[Cite as State v. Thompson, 2011-Ohio-1802.]



         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                                    No. 95282


                                   STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.

                               BOBBY THOMPSON
                                               DEFENDANT-APPELLANT

                                 JUDGMENT:
                           REVERSED AND REMANDED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-486467

              BEFORE:             Blackmon, J., Kilbane, A.J., and Rocco, J.

             RELEASED AND JOURNALIZED:                      April 14, 2011



                                                -i-
                                    2
APPELLANT

Bobby Thompson, Pro Se
North Central Correctional Institution
P.O. Box 1812
Marion, Ohio 43301

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

T. Allan Regas
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, J.:

      {¶ 1} Appellant Bobby Thompson appeals, pro se, the trial court’s

denial of his motion to vacate a void judgment and assigns the following

errors for our review:

      “I. Defendant’s sentence is void because judgment entry
      does not state that defendant could receive up to half of
      his sentence in sanction for violations of postrelease
      control as stated in R.C. 2967.28(F)(3) State v. Simpkins,
      (2008), 117 Ohio St.3d 420, 884 N.E.2d 568.”

      “II. Defendant was denied due process and equal
      protection under the law when he was denied copy of
      transcript; Greene v. Brigano, (6th Cir.1997), 123 F.3d 917;
      U.S. Const. Amend. 14 OH Rules App.Proc.R. 16(A)(7),(D).”
                                          3
      {¶ 2} Having reviewed the record and pertinent law, we reverse the

trial court’s decision, modify Thompson’s sentence, and remand for the

limited purpose of correcting the journal entry. The apposite facts follow.

      {¶ 3} On April 12, 2007, following a jury trial, Thompson was convicted

of rape and subsequently determined to be a sexual predator. On May 22,

2007, the trial court sentenced Thompson to seven years of imprisonment and

advised him that he was subject to five years of postrelease control.

Thompson appealed his conviction, which we affirmed in State v. Thompson,

Cuyahoga App. No. 89965, 2008-Ohio-3019.

      {¶ 4} On May 17, 2010, Thompson filed a motion to vacate the

judgment as void on the grounds that the trial court’s sentencing entry did

not indicate the penalty for violating postrelease control. On May 20, 2010,

the trial court denied Thompson’s motion to vacate void judgment.

Thompson now appeals.

                                   Postrelease Control

      {¶ 5} In the first assigned error, Thompson argues his sentence is void

and should be vacated because the trial court failed to advise him that he

could be returned to prison for up to half of his original sentence if he violated

postrelease control.      The record confirms Thompson’s claim and the state

concedes his claim.1


      1
          R.C. 2929.19(B)(3)(c) requires the trial court to notify an offender who is
                                         4

      {¶ 6} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942

N.E.2d 332, the Ohio Supreme Court recently recognized that appellate

courts do not have to remand a sentence that includes an improper period of

postrelease control, calling remand “just one arrow in the quiver.” Id. at ¶29.

Instead, it acknowledged that an appellate court’s discretion to correct “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.” Id.             Indeed, the Supreme Court

explained, “[c]orrecting the defect without remanding for resentencing can

provide an equitable, economical, and efficient remedy for a void sentence[,]”

in cases where “a trial judge does not impose postrelease control in

accordance with statutorily mandated terms.” Id. at ¶30.

      {¶ 7} Consequently, under R.C. 2953.08(G)(2), we modify and correct

Thompson’s postrelease control to apprise him of the penalty for violating

same and remand to the trial court with instructions to correct the sentencing




convicted of a first degree felony that he will be subject to a period of postrelease
control, pursuant to R.C. 2967.28, following his release from prison. State v.
Greenleaf, 9th Dist. No. 21370, 2003-Ohio-5901. Additionally, R.C. 2929.19(B)(3)(e)
requires the lower court to notify the offender of the resulting consequences upon
violation of the postrelease control sanctions. Id. See, also, State v. Wells, Cuyahoga
App. No. 94956, 2011-Ohio-723. (Advising defendant that violation of the conditions
of postrelease control may result in the Parole Board imposing a prison term of up
to one-half of the stated prison term originally imposed.)
                                         5
entry to reflect this advisement.       Accordingly, we sustain the first assigned

error.

         {¶ 8} Our disposition of the first assigned error renders the remaining

error moot.

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

Upon remand, the trial court is instructed to correct the sentencing entries to

reflect the proper advisement regarding the penalty for violating postrelease

control.

         It is ordered that appellant recover of appellee its 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.



PATRICIA ANN BLACKMON, JUDGE

MARY EILEEN KILBANE, A.J., and
KENNETH A. ROCCO, J., CONCUR
