[Cite as State v. Williams, 2011-Ohio-3267.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 96323




                                        STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.


                                     DENNIS WILLIAMS

                                               DEFENDANT-APPELLANT




                                     JUDGMENT:
                               AFFIRMED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-432748

        BEFORE: Kilbane, A.J., Sweeney, J., and Jones, J.
       RELEASED AND JOURNALIZED: June 30, 2011

APPELLANT

Dennis Williams, Pro Se
Inmate No. 453-475
Grafton Correctional Institution
2500 S. Avon-Belden Road
Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Mary McGrath
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, A.J.:

       {¶ 1} This appeal is before the court on the accelerated docket pursuant

to App.R. 11.1 and Loc.App.R. 11.1.

       {¶ 2} Defendant-appellant, Dennis Williams (Williams), pro se, appeals

the trial court’s denial of his motion to correct a void sentence.     For the

reasons that follow, we remand the case for the limited purpose to correct the

sentencing entry regarding postrelease control.
     {¶ 3} The facts of this case were previously set forth by this court in

State v. Williams, Cuyahoga App. No. 85858, 2005-Ohio-4422, as follows:

     “On January 22, 2003, the Cuyahoga County Grand Jury
     jointly indicted Williams and his co-defendant, Lawrence
     Royster, on eight counts: two counts for aggravated
     murder with felony-murder specifications, one count for
     aggravated arson, two counts for aggravated robbery, and
     three counts for intimidation. All of the counts had one-
     and three-year firearm specifications attached.      The
     counts arose from Williams setting fire to Lawrence
     Royster’s home to cover up the murder of Kenyard Drake.

     On June 6, 2003, Williams entered a guilty plea to an
     amended count of involuntary manslaughter, one count of
     aggravated arson, and one count of aggravated robbery.
     He also pled to the attached three-year firearm
     specifications. The remaining counts were nolled.

     Williams filed a motion to vacate his plea prior to being
     sentenced, which was denied. On October 6, 2003, the
     trial court sentenced Williams to ten years on the
     involuntary manslaughter count, six years on the
     aggravated arson count, two years on the aggravated
     robbery count, and a mandatory three years on each of the
     firearm specifications, which were merged.           The
     sentences were imposed consecutively for a total of
     twenty-one years.

     Williams filed a notice of appeal from his plea and
     sentence. However, he thereafter voluntarily dismissed
     the appeal.     [State v. Williams (December 22, 2003),
     Cuyahoga App. No. 83706.] This court denied his motion
     to reinstate the appeal and motion to file a delayed appeal.
      Id. at ¶3-6.”

     {¶ 4} In September 2004, Williams filed another motion to withdraw

his guilty plea, which the trial court denied. In December 2004, he filed a
motion to correct his sentence, which the trial court also denied. This court

affirmed the trial court’s denial of his motion to correct his sentence, finding

that Williams’s claim cannot be considered because it is barred by res

judicata. Id. at ¶10.

        {¶ 5} Then, in December 2010, Williams filed another motion to correct

a void sentence in light of the Ohio Supreme Court’s rulings in State v. Bezak,

114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, and State v. Singleton,

124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, arguing that he is

entitled to a de novo sentencing hearing because the trial court failed to

properly notify him of postrelease control. The State opposed the motion,

arguing that Williams’s sentence is not void and may be corrected by a nunc

pro tunc journal entry. The trial court denied Williams’s motion in January

2011.

        {¶ 6} It is from this order that Williams now appeals, raising the

following two assignments of error for review.

        ASSIGNMENT OF ERROR ONE

        “The trial court committed reversible error when it failed
        to properly notify [Williams] that five years of postrelease
        control was mandatory in his case during his sentencing
        hearing on September 30, 2003 and failed to properly
        include postrelease control into the judgment entry of that
        sentence; violating [R.C. 2967.28] and [Williams’s] right to
        Due Process protected by both the Ohio and United States
        Constitutions.”
      ASSIGNMENT OF ERROR TWO

      “The trial court abused its discretion when it overruled
      [Williams’s] Motion to Correct a Void Sentence for lack of
      properly imposed postrelease control.”

      {¶ 7} As an initial matter, we note that both of Williams’s assigned

errors challenge the trial court’s imposition of postrelease control at the

September 2003 sentencing hearing. In State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court recently held that

principles of res judicata, including the doctrine of the law of the case, do not

preclude appellate review of the imposition of postrelease control and that the

sentence may be reviewed at any time, on direct appeal or by collateral

attack. Thus, the issue of Williams’s postrelease control is properly before

this court.

