[Cite as State v. Loyed, 2014-Ohio-5141.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 101054 

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs. 

TYRONE LOYED

 DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED IN PART AND VACATED IN PART 

 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-02-430383-ZA 

BEFORE: Stewart, J., Celebrezze, P.J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: November 20, 2014 
FOR APPELLANT

Tyrone Loyed, pro se 

Inmate No. 450-176 

Marion Correctional Institution 

P.O. Box 57 

Marion, OH 43302 

ATTORNEYS FOR APPELLEE 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Amy Venesile 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 9th Floor 

Cleveland, OH 44113 

MELODY J. STEWART, J.: 
{¶1} Defendant-appellant Tyrone Loyed, pro se, appeals the judgment of the Cuyahoga 

County Court of Common Pleas denying his motion to vacate sentence. For the following 

reasons, we affirm in part and reverse in part. 

{¶2} On May 20, 2003, a jury convicted Loyed of aggravated murder in violation of R.C. 

2903.01, enhanced with a firearm specification, and having a weapon while under disability in 

violation of R.C. 2923.13. On May 27, 2003, the court sentenced Loyed to a three-year term of 

imprisonment on the firearm specification, 20 years to life on the aggravated murder charge, and 

11 months on the disability charge. The court ordered the firearm specification to be served 

consecutively with, and prior to, the aggravated murder, and ordered the disability charge to be 

served concurrent with the aggravated murder charge. At sentencing the court ordered 

postrelease control for a term of up to and including five years. The sentencing entry ordered a 

term of postrelease control for the “maximum period allowed for the felony(s) under R.C. 

2967.28.” 

{¶3} On June 25, 2003, Loyed filed a direct appeal and this court affirmed his 

convictions. State v. Loyed, 8th Dist. Cuyahoga No. 83075, 2004-Ohio-3961. In his direct 

appeal, Loyed’s only assignments of error related to an alleged improper jury instruction and an 

alleged improper limitation of testimony at trial. Id. Loyed never raised any assignments of 

error relating to his sentence or the impropriety of his conviction on the weapon disability charge. 

Id. Then, on December 12, 2013, appellant filed a motion captioned “Motion to Vacate 

Sentence” with the trial court. In his motion, Loyed argued that the court should vacate his 

sentence because the court improperly imposed postrelease control. His motion also argued that 

the trial court erred in convicting him of the disability charge because his prior felony conviction 
that established the disability charge was also void due to the improper imposition of postrelease 

control. On February 10, 2014, the trial court denied Loyed’s motion to vacate his sentence. 

{¶4} In his first assigned error, Loyed offers two reasons why the imposition of 

postrelease control was void in this case. First, Loyed argues that the court improperly imposed 

postrelease control because he was not advised of the consequences of a postrelease control 

violation — specifically he argues that he was not advised that he could be returned to prison for 

up to one half of his original sentence for a violation of the terms of postrelease control. 

{¶5} It is mandatory that every person ordered to serve a term of postrelease control be 

notified of the consequences for a violation of postrelease control. State v. Bezak, 114 Ohio 

St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 8. However, the record reflects that Loyed was 

advised at sentencing that he was subject to postrelease control and was advised of the potential 

consequences for a violation of the terms of postrelease control. According to the sentencing 

transcript the court stated: 

And Mr. Loyed, the Post-Release Control consequences to the extent that if you 

ever are released, you will be on Post-Release Control for a period of up to five 

years. And it could have conditions attached. Any violation of any conditions 

that might be attached to Post-Release Control, could result in additional 

consequences up to and including re-indictment, and/or re-incarceration for up to 

one-half of the original sentence. 

Therefore, we find no merit to Loyed’s argument that postrelease control was improperly 

imposed because he was not notified of the consequences of a violation. 

{¶6} Next, Loyed argues that the court improperly imposed postrelease control because it 

did not distinguish between the aggravated murder charge and the disability charge when 

attaching postrelease control to his sentence. Loyed argues that a conviction for aggravated 

murder is not subject to postrelease control and therefore his sentence is void. 
{¶7} Aggravated murder is an unclassified felony that is not subject to postrelease 

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

“[A]n individual sentenced for aggravated murder is not subject to post-release control because 

that crime is an unclassified felony to which the postrelease control statute does not apply.”). 

Therefore, if the trial court imposed postrelease control as part of the sentence for Loyed’s 

aggravated murder conviction, that portion of the sentence would be void and subject to a proper 

collateral attack. State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 10, 

citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph two of 

the syllabus. 

