[Cite as State v. Benjamin, 2011-Ohio-5699.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      SCIOTO COUNTY

State of Ohio,                        :
                                      :
      Plaintiff-Appellee,             :
                                      :          Case No. 10CA3378
      v.                              :
                                      :          DECISION AND
Akie H. Benjamin,                     :          JUDGMENT ENTRY
                                      :
      Defendant-Appellant.            :          Filed: October 27, 2011
________________________________________________________________

                                               APPEARANCES:

Akie H. Benjamin, Chillicothe Correctional Institution, Chillicothe, Ohio,
pro se, Appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney and Danielle M. Parker, Scioto
County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
________________________________________________________________

Kline, J.:

{¶1}         Akie H. Benjamin appeals the trial court’s denial of his Motion to Vacate Void

Sentence Pursuant to R.C. 2953.08(A)(4). Benjamin contends that his sentence was

void because the trial court failed to impose a statutorily mandated driver’s license

suspension, and thus, he is entitled to a resentencing hearing. We agree. Because the

trial court failed to impose a statutorily mandated driver’s license suspension,

Benjamin’s sentence is void, and the trial court must resentence Benjamin. However,

we limit Benjamin’s resentencing hearing to the proper imposition of the statutorily

mandated driver’s license suspension.
Scioto App. No. 10CA3378                                                              2


                                              I.

{¶2}         On November 26, 2007, a Scioto County Grand Jury indicted Benjamin for

possession of and trafficking in both crack cocaine and methylenedioxymeth-

amphetamine (commonly referred to as “ecstasy”). The trafficking charges were

dismissed, and the state tried Benjamin on the possession charges. Benjamin was

convicted of two counts of possession in violation of R.C. 2925.11(A)/(C)(4)(c) and R.C.

2925.11(A)/(C)(1)(b), both felonies of the third degree. We affirmed Benjamin’s

convictions in State v. Benjamin, Scioto App. No. 08CA3249, 2009-Ohio-4774.

{¶3}         Following our decision, Benjamin filed several motions with the trial court. On

May 14, 2010, Benjamin filed a Motion to Vacate Void Sentence Pursuant to R.C.

2953.08(A)(4). In his motion to vacate, Benjamin asserted, among other things, that his

sentence was void because the trial court failed to impose a statutorily mandated

driver’s license suspension. On June 23, 2010, the trial court denied Benjamin’s motion

to vacate.

{¶4}         Benjamin appeals and asserts the following assignment of error: I. “The

sentence in the case is void due to the trial courts [sic] failure to impose a statutorily

mandated drivers [sic] license suspension. Therefore Defendant is entitled to re-

sentencing hearing [sic].”

                                              II.

{¶5}         In his sole assignment of error, Benjamin contends that his sentence is void

and that he should be granted a de novo sentencing hearing. Benjamin argues that,

because the trial court’s sentence did not impose a mandatory driver’s license

suspension, his entire sentence is void.
Scioto App. No. 10CA3378                                                                3


{¶6}       “Appellate courts ‘apply a two-step approach [to review a sentence]. First,

[we] must examine the sentencing court’s compliance with all applicable rules and

statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall

be reviewed under an abuse-of-discretion standard.’” State v. Smith, Pickaway App.

No. 08CA6, 2009-Ohio-716, at ¶8, quoting State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, at ¶4 (alterations in original).

{¶7}       Here, we focus on the first prong. Specifically, Benjamin contends that the

trial court failed to comply with all applicable rules and statutes, and thus, his sentence

is clearly and convincingly contrary to law. We review de novo whether the trial court

clearly and convincingly complied with all applicable rules and statutes. State v.

Walker, Mahoning App. No. 08MA103, 2009-Ohio-1503, at ¶10.

{¶8}       Benjamin was convicted of two counts of possession of drugs, in violation of

R.C. 2925.11(A)/(C)(4)(c) and R.C. 2925.11(A)/(C)(1)(b), each felonies of the third

degree. R.C. 2925.11(E)(2) provides that “the court that sentences an offender who is

convicted of or pleads guilty to a violation of division (A) of this section shall do all of the

following that are applicable regarding the offender: * * * (2) The court shall suspend for

not less than six months or more than five years the offender’s driver’s or commercial

driver’s license or permit.” Therefore, under R.C. 2925.11(E)(2), the trial court was

required to suspend Benjamin’s driver’s license for at least six months. The trial court,

however, failed to impose the statutorily mandated driver’s license suspension.

{¶9}       Benjamin asserts that he is entitled to a resentencing hearing because his

sentence is void. Benjamin relies on State v. Beasley (1984), 14 Ohio St.3d 74. In
Scioto App. No. 10CA3378                                                             4


Beasley, the defendant was convicted of a crime that included a mandatory prison term

as well as an optional fine. Id. at 75. The trial court, however, imposed only a fine. Id.

And the Supreme Court of Ohio held that “[a]ny attempt by a court to disregard statutory

requirements when imposing a sentence renders the attempted sentence a nullity or

void.” Id. See, also, Colegrove v. Burns, (1964), 175 Ohio St. 437, 438 (“[T]he only

sentence which a trial court may impose is that provided for by statute. A court has no

power to substitute a different sentence for that provided for by statute or one that is

either greater or lesser than that provided for by law.”).

{¶10}     Benjamin argues that, because the trial court did not impose a statutorily

mandated driver’s license suspension, his sentence is a nullity or void under Beasley.

Therefore, according to Benjamin, “where a sentence is void because it does not

contain a statutorily mandated term, the proper remedy is * * * to resentence the

defendant.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, at ¶23 (citing

Beasley), superseded by statute.

