[Cite as State v. McCreery , 2011-Ohio-5885.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

LAWRENCE COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 10CA17 

 : 

 vs. : RELEASED: November 3, 2011 

 : 

NICHOLAS C. McCREERY, : DECISION AND JUDGMENT

 : ENTRY

 Defendant-Appellant. : 

_____________________________________________________________ 

APPEARANCES:

David Reid Dillon, South Point, Ohio, for Appellant. 

J.B. Collier, Jr., Lawrence County Prosecutor, and Jeffrey M. Smith 

Lawrence County Assistant Prosecutor, Ironton, Ohio, for Appellee. 

_____________________________________________________________ 

McFarland, J.: 

{¶1} Defendant-Appellant, Nicholas McCreery, appeals the 

decision of the Lawrence County Court of Common Pleas convicting him of 

three counts of burglary and one count of resisting arrest. Appellant argues 

there was error below in that 1) the trial court resentenced him without first 

vacating his original sentence, and; 2) he had ineffective assistance of 

counsel. After reviewing the record below, we find neither assignments of 

error are warranted. Here the trial court's resentencing only applied to the 

issue of post-release control, and it was rectified at McCreery's resentencing. 
Lawrence App. No. 10CA17 2 

Therefore, we overrule his first assignment of error. Further, Appellant 

presents no evidence that, but for his trial counsel's errors, he would not 

have pleaded guilty, we also overrule his second assignment of error. As 

such, we affirm the decision of the court below. 

I. Facts 

{¶2} In November 2009, Appellant and an accomplice, Christy 

Stone, were arrested for the burglaries of three separate residences in 

Lawrence County. The Appellant was subsequently indicted on three counts 

of burglary in violation of R.C. 2911.12(A)(2), a second-degree felony, and 

one count of resisting arrest in violation of R.C. 2921.33(A), a seconddegree misdemeanor. 

{¶3} In January 2010, when the matter came on for pretrial, 

Appellant accepted a plea agreement and pleaded guilty to all charges 

against him. On January 20, the trial court sentenced him to four years on 

each burglary count, to be served consecutively, and thirty days in jail for 

the resisting arrest charge, to be served concurrently with the burglary 

sentences. At that January 20 sentencing hearing, the court misstated the 

conditions of Appellant’s post-release control. The court failed to indicate 

that post-release control would be mandatory, and would be for three years 
Lawrence App. No. 10CA17 3 

for the second-degree felonies for which Appellant was convicted. After the 

court journalized its sentence on February 4, Appellant filed an appeal. 

{¶4} Before the record could be transmitted on appeal, the trial 

court scheduled a resentencing hearing. At that hearing, held on April 8, the 

court noted the deficiencies of its January 20 sentencing, and then fully 

informed Appellant of the conditions of post-release control. The appeal of 

the trial court's first sentence was dismissed by mutual agreement and the 

current appeal of Appellant resentencing followed. 

II. Assignments of Error 

First Assignment of Error 

THE TRIAL COURT ERRED IN RE-SENTENCING DEFENDANT 

WITHOUT VACATING THE PRIOR JUDGMENT ENTRY. 

Second Assignment of Error 

THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF 

COUNSEL. THUS RENDERING HIS GUILTY PLEA 

INVOLUNTARY. 

III. First Assignment of Error 

{¶5} In his first assignment of error, Appellant argues that the trial 

court erred in resentencing him without first vacating his original sentence. 

As previously stated, the trial court resentenced Appellant on April 8, 2010, 

because during the original sentencing hearing, it had failed to accurately 

inform him of the conditions of post-release control. He now argues that 
Lawrence App. No. 10CA17 4 

because the trial court did not vacate its prior judgment entry, the court was 

divested of jurisdiction to resentence him. As such, he contends the case 

must be remanded, his original sentence vacated, and only then may he be 

resentenced. Because of the recent decision of the Supreme Court of Ohio 

in State v. Fischer, --- N.E.2d ----, 2010-Ohio-6238, we disagree. 

{¶6} In Fischer, the Court made a distinction between the part of a 

sentence concerning post-release control and the rest of the sentence. The 

Court held “that when a judge fails to impose statutorily mandated 

postrelease control as part of a defendant's sentence, that part of the sentence 

that is void and must be set aside. Neither the Constitution nor common 

sense commands anything more.” Id. at ¶26. Thus, the Court found that 

“only the offending portion of the sentence is subject to review and 

correction.” Id. at ¶27. 

{¶7} Applying the holding in Fischer to the case sub judice, we 

find that Appellant’s sentence, except for the portion concerning postrelease 

control, was valid, neither void nor voidable, and not subject to remand. 

Further, we find that because of the trial court’s misstatements concerning 

postrelease control, that portion of the January 20 sentence was void. 

Because that portion of Appellant’s sentence, and only that portion of his 

sentence, was void, the trial court had no need to vacate it, and it properly 
Lawrence App. No. 10CA17 5 

resentenced Appellant on post-release control at the April 8 hearing. 

Accordingly, his first assignment of error is overruled. 

