[Cite as State v. Jones, 2011-Ohio-2929.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95882




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     MELVIN JONES
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-396309

        BEFORE:            S. Gallagher, J., Kilbane, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                      June 16, 2011
ATTORNEY FOR APPELLANT

Dale M. Hartman
2195 South Green Road
University Heights, OH 44121


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Thorin O. Freeman
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




SEAN C. GALLAGHER, J.:

      {¶ 1} Appellant Melvin Jones appeals from a resentencing that

occurred in the Cuyahoga County Court of Common Pleas. For the reasons

stated herein, we affirm.

      {¶ 2} On September 12, 2000, Jones was indicted on one count of

aggravated murder, in violation of R.C. 2903.01, with a firearm specification,

and one count of having a weapon while under disability, in violation of R.C.

2923.13, with a firearm specification. Pursuant to a plea agreement, Jones

pled guilty to involuntary manslaughter with a three-year firearm
specification, and he received an agreed-to prison term of 13 years, which

included ten years of incarceration for involuntary manslaughter with a

mandatory, consecutive three-year term of incarceration for the firearm

specification. This court affirmed the conviction in State v. Jones, Cuyahoga

App. No. 79811, 2002-Ohio-1271.

      {¶ 3} In September 2010, because postrelease control was not properly

imposed, this court vacated Jones’s sentence and remanded the case for a de

novo sentencing hearing in accordance with State v. Singleton, 129 Ohio St.3d

73, 2009-Ohio-6434, 90 N.E.2d 958.      State v. Jones, Cuyahoga App. No.

94216, 2010-Ohio-4136.     In Singleton, the Ohio Supreme Court held as

follows: “For criminal sentences imposed prior to July 11, 2006, in which a

trial court failed to properly impose post-release control, trial courts shall

conduct a de novo sentencing hearing in accordance with decisions of the Ohio

Supreme Court.”    Singleton, 129 Ohio St.3d 73, at paragraph one of the

syllabus.

      {¶ 4} Upon remand, the trial court held a hearing on September 28,

2010. The court incorporated “all that had gone before in this case,” and

reimposed the original 13-year sentence, with the inclusion of a mandatory

five years of postrelease control. The trial court overruled Jones’s objection

to an undue delay in sentencing. Defense counsel requested that court costs

be waived on account of defendant being indigent and in prison. The court
found that costs were imposed originally and that the only change being made

to the sentence was the advisement of postrelease control.

      {¶ 5} Jones filed this appeal, raising three assignments of error for our

review.    His first assignment of error provides as follows:        “I.   The

proceedings below were defective in that the court failed to follow the

mandate of the court of appeals upon remand by failing to provide a de novo

sentencing hearing.”

      {¶ 6} At the time this court vacated Jones’s sentence, Ohio law dictated

that the failure to properly impose postrelease control resulted in a void

sentence, with the effect that it was a nullity and as if no sentence had been

imposed.   State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d

961, ¶ 12. Therefore, we remanded the case for a de novo sentencing hearing

in accordance with Singleton, 129 Ohio St.3d 73. Jones, 2002-Ohio-1271.

      {¶ 7} The Bezak decision was recently revisited by the Ohio Supreme

Court in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.

 In Fischer, the court held that when a judge fails to impose statutorily

mandated postrelease control as part of a defendant’s sentence, it is only that

part of the sentence that is void and subject to review and correction. Id. at

¶ 26-27. The court did not address whether its decision was retroactive or

what effect Fischer has on sentences that were vacated pursuant to the

court’s earlier decisions. While the Ohio Supreme Court has taken steps to
clarify the law in areas such as postrelease control, the Adam Walsh Act and

Megan’s Law, and allied offenses, its holdings continue to leave gaps in the

analysis that create uncertainty for the lower courts.

      {¶ 8} We recognize that Jones’s original sentence was vacated.

However, pursuant to Fischer, “the new sentencing hearing to which an

offender is entitled under Bezak is limited to proper imposition of postrelease

control.” Id. at ¶ 29; see, also, State v. Hayden, Cuyahoga App. No. 94955,

2011-Ohio-616.    Thus, we find no error with regard to the trial court’s

reimposition of the original sentence with the proper addition of postrelease

control. Jones’s first assignment of error is overruled.

      {¶ 9} Jones’s second assignment of error provides as follows: “II.

Defendant received ineffective assistance of counsel.”

      {¶ 10} Jones fails to argue any errors with regard to the trial court’s

imposition of postrelease control at resentencing. Further, as we have found

no error with regard to the trial court’s reimposition of Jones’s original

sentence with the proper addition of postrelease control, we cannot say that

Jones received ineffective representation. Jones’s second assignment of error

is overruled.

      {¶ 11} The third assignment of error provides as follows:     “III.   The

trial court lacked jurisdiction to impose sentence.”
      {¶ 12} Jones argues that the trial court was divested of jurisdiction to

impose a sentence because there was an unreasonable delay in imposing a

proper sentence.    Crim.R. 32(A) states that “[s]entence shall be imposed

without unnecessary delay.”      Jones was convicted in September 2000; his

original sentence was imposed in February 2001; his sentence was rendered

void because of postrelease control in September 2010, and he was

resentenced with the proper imposition of postrelease control that same

month.

      {¶ 13} Jones cites to this court’s decision in State v. Mack, Cuyahoga

App. No. 92606, 2009-Ohio-6460, appeal not allowed by 124 Ohio St.3d 1540,

2010-Ohio-1557, 924 N.E.2d 844. Mack is distinguishable because the delay

in Mack involved a lengthy delay between the defendant’s conviction and his

sentencing for the imposition of community control, which also occurred well

after his release from prison.

      {¶ 14} This case involves a resentencing for the proper imposition of

postrelease control. There was not a long delay between the conviction and

sentence or the vacation of sentence and resentencing.        This court has

previously rejected similar arguments premised upon a resentencing for the

imposition of postrelease control. See State v. Cardamone, Cuyahoga App.

No. 94405, 2011-Ohio-818; State v. Harris, Cuyahoga App. No. 95010,

2011-Ohio-482; State v. Jaffal, Cuyahoga App. No. 93142, 2011-Ohio-419.
Accordingly, we find no unnecessary delay and overrule the third assignment

of error.

      Judgment affirmed.

      It is ordered that appellee recover from appellant 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. Case remanded to

the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