{¶11}     Courts have found that the failure to impose a statutorily mandated driver’s

license suspension renders a sentence void and that the proper remedy is resentencing

of the defendant. See State v. Harris, 190 Ohio App.3d 417, 2010-Ohio-5374. In

Harris, the defendant pled guilty to drug trafficking in violation of R.C. 2925.03(A)(2),

which carries a mandatory driver’s license suspension under R.C. 2925.03(G). The trial

court, however, failed to impose the mandatory driver’s license suspension. And the

appellate court held: “When a sentence fails to impose a mandated term such as a

driver’s license suspension, that sentence is void. * * * When a sentence is void

because it does not contain a statutorily mandated term, the proper remedy is to
Scioto App. No. 10CA3378                                                              5


resentence the defendant. * * * Therefore, we reverse the judgment [of the trial court]

and remand for resentencing.” Id. at ¶3 (citations omitted). See, also, State v.

Donahue, Cuyahoga App. No. 89111, 2007-Ohio-6825, at ¶22-23 (“Beasley is

applicable to instances in which a trial court fails to include a statutorily mandated

drivers’ license suspension. * * * As Donahue’s sentence does not contain two

statutorily mandated terms, namely, a driver’s license suspension and postrelease

control, Donahue’s sentence is void. Donahue’s sentence is vacated and this matter is

remanded for resentencing.”) (citation omitted).1

{¶12}      In a similar context, the court in State v. Fields, 183 Ohio App.3d 647, 2009-

Ohio-4187, remanded a case for resentencing after the trial court failed to impose a

statutorily mandated fine. The court stated: “[A] trial court retains jurisdiction to correct

its void judgments. Because the court below did not include in Fields’s sentence for

cocaine possession the statutorily mandated fine, the sentence was void. And

regardless of the jurisdictional bar to its consideration of Fields’s postconviction claim on

its merits, the court should have vacated the void sentence and conducted a new

sentencing hearing. Accordingly, we vacate the sentence imposed on Fields for

cocaine possession and remand the case for a new sentencing hearing.” Id. at ¶10-11

(citations omitted).




1
  We note that in State v. Thomas, Hamilton App. Nos. C-090716 & C-090463, 2010-
Ohio-4856, the court held that “a trial court’s omission of a statutorily mandated driver’s
license suspension does not render void an otherwise lawful sentence.” Id. at ¶11. And
the Supreme Court of Ohio has certified a conflict between Thomas and State v. Harris,
2010-Ohio-5374, to determine: “Does the failure to include a mandatory driver’s license
suspension in a criminal sentence render that sentence void?” State v. Harris, 128 Ohio
St.3d 1423, 2011-Ohio-1049.
Scioto App. No. 10CA3378                                                               6


{¶13}     We agree that Benjamin’s sentence is void because the trial court failed to

impose a statutorily mandated driver’s license suspension. The state concedes the

error. And both Benjamin and the state contend that the proper remedy is to

resentence Benjamin. The state, however, argues that the resentencing hearing should

address only the trial court’s imposition of the statutorily mandated driver’s license

suspension.

{¶14}     The state relies on State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. In

Fischer, the Court held that when a trial court fails to properly impose statutorily

mandated postrelease control, the defendant’s resentencing hearing is limited to the

imposition of postrelease control. Id. at ¶29. The Fischer Court stated: “[W]hen a judge

fails to impose statutorily mandated postrelease control as part of a defendant’s

sentence, that part of the sentence is void and must be set aside.” Id. at ¶26 (emphasis

sic). And “[t]he new sentencing hearing to which an offender is entitled * * * is limited to

proper imposition of postrelease control.” Id. at paragraph two of the syllabus

{¶15}     We agree with the state that Benjamin’s resentencing hearing should be

limited to the proper imposition of the statutorily mandated driver’s license suspension.

We acknowledge that the Fischer Court stated that its decision was “limited to a discrete

vein of cases: those in which a court does not properly impose a statutorily mandated

period of postrelease control.” Id. at ¶31. However, as the Fischer Court noted, “when

an appellate court concludes that a sentence imposed by a trial court is in part void,

only the portion that is void may be vacated or otherwise amended.” Fischer at ¶28.

Benjamin’s sentence is void only to the extent that the trial court failed to properly

impose the statutorily mandated driver’s license suspension. And limiting Benjamin’s
Scioto App. No. 10CA3378                                                             7


resentencing hearing to the proper imposition of the statutorily mandated driver’s

license suspension “provides an equitable, economical, and efficient remedy for

[Benjamin’s] void sentence.” Fischer at ¶30. In short, the principles that justify limiting a

resentencing hearing in the postrelease control context apply here to remedy the trial

court’s failure to impose a statutorily mandated driver’s license suspension.

{¶16}     Benjamin’s sentence is void because the trial court failed to impose the

statutorily mandated driver’s license suspension. Thus, we sustain Benjamin’s

assignment of error, and we reverse the judgment of the trial court. We vacate

Benjamin’s sentence to the extent the trial court failed to impose the statutorily

mandated driver’s license suspension under R.C. 2925.11(E)(2). And we remand this

case to the trial court for a resentencing hearing. However, we limit Benjamin’s

resentencing hearing to the proper imposition of the statutorily mandated driver’s

license suspension under R.C. 2925.11(E)(2).

                                             III.

{¶17}     In conclusion, the trial court’s judgment is reversed, and this cause is

remanded to the trial court for proceedings consistent with this opinion.

                                   JUDGMENT REVERSED AND CAUSE REMANDED.
Scioto App. No. 10CA3378                                                            8


                                   JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE REVERSED AND THIS CAUSE BE
REMANDED for further proceedings consistent with this opinion. Appellee shall pay 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
Scioto County Court of Common Pleas 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. Exceptions.


       Harsha, P.J. and McFarland, J. : Concur in Judgment and Opinion.




                                   For the Court


                                   BY:_____________________________
                                      Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
