[Cite as State v. Gonzalez, 195 Ohio App.3d 262, 2011-Ohio-4219.]




                               IN THE COURT OF APPEALS
                       FIRST APPELLATE DISTRICT OF OHIO
                               HAMILTON COUNTY, OHIO



THE STATE OF OHIO,                               :                  APPEAL NO. C-100710
                                                                    TRIAL NO. B-0105717
Appellee,                                        :

v.                                               :                     D E C I S I O N.

GONZALEZ,                                        :

Appellant.                                       :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Cause Remanded

Date of Judgment Entry on Appeal: August 24, 2011




       Joseph T. Deters, Hamilton County Prosecuting Attorney, and James Michael
Keeling, Assistant Prosecuting Attorney, for appellee.


        Nader Gonzalez, pro se.
                   OHIO FIRST DISTRICT COURT OF APPEALS



       Per Curiam.

       {¶1}    Defendant-appellant Nader Gonzalez appeals from the Hamilton County

Common Pleas Court’s judgment overruling his “Motion to Vacate Void Sentence, and *

* * for a New Sentencing Hearing.” We remand this case to the trial court for the proper

imposition of postrelease control.

       {¶2}    In 2002, Gonzalez was convicted on two counts of felonious assault. He

unsuccessfully challenged his convictions in appeals to this court and to the Ohio

Supreme Court1 and in his 2006 App.R. 26(B) application to reopen his appeal.2

       {¶3}    In June 2010, Gonzalez filed with the common pleas court a motion

seeking a new sentencing hearing on the ground that his sentence was void because the

trial court had failed to adequately notify him concerning postrelease control. The

common pleas court overruled the motion. This appeal followed.

       {¶4}    On appeal, Gonzalez presents two assignments of error. We address first

his second assignment of error, in which he cites the Ohio Supreme Court’s 2010

decision in State v. Johnson3 to argue that the trial court, in imposing prison terms on

both felonious-assault charges, violated R.C. 2941.25. The offenses, Gonzalez insists,

were allied offenses of similar import that had been committed neither separately nor

with a separate animus as to each. We do not reach the merits of this challenge.

       {¶5}    This court has jurisdiction to review only the judgment from which Gonzalez

appeals.   In that judgment, the common pleas court overruled Gonzalez’s motion

challenging the adequacy of postrelease-control notification. The court did not rule upon,

because Gonzalez had not asserted in his motion, an allied-offenses challenge to his


1 See State v. Gonzalez, 154 Ohio App.3d 9, 2003-Ohio-4421, 796 N.E.2d 12, appeal not accepted
for review, 100 Ohio St.3d 1532, 2003-Ohio-6458, 800 N.E.2d 48.
2 See State v. Gonzalez, 111 Ohio St.3d 1434, 2006-Ohio 5351, 855 N.E.2d 498.
3 State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.




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                   OHIO FIRST DISTRICT COURT OF APPEALS



sentences. His failure to present this challenge as a ground for relief in his motion

precludes this court from reviewing it on appeal from the judgment overruling the

motion.4 And while a trial court retains jurisdiction to correct a void judgment,5 the Ohio

Supreme Court has not held that a judgment of conviction is rendered void by the

imposition of multiple sentences in violation of R.C. 2941.25.6

        {¶6}    In his first assignment of error, Gonzalez contends that the common pleas

court erred in overruling his motion seeking resentencing on the ground that his sentences

are void for inadequate postrelease-control notification. We agree.

        {¶7}    Gonzalez was found guilty of two counts of felonious assault, both

second-degree felonies.      The trial court was thus required to notify Gonzalez at

sentencing that upon his release from prison, he would be subject to postrelease-control

supervision.7 The court failed to do so. Consequently, to the extent that Gonzalez was

not adequately notified concerning postrelease control, his sentences are void and he is

“entitled * * * to proper imposition of postrelease control.”8

        {¶8}    Gonzalez did not assign this matter as error in his direct appeal from his

conviction.    He instead presented the challenge in his postconviction motion for

resentencing. But when a sentence is void to the extent that it was not imposed in

conformity with the statutory mandates concerning postrelease control, and the matter has

come to the attention of a court, whether on direct appeal or in a collateral challenge, the




4 See State v. Gipson (Sept. 26, 1997), 1st Dist. Nos. C-960867 and C-960881, 1997 WL 598397.
5 See State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶18-
19.
6 Cf. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the
syllabus and ¶27 (holding that “[a] sentence that does not include the statutorily mandated term
of postrelease control is void * * * and may be reviewed at any time, on direct appeal or by
collateral attack”).
7 See State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the
syllabus.
8 See Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraphs one and two of the syllabus.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



court “cannot ignore” the matter,9 and “the offending portion of the sentence is subject to

review and correction.”10

       {¶9}    Gonzalez’s felonious-assault sentences are void to the extent that he was

not notified at sentencing concerning postrelease control.       Because his motion for

resentencing brought this matter to the attention of the common pleas court, the court

erred in overruling the motion. We, therefore, sustain the first assignment of error and

remand this case for correction of the offending portions of his sentences in accordance

with the law and this decision.

                                                                          Cause remanded.



       SUNDERMANN, P.J., and HENDON and FISCHER, JJ., concur.

                                  _______________________




9 State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422, ¶12; accord State v.
Holcomb, 184 Ohio App.3d 577, 2009-Ohio-3187, 921 N.E.2d 1077, ¶17-20; State v. Long, 1st
Dist. No. C-100285, 2010-Ohio-6115, ¶5.
10 Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph one of the syllabus and ¶27.




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