[Cite as State v. Richard-Bey, 2011-Ohio-3676.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :      JUDGES:
                                                  :
                                                  :      Hon. W. Scott Gwin, P.J.
                       Plaintiff-Appellee         :      Hon. John W. Wise, J.
                                                  :      Hon. Patricia A. Delaney, J.
-vs-                                              :
                                                  :      Case No. CT2010-0051
B.J. ELDER RICHARD-BEY                            :
                                                  :
                                                  :
                      Defendant-Appellant         :      OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Muskingum County Court
                                                      of Common Pleas, Case No. CR2004-
                                                      0119A


JUDGMENT:                                             AFFIRMED



DATE OF JUDGMENT ENTRY:                               July 19, 2011



APPEARANCES:

For Appellant:                                           For Appellee:

ROBERT D. ESSEX                                          D. MICHAEL HADDOX
1654 East Broad St.                                      MUSKINGUM COUNTY PROSECUTOR
Suite 302
Columbus, OH 43203                                       ROBERT L. SMITH
                                                         27 N. 5th St.
                                                         Zanesville, OH 43701
[Cite as State v. Richard-Bey, 2011-Ohio-3676.]


Delaney, J.

           {¶1}    Defendant-Appellant B.J. Elder Richard-Bey appeals the September 7,

2010 resentencing judgment entry of the Muskingum County Court of Common Pleas.

Plaintiff-Appellee is the State of Ohio.

                                      STATEMENT OF THE CASE1

           {¶2}    On May 13, 2004, Appellant was indicted by the Muskingum County

Grand Jury upon one count of Aggravated Robbery with a firearm specification, in

violation of R.C. 2911.01(A)(1), a felony of the first degree; one count of Theft, in

violation of R.C. 2913.02(A)(4), a misdemeanor of the first degree; one count of

Robbery, in violation of R.C. 2911.02(A)(1), a felony of the second degree; one count of

Theft, in violation of R.C. 2913.02(A)(1), a felony of the fifth degree; and one count of

Having a Weapon While Under Disability, in violation of R.C. 2923.13(A)(2), a felony of

the fifth degree.

           {¶3}    Appellant appeared before the Muskingum County Court of Common

Pleas on July 16, 2004 and withdrew his former pleas of not guilty and entered pleas of

guilty to all counts in the indictment. In exchange for Appellant’s plea, the State agreed

to recommend that Appellant receive an aggregate prison term of eight years. The plea

form signed by Appellant indicated that Appellant would be subject to mandatory

postrelease control of five years. The trial court ordered a pre-sentence investigation

before sentencing.




1
    A statement of the facts is unnecessary for the disposition of this appeal.
Muskingum County, Case No. CT2010-0051                                                      3


         {¶4}   On August 16, 2004, the trial court sentenced Appellant. The trial court

sentenced Appellant to an aggregate prison term of eight years. During the sentencing

hearing, the trial court informed Appellant that he would be placed on a mandatory

period of postrelease control for five years. The trial court’s sentencing entry, however,

stated that the postrelease control was mandatory in the case up to a maximum of five

years.

         {¶5}   On August 6, 2010, Appellant filed a Motion for De Novo Sentencing.

         {¶6}   Appellant came before the trial court for resentencing. Appellant asserted

that he should be permitted to withdraw his plea and proceed to trial. The trial court

limited the scope of the hearing to re-sentencing for postrelease control purposes. On

September 7, 2010, the trial court issued a sentencing entry where the trial court stated

that it notified Appellant that postrelease control in this case is mandatory for five years.

         {¶7}   It is from this decision Appellant now appeals.

         {¶8}   Appellant raises one Assignment of Error:

         {¶9}   “I. THE TRIAL COURT ERRED IN RE-IMPOSING A PERIOD OF POST

RELEASE CONTROL AND FAILED TO CONDUCT A PROPER RE-SENTENCING

HEARING.         THIS REVIEW IS REQUESTED PURSUANT TO ANDERS V.

CALIFORNIA (1967), 367 U.S. 738.

         {¶10} Appellant argues the trial court erred in failing to conduct a de novo

sentencing hearing. We disagree.

         {¶11} This Court recently examined a similar issue regarding a defendant’s

motion to withdraw a guilty plea prior to a resentencing on postrelease control in State

v. Bennett, Stark App. 2010CA00200, 2010-Ohio-2236. In affirming the trial court’s
Muskingum County, Case No. CT2010-0051                                                   4


denial of the defendant’s motion to withdraw his guilty plea, we relied upon the recent

Ohio Supreme Court case of State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, 942

N.E.2d 332. We stated:

       {¶12} “In Fischer, the Court stated:

       {¶13} “’We similarly hold that when 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. (Footnote omitted.) Neither the Constitution nor common sense

commands anything more.’

       {¶14} “’This principle is an important part of the analysis of void sentences that

we have not focused upon in prior cases involving postrelease control, including Bezak,

114 Ohio St.3d 94, 2007–Ohio–3250, 868 N.E.2d 961. Thus, we reaffirm the portion of

the syllabus in Bezak that states ‘[w]hen a defendant is convicted of or pleads guilty to

one or more offenses and postrelease control is not properly included in a sentence for

a particular offense, the sentence for that offense is void,’ but with the added proviso

that only the offending portion of the sentence is subject to review and correction.’

       {¶15} “’However, we now modify the second sentence in the Bezak syllabus as

ill-considered. That sentence states that the offender is entitled to a new sentencing

hearing for the offense for which postrelease control was not imposed properly. 114

Ohio St.3d 94, 2007–Ohio–3250, 868 N.E.2d 961. It does not recognize a principle that

we overlooked in Bezak: 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.’
Muskingum County, Case No. CT2010-0051                                                     5


       {¶16} “’Therefore, we hold that the new sentencing hearing to which an offender

is entitled under Bezak is limited to proper imposition of postrelease control. In so

holding, we come more into line with legislative provisions concerning appellate review

of criminal sentences.’

       {¶17} “Accordingly, we find Appellant's convictions and the remainder of

Appellant's original sentence remained valid, and Appellant's motion to withdraw plea is

properly addressed as a post-sentence motion.

       {¶18} “Ohio Criminal Rule 32.1 governs motions to withdraw pleas, and reads:

       {¶19} “’A motion to withdraw a plea of guilty or no contest may be made only

before sentence is imposed; but to correct manifest injustice the court after sentence

may set aside the judgment of conviction and permit the defendant to withdraw his or

her plea.’

       {¶20} “Appellant has not demonstrated, nor does the record reflect, a manifest

injustice resulted from the trial court's denial of Appellant's motion to withdraw his guilty

plea. Accordingly, Appellant's sole assignment of error is overruled.”

       {¶21} Based upon Fischer, supra and Bennett, supra we hereby overrule

Appellant’s sole assignment of error.      Fischer established that the trial court is not

required to conduct a de novo sentencing hearing, but only a hearing limited to the

proper imposition of postrelease control. Further, as in the Bennett case, the record in

the present case does not show that a manifest injustice resulted from the trial court’s

implicit denial of Appellant’s oral motion to withdraw his guilty plea.
Muskingum County, Case No. CT2010-0051                                  6


       {¶22} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By: Delaney, J.

Gwin, P.J. and

Wise, J. concur.



                                  HON. PATRICIA A. DELANEY



                                  HON. W. SCOTT GWIN



                                  HON. JOHN W. WISE
[Cite as State v. Richard-Bey, 2011-Ohio-3676.]


            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                       :
                                                    :
                                                    :
                       Plaintiff-Appellee           :
                                                    :
-vs-                                                :   JUDGMENT ENTRY
                                                    :
B.J. ELDER RICHARD-BEY                              :
                                                    :
                                                    :   Case No. CT2010-0051
                      Defendant-Appellant           :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Muskingum County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                                  HON. PATRICIA A. DELANEY



                                                  HON. W. SCOTT GWIN



                                                  HON. JOHN W. WISE