IV. Second Assignment of Error 

{¶8} Appellant’s second assignment of error is that he had 

ineffective assistance of trial counsel. As previously noted, Appellant 

pleaded guilty on all counts. We, therefore state the appropriate standard of 

review for a claim of ineffective assistance of counsel in such instances. 

{¶9} In order to establish ineffective assistance of counsel, an 

appellant must show that counsel’s representation was both deficient and 

prejudicial. In re Sturm, 4th Dist. No. 05CA35, 2006-Ohio-7101, at ¶77; 

Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052. 

Deficient representation means counsel’s performance was below an 

objective standard of reasonableness. Id. To show prejudice, an appellant 

must show it is reasonably probable that, except for the errors of his counsel, 

the proceeding’s outcome would have been different. Id. 

{¶10} We have stated that “[a] reviewing court when addressing an 

ineffective assistance of counsel claim, should not consider what, in 

hindsight, may have been a more appropriate course of action.” State v. 

Wright, 4th Dist. No. 00CA39, 2001-Ohio-2473, at *22. Instead, reviewing 

courts must be highly deferential. Id. Further, “a reviewing court: ‘must 
Lawrence App. No. 10CA17 6 

indulge a strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance; that is, the defendant must 

overcome the presumption that, under the circumstances, the challenged 

action ‘might be considered sound trial strategy.’” Id., citing Strickland. 

{¶11} A defendant asserting an ineffective assistance claim related 

to a guilty plea faces a further requirement. “To show that a defendant has 

been prejudiced when the defendant has pled guilty, the proponent must 

prove that there is a reasonable probability that, were it not for counsel's 

errors, the defendant would not have pled guilty.” State v. Parker (Jan. 6, 

1998), 4th Dist. No. 96CA35, at *2. See, also, State v. Martin, 4th Dist. No. 

06CA3110, 2007-Ohio-4258, at ¶21. 

{¶12} In his brief, Appellant claims he never received the discovery 

in his case and because he was unable to review the evidence against him, he 

was unable to make an informed judgment as to whether or not to plead 

guilty. For the following reasons, we disagree with Appellant 's argument 

and find that his assignment of error has no merit. 

{¶13} First, it is undisputed that the State fully answered Appellant’s 

discovery demands. The case docket shows that on December 15, 2009, the 

State answered Appellant 's discovery request and that it updated and 

completed its discovery production on December 22. That discovery 
Lawrence App. No. 10CA17 7 

included Christy Stone's statement to the police regarding the burglaries, in 

which she confessed both to her own involvement and to Appellant 's 

involvement. The discovery also included Appellant 's own statement to the 

police. Like Stone, Appellant also confessed to participating in multiple 

burglaries. 

{¶14} In his reply brief, Appellant states “the state argues that 

discovery was given to defendant's counsel. However, that does not mean 

that defendant received it.” Even if we disregard the fact that Appellant 

provides no evidence to substantiate this bare assertion, and accept his 

statement as true, his argument still fails. 

{¶15} To establish ineffective assistance of counsel, Appellant has 

to prove there is a reasonable probability that, were it not for his trial 

counsel's errors, he would not have pleaded guilty. Here, he points out no 

inconsistencies in his or Stone’s statements, no mitigating evidence, no 

evidence of coercion in the confessions, nor any other factor from which we 

could reasonably conclude that, had Appellant been aware of, he would not 

have pleaded guilty. 

{¶16} In the following statement, Appellant, himself, acknowledges 

the lack of evidence demonstrating that, but for his trial counsel's errors, he 

would have pleaded otherwise: “To be sure, there must usually be some 
Lawrence App. No. 10CA17 8 

indicium on the record supporting the claim of ineffective assistance of 

counsel. However, in the present case, there was no opportunity to put the 

failure to receive discovery on the record.” We agree that there is no 

evidence in the record supporting his ineffective assistance claim, but 

disagree that Appellant may still maintain that claim in the absence of such 

evidence. Accordingly, we also overrule Appellant’s second assignment of 

error. 

 JUDGMENT AFFIRMED.

Kline, J., dissenting, in part. 

{¶17} I respectfully dissent as to the first assignment of error. 

“[T]he Supreme Court of Ohio has held that a trial court retains continuing 

jurisdiction to correct a void sentence.” State v. King, Cuyahoga App. No. 

95233, 2011–Ohio–1079, at ¶7, citing State ex rel. Cruzado v. Zaleski, 111 

Ohio St.3d 353, 2006–Ohio–5795, at ¶19. Therefore, I believe that the trial 

court was authorized to correct the void portion of McCreery’s sentence at 

the April 8, 2010 sentencing hearing. And because I do not believe that 

McCreery’s sentence resulting from the April 8, 2010 hearing is “void,” I 

would overrule McCreery’s first assignment of error. 

{¶18} I concur in judgment and opinion with the second 

assignment of error. 
Lawrence App. No. 10CA17 9 

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and that the 

Appellee recover of Appellant 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 Lawrence 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. 

Harsha, P.J.: Concurs in Judgment and Opinion. 

Kline, J.: Dissents with Dissenting Opinion as to Assignment of Error No. I; 

Concurs in Judgment and Opinion as to Assignment of Error No. II. 

 For the Court, 

 BY: _________________________ 

 Judge Matthew W. McFarland 

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.