[Cite as State v. Lofton, 2012-Ohio-2274.]


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


State of Ohio,                                    :
                                                  :
             Plaintiff-Appellee.                  :         Case No: 11CA16
                                                  :
             v.                                   :
                                                  :         DECISION AND
Harrison S. Lofton IV,                            :         JUDGMENT ENTRY
                                                  :
             Defendant-Appellant.                 :         Filed: May 18, 2012



                                             APPEARANCES:

Harrison S. Lofton IV, Toledo, Ohio, pro se, Appellant.

Judy C. Wolford, Pickaway County Prosecutor, Circleville, Ohio, for Appellee.


Kline, J.:

        {¶1} Harrison S. Lofton IV (hereinafter “Lofton”) appeals the judgment of the

Pickaway County Court of Common Pleas, which denied his motion for resentencing.

On appeal, Lofton claims that the trial court erred in imposing postrelease control. As a

result, Lofton argues that he is entitled to a de novo sentencing hearing. Because

Lofton was convicted of an unclassified felony, we agree that the trial court erred in

imposing postrelease control. We disagree, however, that Lofton is entitled to a de

novo sentencing hearing. Accordingly, we affirm the judgment of the trial court.

                                                  I.

        {¶2} After pleading guilty, Lofton was convicted of murder with a firearm

specification. The trial court imposed fifteen years to life for the murder count, one year
Pickaway App. No.11CA16                                                                2


for the firearm specification, and a five-year period of post release control. Significantly,

Lofton’s January 18, 2006 Entry of Sentence on Change of Plea states that the trial

court “notified the defendant that he will be subject to a period of post release control of

Five (5) years, to be imposed by the Parole Board after his release from imprisonment,

as well as the consequences for violating conditions of post release control[.]”

       {¶3} On June 9, 2011, Lofton filed a Motion for Resentencing. Lofton argued

that the trial court erred by failing to “inform the defendant that he could be returned to

prison for up to one-half his originally stated term for violating his post-release control[.]”

Id. As a result, Lofton claimed that his “sentence is void, requiring [the trial court] to

convey him back before it to be resentenced.” Id.

       {¶4} In a June 13, 2011 Decision and Entry, the trial court denied Lofton’s

Motion for Resentencing.

       {¶5} Lofton appeals and asserts the following two assignments of error: I. “THE

TRIAL COURT ERRED BY FAILING TO FOLLOW statutory mandates on sentencing;

to wit : properly notifying the defendant of Post Release Control guidelines and

violations at his/her sentencing hearing.” And, II. “THE TRIAL COURT ERRED BY

DENYING defendant-appellant’s motion for Resentencing, filed with the Court of

Common Pleas of Pickaway County, on or about June 9, of 2011.”

                                              II.

       {¶6} We will review Lofton’s assignments of error together. Essentially, Lofton

claims that the trial court erred in imposing postrelease control. As a result, Lofton

argues that he is entitled to a de novo sentencing hearing.
Pickaway App. No.11CA16                                                            3


       {¶7} To resolve Lofton’s appeal, we must interpret and apply the statutes related

to postrelease control and parole. Thus, our review is de novo. See State v. Jenkins,

4th Dist. No. 10CA3389, 2011-Ohio-6924, ¶ 9.

       {¶8} Here, Lofton was convicted of murder, “which is an unclassified felony to

which the post-release control statute does not apply.” State v. Silguero, 10th Dist. No.

11AP-274, 2011-Ohio-6293, ¶ 8, citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-

3748, 893 N.E.2d 462, ¶ 36; State v. Gripper, 10th Dist. No. 10AP-1186, 2011-Ohio-

3656, ¶ 10. “Instead of postrelease control, when an offender convicted of an

unclassified felony is released from prison he or she is subject to parole.” State v.

Evans, 8th Dist. No. 95692, 2011-Ohio-2153, ¶ 7, citing Clark at ¶ 36; R.C.

2967.13(A)(1). Therefore, the trial court erred when it imposed postrelease control.

See Silguero at ¶ 8. This error does not, however, entitle Lofton to a de novo

sentencing hearing.

       {¶9} When confronted with a similar issue, the Tenth Appellate District held the

following:

              In the case sub judice, the trial court included post-release

              control language in appellant’s sentence even though

              appellant was convicted of murder, an unclassified felony.

              Pursuant to [State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

              6238, 942 N.E.2d 332], and also Evans and [State v.

              Lawrence, 2d Dist. No. 24513, 2011-Ohio-5813], it is clear

              that this does not render appellant’s entire sentence void,
Pickaway App. No.11CA16                                                                4


              nor does it require a de novo sentencing hearing. Silguero

              at ¶ 16.

       {¶10} We agree with the Tenth Appellate District and apply the reasoning of

Silguero to the present case. “The Fischer court held that when postrelease control is

not properly imposed only the postrelease control part of the sentence is void, not the

entire sentence.” Evans at ¶ 10. And although “a trial court is required to notify a

defendant that he or she will be subject to post-release control, there is no similar

requirement that a trial court notify a defendant about parole supervision.” Silguero at ¶

15, citing Lawrence at ¶ 8. Therefore, Lofton is not entitled to a de novo sentencing

hearing. Silguero at ¶ 16. Instead, the proper remedy is “is to remand the matter for

the trial court to correct the sentencing entry to eliminate the postrelease control

language.” Evans at ¶ 9.

       {¶11} Accordingly, we find that the trial court erred by imposing postrelease

control as part of Lofton’s sentence. But the trial court’s error does not entitle Lofton to

a de novo sentencing hearing. Therefore, we affirm the trial court’s June 13, 2011

Decision and Entry. However, we also remand this matter and instruct the trial court to

correct the January 18, 2006 Entry of Sentence on Change of Plea by removing all

references to postrelease control.

                CAUSE REMANDED WITH INSTRUCTIONS; JUDGMENT AFFIRMED.
Pickaway App. No.11CA16                                                            5


Harsha, J., Concurring in Part and Dissenting in Part:

       {¶12} Although the majority concludes our decision “affirms” the trial court’s

judgment (in toto), see ¶¶1 and 11, I believe we are affirming in part and reversing and

remanding in part. Our decision concludes the trial court erred in imposing postrelease

control and it remands with instructions to correct this error. Therefore, I cannot concur

in a judgment that simply “affirms” the trial court’s judgment.
Pickaway App. No.11CA16                                                            6


                                  JUDGMENT ENTRY

      It is ordered that THIS CAUSE BE REMANDED WITH INSTRUCTIONS and that
the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.

      The Court finds that there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Pickaway County Common Pleas Court 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.

McFarland, J.: Concurs in Judgment and Opinion.
Harsha, J.:    Concurs in Part and Dissents in Part with 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.
