only

before sentence is imposed; but to correct manifest injustice the court after sentence

may set aside the judgment of conviction and permit the defendant to withdraw his or

her plea.”

       {¶20} Appellant has not demonstrated, nor does the record reflect, a manifest

injustice resulted from the trial court’s denial of Appellant’s motion to withdraw his guilty

plea. Accordingly, Appellant’s sole assignment of error is overruled.

       {¶21} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

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


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


                                              s/ Patricia A. Delaney _________________
                                              HON. PATRICIA A. DELANEY
Stark County, Case No. 2010CA00200                                                6


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


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
JOHN C. BENNETT, JR.                      :
                                          :
       Defendant-Appellant                :        Case No. 2010CA00200


       For the reasons stated in our accompanying Opinion, the judgment of 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/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY
