[Cite as State v. Berecz, 2010-Ohio-5855.]


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

State of Ohio,                               :                  Case No: 10CA12

        Plaintiff-Appellee,                  :

        v.                                   :                  DECISION AND
                                                                JUDGMENT ENTRY
Jason A. Berecz,                             :
                                                         Released 11/24/10
     Defendant-Appellant.       :
______________________________________________________________________
                            APPEARANCES:

Chandra L. Ontko, Cambridge, Ohio, for appellant, Jason A. Berecz.

James E. Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee, State
of Ohio.
______________________________________________________________________
Harsha, J.

        {¶1}     This appeal addresses the appropriate procedure for resentencing a

defendant whose original sentence failed to comply with statutory mandates concerning

post-release control. The state convicted Jason Berecz of attempted murder in 2008.

He appealed and we affirmed his conviction in part and reversed in part, holding that the

trial court made one error in sentencing. On remand, the trial court corrected that error.

It also used the remand hearing to inform Berecz that he would be subject to a

mandatory term of postrelease control upon his eventual release from prison, which it

failed to do at his original sentencing.

        {¶2}     Berecz contends that the court did not properly inform him of postrelease

control at his original sentencing and thus, his sentence was “void,” entitling him to a de

novo sentencing hearing. We disagree. Sentences imposed after July 10, 2006
Washington App. No. 10CA12                                                         2


that lack proper notification of postrelease control are amenable to the corrective

procedures set forth in R.C. 2929.191 and are not “void” sentences. Thus, Berecz’s

sentence was not void and he was not entitled to a de novo sentencing hearing.

                                  I. Statement of Facts

       {¶3}   A grand jury indicted Berecz for a litany of crimes after he shot at and

nearly killed a police officer and two innocent passersby. A jury found him guilty of

thirteen felony and misdemeanor counts, including a charge of attempted murder with a

firearm specification and a peace officer specification. The court sentenced Berecz to

38 years in jail. That sentence included a ten year term for the attempted murder count,

as well as consecutive terms of three and seven years for the firearm and peace officer

specifications, respectively.

       {¶4}   Berecz appealed and we affirmed his conviction in part and reversed it in

part. See State v. Berecz, Washington App. No. 08CA48, 2010-Ohio-285. Specifically,

we held that the trial court erred in sentencing Berecz to prison terms for both the

firearm specification and the peace officer specification. We determined that the felony

sentencing code permitted the imposition of a sentence for one specification, but not

both. Id. at ¶60-64. Accordingly, we remanded the case for resentencing.

       {¶5}   The court held a remand hearing and corrected the sentence, imposing a

prison term for the peace officer specification but not the firearm specification. This

reduced Berecz’s aggregate sentence to 35 years. The court also informed Berecz

orally and through the subsequent sentencing entry that he would be subject to

mandatory postrelease control. Berecz’s earlier sentencing entry incorrectly indicated
Washington App. No. 10CA12                                                                       3


that he “may” be subject to postrelease control. Neither party brought this error to our

attention in Berecz’s first appeal.

        {¶6}    At the conclusion of the hearing, the court asked Berecz’s counsel if he

wished to make an objection. Berecz’s counsel stated, “I’d obviously like a lot less

sentence than he’s getting[.]” The court replied that it did not have the authority to

revise the sentence but was limited to what we ordered on remand.

        {¶7}    Berecz thereafter filed a timely appeal.

                                       II. Assignment of Error

        {¶8}    Berecz assigns a single error for our review:

        {¶9}    1. THE DEFENDANT ALLEGES THAT THE TRIAL COURT’S FAILURE

TO USE THE SPECIFIC WORD “MANDATORY” IN EXPLAINING TO THE

DEFENDANT THE CONSEQUENCE OF POST RELEASE CONTROL MADE HIS

ORIGINAL SENTENCE VOID.1

                           III. Effect on Sentence of Failure to Notify
                         Defendant of Mandatory Post-Release Control

        {¶10} In his sole assignment of error, Berecz argues that he was entitled to a de

novo sentencing hearing after our remand because the trial court failed to properly

notify him in its original sentencing entry of mandatory post-release control upon his

release from prison. Berecz cites State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085,

817 N.E.2d 864, for the following proposition: a court must vacate and hold a new

sentencing hearing for a defendant who was not properly notified of postrelease control

at his original sentencing.

