[Cite as State v. Arszman , 2014-Ohio-2727.]

Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed in Part, Sentence Vacated in Part, and Cause Remanded Date of Judgment Entry on Appeal: June 25, 2014

Joseph T. Deters , Hamilton County Pros ecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee, Christine Y. Jones, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar



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

STATE OF OHIO, Plaintiff-Appellee,

vs. TOBY ARSZMAN, Defendant-Appellant. :

:

:

:

: APPEAL NO. C-130133 TRIAL NO. B-1205912

O P I N I O N.O HIO F IRST D ISTRICT C OURT OF A PPEALS

2 H ILDEBRANDT , Presiding Judge.



### {¶1} Defendant-appellant Toby Arszman appeals the judgment of the Hamilton County Court of Common Pleas convicting him of gross sexual imposition under R.C. 2907.05(A)(1). 

### {¶2} On January 30, 2013, Arszman entered a guilty plea to the offense. In February 2013, Arszman was sentenced to 17 months’ imprisonment and was subsequently given credit for 185 days served as of the date of sentencing. The court also classified Arszman as a Tier II sex offender and imposed a five-year term of postrelease control.

Sex-Offender Classification 

### {¶3} In his first assignment of error, Arszman contends that the trial court erred in classifying him as a Tier II sex offender. He argues that, under the plain language of R.C. 2950.01(E)(1)(c), he was required to be classified as a Tier I sex offender. The state concedes the error, and we accordingly sustain the first assignment of error.

Postrelease Control 

### {¶4} In his second and final assignment of error, Arszman argues that the court erred in imposing the five-year te rm of postrelease control. He maintains

that the court failed to info rm him that a five-year term of postrelease control was mandatory for his conviction under R.C. 2907.05(A)(1). See R.C. 2967.28(B)(1). 

### {¶5} As this court has held, “with respect to each offense, a sentencing court [must] notify the offender, both at the sentencing hearing and in the judgment of conviction, of the length and mandator y or discretionary nature of postrelease

control * * *.” State v. Duncan, 1st Dist. Hamilton No. C-120324, 2013-Ohio-381, ¶O HIO F IRST D ISTRICT C OURT OF A PPEALS

3 13, citing State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 77- 79, and State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶

69. 

### {¶6} In this case, the trial court did not inform Arszman of the mandatory nature of postrelease control at the sentencing hearing. At the hearing, the court stated, “For a period of time up to five years, sir, you will be under the supervision of the Ohio Department of Corrections.” Thus, Arszman was not made aware that postrelease control was mandatory for the entire five-year term. 

### {¶7} Although the state emphasizes that the court included the correct term of postrelease control in its sentencing entry, the inclusion of the term in the entry was insufficient under our holding in Duncan. Moreover, because the record establishes that Arszman has now complete d his term of imprisonment, the trial court is without authority to correct the error. See Duncan at ¶ 15. Postrelease control was improperly imposed, and we sustain the second assignment of error.

Conclusion 

### {¶8} We vacate the sentence in part and remand the cause for the trial court to classify Arszman as a Tier I sex offender and to eliminate the imposition of postrelease control. In all other respects, we affirm the judgment of the trial court. Judgment affirmed in part, sentence vacated in part, and cause remanded.

H ENDON , J., concurs. D E W INE , J., concurs in part and dissents in part.

D E W INE , J., concurring in part and dissenting in part. 

### {¶9} I respectfully dissent from the portion of the majority’s decision that vacates the imposition of postrelease control.O HIO F IRST D ISTRICT C OURT OF A PPEALS

4 

### {¶10} Ohio law mandates that offender s who commit sex offenses serve five years of postrelease control. See R.C. 2967.28(B)(1). The sentencing entry fully complied with Ohio law. It provided that “[a]s part of the sentence in this case, the defendant shall be supervised by the adul t parole authority after defendant leaves prison, which is referred to as post-release control, for five (5) years.” Nonetheless, the majority vacates the post release-control term because it finds the trial court’s oral notification at sentencing to be insufficient. 

### {¶11} The court told Mr. Arszman that “[f]or a period of up to five years, * * * you will be under the supervision of the Ohio Department of Corrections.” This statement was absolutely correct. (The five-year term provided for in the statute is clearly encompassed within “up to five year s.”) Granted, the statement was not as precise as it could have been in that itdidn’t tell Mr. Arszman that his postreleasecontrol term would be exactly five years. But the court’ s notification, combined withthe sentencing entry, clearly put Mr. Arszman on fair notice of his postreleasecontrol term. In my view, the lack of precision in the trial court’s language here is hardly grounds to forever discharge Mr. Arszman from his postrelease-control obligations. 

