[Cite as State v. Alhajjeh, 2011-Ohio-2160.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 93077



                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                               MARWAN ALHAJJEH
                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                        APPLICATION FOR REOPENING
                        GRANTED (MOTION NO. 438002)
                      VACATED IN PART AND REMANDED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-512675

        BEFORE: Celebrezze, J., Stewart, P.J., and Rocco, J.
      RELEASED AND JOURNALIZED: May 4, 2011


FOR APPELLANT

Marwan Alhajjeh
Inmate No. 563-427
Richland Correctional Institution
1001 Olivesburg Road
P.O. Box 8107
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} On September 30, 2010, the applicant, Marwan Alhajjeh,

pursuant to App.R. 26(B) and State v. Murnahan (1992), 63 Ohio St.3d 60,

584 N.E.2d 1204, applied to reopen this court’s judgment in State of Ohio v.

Marwan Alhajjeh, Cuyahoga App. No. 93077, 2010-Ohio-3179, in which this

court affirmed Alhajjeh’s convictions and sentences for murder, felonious

assault, and tampering with evidence. Alhajjeh argues that his appellate

counsel was ineffective for failing to assign as error that postrelease control

sanctions were improperly imposed. On October 29, 2010, the State of Ohio
filed its brief in opposition. For the following reasons, this court grants the

application to reopen, reinstates Alhajjeh’s appeal, vacates his sentence as to

postrelease control, and remands this case for resentencing on postrelease

control consistent with this opinion.

      {¶ 2} In order to establish a claim of ineffective assistance of appellate

counsel, the applicant must demonstrate that counsel’s performance was

deficient and that the deficient performance prejudiced the defense. That is,

but for the unreasonable error, there is a reasonable probability that the

results of the proceeding would have been different.             Strickland v.

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; State v.

Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, cert. denied (1990), 497

U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768; and State v. Reed (1996), 74 Ohio

St.3d 534, 660 N.E.2d 456.

      {¶ 3} In the present case, Alhajjeh pleaded no contest and was found

guilty of murder; felonious assault, a second-degree felony; and tampering

with evidence, a third-degree felony.    On March 23, 2009, the trial court

sentenced Alhajjeh to 15 years to life on the murder charge; eight years on

the felonious assault charge, which the trial court merged into the murder

charge for sentencing; and five years on the tampering with evidence charge

consecutive to the other two counts.        The trial court then ordered: “

Postrelease control is part of this prison sentence for 5 years for the above
felony(s) under R.C. 2967.28. (No reduction) on Counts 2 and 3 only.”1 The

trial court did not include in the sentence that if Alhajjeh violated any

sanction imposed as part of postrelease control, then the parole board could

impose a prison term of up to one-half of the stated prison term originally

imposed upon him.

      {¶ 4} R.C. 2967.28(B) and (C) provide in pertinent part:                     “a period of

post-release control required by this division for an offender shall be one of

the following periods: (1) For a felony of the first degree or for a felony sex

offense, five years; (2) For a felony of the second degree that is not a felony

sex offense, three years; (3) For a felony of the third degree that is not a

felony sex offense and in the commission of which the offender caused or

threatened physical harm to a person, three years. (C) Any sentence to a

prison term for a felony of the third, fourth, or fifth degree that is not subject

to division (B)(1) or (3) of this section shall include a requirement that the

offender be subject to a period of post-release control of up to three years * * *

if the parole board * * * determines that a period of post-release control is

necessary for that offender.”

      {¶ 5} The imposition of five years of postrelease control for the second-

and third-degree felonies was reversible error.                           In State v. Douglas,

Cuyahoga         App.       No.      88367,       2007-Ohio-2625,           reopening   allowed


          Postrelease control does not apply to murder; rather, parole applies.
      1
2007-Ohio-5941, this court granted an App.R. 26(B) application to reopen and

then vacated the sentence and remanded for resentencing because the trial

court had imposed five years of postrelease control for felonious assault,

which is a second-degree felony that is not a sex offense. State v. Wolford,

Cuyahoga App. No. 92607, 2010-Ohio-434, and State v. Norris, Cuyahoga

App. No. 95485, 2001-Ohio-1251. Had appellate counsel raised this issue,

this court would have vacated the postrelease control sentence and remanded

for resentencing.   This court further notes that in State v. Singleton, 124

Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, the Ohio Supreme Court

ruled that informing the defendant-prisoner that a violation of postrelease

control would allow the parole board to impose a prison term as part of his

sentence up to one-half of the stated prison term originally imposed upon him

is a necessary part of imposing postrelease control.

      {¶ 6} Accordingly,   this court grants the application to reopen,

reinstates this appeal to the docket of this court, then vacates the sentence as

to the imposition of postrelease control, and remands to the trial court for the

proper imposition of postrelease control. State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, and State v. Street, Cuyahoga App. No.

85020, 2005-Ohio-1976, reopening granted 2006-Ohio-21.

      It is, therefore, ordered that appellant recover of the appellee his costs

herein taxed.
      It is ordered that a special mandate be sent to said 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.



FRANK D. CELEBREZZE, JR., JUDGE

KENNETH A. ROCCO, P.J., and
MELODY J. STEWART, J., CONCUR