      {¶ 8} Williams argues his sentence is void because the trial court failed

to advise him at the sentencing hearing and include in the sentencing journal

entry that he would be subject to five years mandatory postrelease control

upon his release from prison. He claims that the trial court’s failure to use

“mandatory language” rendered his sentence void and entitled him to a de

novo hearing. However, we are unable to determine whether the trial court

properly sentenced Williams to a mandatory five years of postrelease control

at the sentencing hearing because he did not file a transcript of that hearing.
      {¶ 9} In Ohio, the appellant has the duty to file the transcript or such

parts of the transcript that are necessary for evaluating the lower court’s

decision. See App.R. 9(B); Knapp v. Edwards Laboratories (1980), 61 Ohio

St.2d 197, 199, 400 N.E.2d 384. The failure to file the transcript prevents an

appellate court from reviewing the appellant’s assignments of error. State v.

Turner, Cuyahoga App. No. 91695, 2008-Ohio-6648, ¶13, appeal not allowed,

121 Ohio St.3d 1476, 2009-Ohio-2045, 905 N.E.2d 655. Thus, absent a

transcript or alternative record, we must presume regularity in the

proceedings below. Knapp at 199.

      {¶ 10} Since Williams did not file a transcript of the proceedings below,

which is necessary for our determination of the issue before us, his argument

that the trial court failed to provide proper notice of postrelease control

during the sentencing hearing is without merit.

      {¶ 11} Our analysis does not end here, however, because Williams also

claims that the trial court failed to properly incorporate his postrelease

control obligations into its sentencing journal entry.    This portion of his

argument has merit. In the sentencing journal entry, the trial court stated

“[p]ost release control is part of this prison sentence for the maximum period

allowed for the above felony(s) under R.C. 2967.28.” Williams argues the

trial court was required to state that he was obligated to serve a mandatory

period of five years of postrelease control.
      {¶ 12} This court has held that it is insufficient for the court to inform

the defendant at sentencing and in its journal entry that he “may be” subject

to postrelease control when postrelease control is mandatory. See State v.

Nicholson, Cuyahoga App. No. 95327, 2001-Ohio-14, ¶12.          Here, Williams

plead guilty to a first degree felony, so he was subject to a mandatory

five-year period of postrelease control. See R.C. 2967.28(B)(1). Therefore,

the court did not properly impose a mandatory five-year period of postrelease

control in its sentencing entry.

      {¶ 13} Furthermore, this court has also held that if a court imposes a

prison sentence that includes a term of postrelease control, the court must

notify the offender, both at the sentencing hearing and in its journal entry,

that the parole board could impose an additional prison term if the offender

violates the terms and conditions of postrelease control.      State v. James,

Cuyahoga App. No. 94400, 2010-Ohio-5361, ¶25.          In the instant case, the

trial court erred by failing to state in its journal entry that the parole board

could impose an additional term of incarceration if Williams violates the

terms and conditions of postrelease control.      See State v. Rice, Cuyahoga

App. No. 95100, 2011-Ohio-1929, ¶10 (where this court, relying on Fischer,

remanded appellant’s case for the trial court to correct the sentencing journal

entry to reflect that appellant could be subject to further incarceration for

violation of terms and conditions of postrelease control.)
      {¶ 14} The State argues that under Fischer, this court can correct

Williams’s sentence without remanding for a resentencing hearing. We find

the State’s argument more persuasive.

      {¶ 15} In Fischer, the Ohio Supreme Court 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, the Fischer court 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.   The 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.

      {¶ 16} Accordingly, we remand the matter with instructions to the trial

court to correct its journal entry dated October 6, 2003, to reflect that

Williams is subject to five years mandatory postrelease control and that an

additional term of up to one-half of his prison sentence could be imposed if

Williams violates the terms and conditions of his postrelease control. See

State v. Norris, Cuyahoga App. No. 95485, 2011-Ohio-1795, ¶22; State v.

Williams, Cuyahoga App. Nos. 94321–94323, 2011-Ohio-316, ¶29.
      {¶ 17} Judgment is affirmed and the sentence is modified.     The matter

is remanded with instructions to the trial court to correct its sentencing entry

dated October 6, 2003 to reflect that Williams is subject to five years

mandatory postrelease control and that Williams could be subject to an

additional term of up to one-half of his prison sentence if he violates the

terms and conditions of his postrelease control.

      It is ordered that the parties share equally the 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.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

JAMES J. SWEENEY, J., and
LARRY A. JONES, J., CONCUR
