         [Cite as State v. Evans, 2015-Ohio-3208.]




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



STATE OF OHIO,                                       :   APPEAL NO. C-140503
                                                         TRIAL NO. B-0510014
        Plaintiff-Appellee,                          :

  vs.                                                :      O P I N I O N.

LEONARD EVANS,                                       :

    Defendant-Appellant.                             :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed as Modified and Cause Remanded

Date of Judgment Entry on Appeal: August 12, 2015


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Leonard Evans, pro se.




Please note: we have removed this case from the accelerated calendar.
                  OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}    Defendant-appellant Leonard Evans appeals the Hamilton County

Common Pleas Court’s judgments overruling three postconviction motions.              We

affirm the judgments as modified, but remand for correction of errors in the

imposition of postrelease control and in the statement of the sum of his prison

sentences.

       {¶2}    Evans was convicted in 2006 of murder with a firearm specification,

carrying a concealed weapon, and having weapons under a disability.                  He

unsuccessfully challenged his convictions on direct appeal, State v. Evans, 1st Dist.

Hamilton No. C-060392 (Jan. 23, 2008), and in postconviction motions filed in

2014. He appeals here from the overruling of his May 2014 “Motion for Sentencing

and Issuance of a Final Appealable Order,” June 2014 “Motion for Establishment of a

Date Certain for Oral Hearing Pursuant to * * * Crim.R. 43(A),” and July 2014

“Motion for Resentencing Pursuant to * * * Crim.R. 32(A)(1).” On appeal, he presents

two assignments of error. The assignments of error essentially restate the claims

advanced in his motions and may thus be read together to challenge the denial of the

relief sought in those motions.

              No Jurisdiction under the Postconviction Statutes

       {¶3}    In his motions, Evans contended that his judgment of conviction was

void because it did not satisfy the requirements for a final appealable order, because it

did not correctly state his sentence for murder or his “total aggregate sentence,” and

because his sentences did not conform with the statutory mandates concerning

postrelease control. He did not designate a statute or rule under which the relief

sought might be granted. R.C. 2953.21 et seq., governing the proceedings on a petition

for postconviction relief, provide “the exclusive remedy by which a person may bring a




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                     OHIO FIRST DISTRICT COURT OF APPEALS



collateral challenge to the validity of a conviction or sentence in a criminal case.”

R.C. 2953.21(J). Therefore, Evans’s motions were reviewable under the standards

provided by the postconviction statutes. See State v. Schlee, 117 Ohio St.3d 153,

2008-Ohio-545, 882 N.E.2d 431, ¶ 12.

          {¶4}    But Evans filed his motions well after the time prescribed by R.C.

2953.21(A)(2) had expired. R.C. 2953.23 closely circumscribes a common pleas

court’s jurisdiction to entertain a late or successive postconviction claim.        The

petitioner must show either that he was unavoidably prevented from discovering the

facts upon which his claim depends, or that his claim is predicated upon a new,

retrospectively applicable federal or state right recognized by the United States

Supreme Court since the time for filing his claim had expired. R.C. 2953.23(A)(1)(a).

And he must show “by clear and convincing evidence that, but for constitutional

error at trial, no reasonable factfinder would have found [him] guilty of the offense of

which [he] was convicted.” R.C. 2953.23(A)(1)(b).

          {¶5}    The record on appeal does not, as it could not, demonstrate that but

for the alleged errors, “no reasonable factfinder would have found [Evans] guilty of

the offense[s] of which [he] was convicted.” See R.C. 2953.23(A)(1). Thus, because

he satisfied neither the time strictures of R.C. 2953.21(A)(2) nor the jurisdictional

requirements of R.C. 2953.23(A), the postconviction statutes did not confer upon the

common pleas court jurisdiction to entertain his postconviction claims on their

merits.

                 Jurisdiction to Correct Void Portion of Sentence

          {¶6}    Nevertheless, a court always has jurisdiction to correct a void

judgment. See State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795,




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856 N.E.2d 263, ¶ 18-19.      And Evans’s sentences are void to the extent that

postrelease control was not properly imposed.

       {¶7}   The trial court sentenced Evans to consecutive prison terms of 15 years

to life for murder and three years for the accompanying firearm specification, 18

months for carrying a concealed weapon, and five years for having weapons under a

disability. The court also, at sentencing and in the judgment of conviction, imposed

a mandatory five-year period of postrelease control.