{¶8} However, the crime of having a weapon while under disability is a classified 

third-degree felony. R.C. 2923.13 (B). The postrelease control statute, R.C. 2967.28, requires 

that an offender convicted of a third-degree felony be subject to a period of postrelease control 

for up to three years after the offender’s release from prison, if the parole board determines that a 

period of postrelease control is necessary for that offender. R.C. 2967.28(C). R.C. 2967.28(C) 

has come to be known as discretionary postrelease control. See Watkins v. Collins, 111 Ohio 

St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, ¶ 44. Pursuant to R.C. 2967.28(C), a trial court 

must inform a defendant at sentencing that discretionary postrelease control is part of his 

sentence. Id. citing Woods v. Telb, 89 Ohio St.3d 504, 513, 733 N.E.2d 1103 (2000).1

 

 1

 It is a requirement that the courts advise offenders that they will be subject to mandatory or 

discretionary postrelease control, if either applies under R.C. 2967.28. The “discretionary” aspect of 

discretionary postrelease control refers to the parole board’s discretion in deciding the length of 

postrelease control, if the parole board determines that postrelease control is necessary for the 

offender. See R.C. 2967.28(C); Telb at 511–512. 
{¶9} Consequently, because the trial court was required to inform Loyed that 

discretionary postrelease control was part of his sentence, and Loyed has failed to point to any 

evidence in the record that shows that the trial court imposed postrelease control on the 

aggravated murder conviction, we presume that the trial court imposed postrelease control on the 

disability charge when it ordered the term of postrelease control. State v. Bonds, 8th Dist. 

Cuyahoga No. 83866, 2004-Ohio-3483, ¶ 14 (explaining that the court presumes regularity when 

the appellant does not provide the reviewing court with a record of facts, testimony, and evidence 

supporting his assignment of error). 

{¶10} However, we find that the trial court did err by imposing the wrong period of 

postrelease control on the conviction for the disability charge. In State v. Fischer, 128 Ohio 

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court stated that postrelease 

control is void if the court fails to follow the statutory mandates required to impose postrelease 

control. Id. at ¶ 10, 26. R.C. 2967.28(C) mandates that a court advise an offender convicted of a 

third-degree felony that he will be subject to a term of postrelease control up to three years. 

Here, the trial court wrongly notified Loyed that he would be subject to postrelease control for up 

to five years. Because the trial court failed to follow the requirements of the postrelease control 

statute, the portion of Loyed’s sentence relating to postrelease control is void. See Fischer at 

paragraphs one and two of the syllabus. 

{¶11} Traditionally, we would remand to the trial court for resentencing when we find 

that the court improperly imposed postrelease control. See id. at paragraph two of the syllabus. 

However, where an appellant has already served his prison sentence on an offense, he may not be 

resentenced to postrelease control on that offense, regardless of whether the offender is still in 

prison for other offenses. State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 
382, ¶ 19. Thus, because Loyed has already served his prison sentence on the disability charge, 

we must vacate the order of postrelease control. If Loyed should ever be released from prison, 

he will not be subject to postrelease control, rather he will be subject to parole supervision on the 

aggravated murder charge. 

{¶12} In his second assignment of error, Loyed argues that the trial court erred by 

convicting him of the disability charge because his prior conviction for preparation of drugs for 

sale under R.C. 2925.07, that was the basis for the disability charge, was void due to the court’s 

failure to impose postrelease control in that case. We disagree. 

{¶13} Even assuming, without deciding, that the court failed to properly impose 

postrelease control in Loyed’s drug case, this failure would have no impact on the validity of his 

later disability conviction. Loyed argues that because a conviction is the combination of a guilty 

finding and a sentence, see State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 

512, ¶ 17, an invalid sentence renders his conviction void. While the proposition of law is 

correct, what Loyed fails to understand is that the improper imposition of postrelease control 

does not render a sentence invalid. In Fischer, the Ohio Supreme Court explained, in no 

uncertain terms, that the failure to advise a defendant of postrelease control at sentencing or the 

failure to properly impose postrelease control in the journal entry, does not render a sentence 

void. See Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 9; see also State v. 

Bradford, 8th Dist. Cuyahoga No. 97283, 2012-Ohio-1058, ¶ 12; State v. Woods, 8th Dist. 

Cuyahoga No. 96487, 2011-Ohio-5825, ¶ 6. Rather, only that portion of the sentence 

improperly imposing postrelease control is void. Fischer at ¶ 9. While the void portion of the 

sentence relating to postrelease control may be reviewed at any time on direct appeal or by 
collateral attack, the doctrine of res judicata applies to the other aspects of a conviction, including 

the guilt phase and the lawful elements of the sentence. Id. at ¶ 40. 

{¶14} Loyed never challenged the propriety of his prior drug conviction when he had the 

opportunity to do so on direct appeal, thus his drug conviction remains valid. Because Loyed’s 

drug conviction was valid at the time he committed the aggravated murder, the trial court did not 

err by refusing to vacate his disability conviction. Loyed’s second assignment of error is 

overruled. 

{¶15} Loyed’s convictions are affirmed, but the portion of his sentence related to 

postrelease control is vacated. 

It is ordered that appellant and appellee share 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 Cuyahoga County 

Court of Common Pleas to carry this judgment into execution. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

 

MELODY J. STEWART, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

EILEEN T. GALLAGHER, J., CONCUR