### {¶12} There is nothing in statute that prescribes the precise words that a trial court must use in notifying a defendan t of his postrelease-control obligations. The statute simply requires that the court “[n]otify the offender that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison[.]” R.C. 2929.19(B)(2)(c). 

### {¶13} The majority correctly points out that we have previously interpreted this prov ision in conjunction with Ohio Supreme Court precedent to mean that a court “[must] notify the offender, both at the sentencing hearing and inO HIO F IRST D ISTRICT C OURT OF A PPEALS

5 the judgment of conviction, of the length and mandatory nature of postrelease

control * * *.” State v. Duncan , 1st Dist. Hamilton No. C-120324, 2013-Ohio-381, ¶ 13, citing State v. Ketterer , 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 77-79, and State v. Bloomer , 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 69. But to say that the trial cour t must provide both no tifications does not

mean that one notification ca nnot be informed by the other. Here, the “will be” for “up to five years” language standing alone was imprecise; but when read together with the sentencing entry, any imprecision was eliminated. 

### {¶14} As the Tenth Appellate District has pointed out, “the Supreme Court has not prescribed a ‘magic words’ test for imposing post-release control,” and even “when a term of post-release control is mandatory, the use of ‘up to’ language does not necessarily invalidate the imposition of post-release control.” State v.

Williams , 10th Dist. Franklin No. 10AP-922, 2011-Ohio-6231, ¶ 19. See also State v.

Jordan , 10th Dist. Franklin No. 13AP-674, 2014-Ohio-1193, ¶ 10 (“This court has consistently found that a trial court meet s its statutory obligation to notify a defendant of [postrelease control] ‘when its oral and written notifi cations, taken as a whole, properly informed the defendant of post-release control.’ ”). 

### {¶15} Neither of the two Ohio Supreme Court decisions, relied upon in

Duncan and cited by the majority, compels a contrary result. See State v. Ketterer , supra , and State v. Bloomer, supra . Those cases dealt with multiple errors in both the sentencing entry and the notification. In Bloomer , the court failed to orally notify the defendant of the le ngth of the postrelease-cont rol term, and the sentencing entry was wrong both as to the length and the mandatory nature of postrelease

control. Bloomer at ¶ 69. Likewise in Ketterer , the court found “at least four errors” in the imposition of postrelease control: the court advised of mandatory postreleaseO HIO F IRST D ISTRICT C OURT OF A PPEALS

6 control on the wrong counts, the sentencing entry incorrectly stated the counts to which the postrelease-control notification had been given, the entry did not properly explain the consequences of a violation, and the court had failed to follow the procedures of R.C. 2921.191. Ketterer at ¶ 78. Noting that it was a capital case, the court held “viewed cumulatively these errors cannot be considered harmless.” Id. 

### {¶16} In taking issue with the dissent, the majority in Ketterer stated

“this is not a case in which the trial cour t merely misspoke in regard to one point concerning postrelease control.” Id. But ours is such a case. And I do not believe the trial court’s imprecise statement warrants the drastic remedy imposed by the majority here. 

### {¶17} The objective of the statutory po strelease-control notification requirement is to ensure th at the defendant and other in terested parties know the

“nature and duration of the restrictions that have been imposed by the trial court on the defendant’s personal liberty.” Hernandez v. Kelly , 108 Ohio St.3d 395, 2006- Ohio-126, 844 N.E.2d 301, ¶ 31. This objective was met in this case. The sentencing entry and oral notification made all involved aware that the defendant would be supervised for five years. 

### {¶18} Here, there was nothing inaccu rate about either the oralnotification or the sentencing entry. The sentencing entry imposed the postreleasecontrol term that was mandated by law. Th e oral notification was imprecise in that while it made clear that postrelease contro l was mandatory, it didn’t spell out that the entire five-year period was mandatory. But as informed by the sentencing entry,

there was no confusion from the notification about Mr. Arszman’s postreleasecontrol obligations. In these circumstances, I believe Mr. Arsman received theO HIO F IRST D ISTRICT C OURT OF A PPEALS

7 notification required by R.C. 2967.28. So , I respectfully dissent from the majority’s decision to vacate that portion of his sentence.

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