       {¶8}   Evans’s judgment of conviction was not, as he insists, subject to

correction as void on the grounds that it lacked finality or improperly sentenced him

for murder. The judgment satisfied the requirements for a final appealable order.

See R.C. 2303.08, 2303.10, 2505.02, and Crim.R. 32(C). And Evans was properly

sentenced for murder to an indefinite term of imprisonment of 15 years to life. See

R.C. 2903.02(D) and 2929.02(B)(1).

       {¶9}   But Evans’s sentences are void to the extent that the trial court failed

to properly impose postrelease control. The postrelease-control statutes in effect in

2006, when Evans was sentenced, provided that a prison sentence imposed for a

felony that is classified by degrees must “include a requirement that the offender be

subject to a period of post-release control.” And the statutes required that the

offender be notified, both at the sentencing hearing and in the judgment of

conviction, of the length and mandatory or discretionary nature of postrelease

control, of the consequences of violating postrelease control, and of the length of

confinement that could be imposed for a postrelease-control violation. See former

R.C. 2929.14(F), 2929.19(B)(3)(c) through (e), and 2967.28(B) and (C) (superseded

in 2011 by R.C. 2929.14(D), 2929.19(B)(2)(c) through (e), and 2967.28(B) and (C));

State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 77-79; State




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                 OHIO FIRST DISTRICT COURT OF APPEALS



v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 69; State v.

Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the

syllabus. Accord State v. Smith, 1st Dist. Hamilton No. C-120163, 2012-Ohio-5965, ¶

10-11. To the extent that a sentence is not imposed in conformity with the statutory

mandates concerning postrelease control, it is void, and the void portion of the

sentence is subject to review and correction at any time. State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus and ¶ 26-

27.

       {¶10} The trial court notified Evans at sentencing that upon his release he

would be subject to a mandatory period of postrelease control of five years and

incorporated that notification into the judgment of conviction. But the postrelease-

control statutes authorized a mandatory five-year period of postrelease control only

for a first-degree felony or felony sex offense. See former R.C. 2929.19(B)(3)(c) and

2967.28(B)(1) (superseded by R.C. 2929.19(B)(2)(c) and 2967.28(B)(1)).            The

statutes did not authorize postrelease control for a special felony like murder. State

v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 36; accord State v.

Baker, 1st Dist. Hamilton No. C-050791, 2006-Ohio-4902, ¶ 4-6. And for the third-

degree felony of having weapons under a disability and the fourth-degree felony of

carrying a concealed weapon, the statutes authorized only a discretionary three-year

period of postrelease control. See former R.C. 2929.19(B)(3)(d) and 2967.28(C)

(superseded by R.C. 2929.19(B)(2)(d) and 2967.28(C)).

       {¶11} To the extent that Evans’s sentences were not imposed in conformity

with the postrelease-control statutes, they are void. And the common pleas court

had jurisdiction to review and correct the offending portions of the sentences. State

v. Long, 1st Dist. Hamilton No. C-100285, 2010-Ohio-6115.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



                          Correction of Clerical Error

       {¶12} A court also may, at any time, correct a clerical error in a judgment.

Crim.R. 36.    Evans’s judgment of conviction states that “[t]he total aggregate

sentence [was] twenty-four (24) years and six (6) months in the department of

corrections.” But the sum of his prison sentences was 24½ years to life. The

judgment’s misstatement of the sum of his prison sentences constituted a clerical

error subject to correction under Crim.R. 36.

                    Affirmed as Modified, but Remanded

       {¶13} Evans’s postconviction motions were subject to dismissal, because the

postconviction statutes did not confer on the common pleas court jurisdiction to

entertain the motions on their merits. Accordingly, upon the authority of App.R.

12(A)(1)(a), we modify the judgments appealed from to reflect dismissals of the

motions. And we affirm the judgments as modified.

       {¶14} But Evans’s sentences are void to the extent that they were not

imposed in conformity with the statutory mandates concerning postrelease control.

And the judgment of conviction did not accurately state the sum of his prison

sentences. We, therefore, remand this cause for correction of the offending portions

of his sentences and for correction of the clerical error in the judgment of conviction,

in accordance with the law and this opinion.

                               Judgments affirmed as modified and cause remanded.

CUNNINGHAM, P.J., FISCHER and STAUTBERG, JJ.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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