1
 The state refers to Appellant’s brief as an “Anders” brief. See Anders v. California (1967), 386 U.S. 738,
744, 87 S.Ct. 1396. Although the phrasing of the assignment of error is somewhat typical of one seen in
an Anders brief, appellate counsel did not follow the Anders procedure, nor do we consider it to be an
Anders application.
Washington App. No. 10CA12                                                            4


       {¶11} The state argues that the Supreme Court of Ohio approved the same

postrelease control notification procedure used by the trial court here in State v.

Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568. The state further

argues that the court followed R.C. 2929.191 and State v. Singleton, 124 Ohio St.3d

173, 2009-Ohio-6434, 920 N.E.2d 958, in correcting the sentence and informing Berecz

of postrelease control sanctions.

       {¶12} In Jordan, supra, the Supreme Court of Ohio held that “[w]hen sentencing

a felony offender to a term of imprisonment, a trial court is required to notify the offender

at the sentencing hearing about postrelease control and is further required to

incorporate that notice into its journal entry imposing sentence.” Id. at paragraph one of

the syllabus. Later, in State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d

961, the Court held that an offender is entitled to a de novo resentencing hearing when

a trial court fails to notify the offender of postrelease control. Essentially, when a trial

court fails to inform the defendant of postrelease control, it has imposed a sentence that

is contrary to law, and the sentence is void. Id. at ¶12. And when a sentence is “void,”

it is as if there had been no sentencing hearing at all and the judgment is a “nullity.” Id.

       {¶13} However, in 2006 the Ohio General Assembly passed R.C.

2929.191. That statute, enacted as part of H.B. 137, and made effective July 11,

2006, established a procedure permitting trial courts to “correct” sentences that

are deficient for failing to notify the offender about postrelease control.

       {¶14}    The Supreme Court of Ohio held that R.C. 2929.191 is applicable to

offenders sentenced after July 10, 2006, and not yet released from prison who (1) did

not receive notice at the sentencing hearing that they would be subject to postrelease
Washington App. No. 10CA12                                                           5


control; (2) did not receive notice that the parole board could impose a prison term for a

violation of postrelease control; or (3) did not receive both of these notices incorporated

into their sentencing entries. Singleton at ¶23.

       {¶15} The Court also addressed the prospective and retrospective effect of R.C.

2929.191. It held that “1. For criminal sentences imposed prior to July 11, 2006 [the

effective date of the statute], in which a trial court failed to properly impose postrelease

control, trial courts shall conduct a de novo sentencing hearing in accordance with

decisions of the Supreme Court of Ohio. 2. For criminal sentences imposed on and

after July 11, 2006, in which a trial court failed to properly impose postrelease control,

trial courts shall apply the procedures set forth in R.C. 2929.191.” Id. at paragraphs one

and two of the syllabus.

       {¶16} The Singleton Court impliedly held that sentences imposed after July 10,

2006, which were deficient for lack of proper notification of postrelease control, are not

“void” sentences. But sentences lacking the postrelease control notification and

imposed prior to the effective date of R.C. 2929.191 would be reviewed under the

Court’s prior line of cases, i.e., those sentences are “void” and require the court to

engage in a de novo resentencing.

       {¶17} Here, the court originally sentenced Berecz in November 2008 and then

resentenced him in March 2010. Under Singleton, the failure to include the word

“mandatory” in the judgment entry stemming from the original sentencing did not make

that sentence void. In addition, because Berecz remains incarcerated, the court could

use the corrective procedures set forth in R.C. 2929.191 at the remand hearing to

properly inform him of postrelease control.
Washington App. No. 10CA12                                                    6


       {¶18} Consequently, this assignment of error is meritless.

                                        IV. Conclusion

       {¶19} Thus, we overrule Berecz’s sole assignment of error and affirm the

judgment of the trial court.

                                                              JUDGMENT AFFIRMED.
Washington App. No. 10CA12                                                            7


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

McFarland, P.J. & Kline, J.: Concur in Judgment and Opinion.


                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, 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.
