[Cite as State v. Lincoln, 2011-Ohio-6618.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

WASHINGTON COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 10CA16 

 : 

 vs. : Released: December 9, 2011 

 : 

WESLEY DUANE LINCOLN, : DECISION AND JUDGMENT 

 : ENTRY

 Defendant-Appellant. : 

_____________________________________________________________ 

APPEARANCES:

Chandra L. Ontko, Cambridge, Ohio, for Appellant. 

James E. Schneider, Washington County Prosecutor, and Alison L. 

Cauthorn, Washington County Assistant Prosecutor, Marietta, Ohio, for 

Appellee. 

_____________________________________________________________ 

 

McFarland, J.: 

{¶1} This is an appeal from a Washington County Court of Common 

Pleas judgment entry, issued after holding a re-sentencing hearing in order to 

properly impose a mandatory five year term of post release control. On 

appeal, Appellant contends that 1) the trial court’s failure to include in the 

sentencing entry that the period of post release control was a mandatory 

period made his original sentence void; and 2) the trial court erred in not 

providing adequate notice to him of the re-sentencing hearing. 
Washington App. No. 10CA16 2

{¶2} In light of our conclusion that Appellant was properly 

resentenced in accordance with State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, Appellant’s first assignment of error is 

overruled. Further, although Appellant claimed insufficient notice of the 

hearing, as he appeared at the hearing, with counsel, was afforded an 

opportunity to make a statement and did not request a motion to continue, 

his second assignment of error is overruled. Accordingly, the judgment of 

the trial court is affirmed. 

FACTS 

{¶3} On August 12, 2004, Appellant was originally sentenced to a ten 

year term of imprisonment after pleading guilty to rape, a felony of the first 

degree in violation of R.C. 2907.02(A)(1)(b). In addition to imposing a 

prison term, the trial court advised Appellant that he was subject to a 

mandatory five year term of post release control. However, the sentencing 

entry dated August 27, 2004, stated that Appellant “may be subject to a 

period of post release control in this case for five (5) years.” 

{¶4} On November 19, 2009, Appellant filed a motion for resentencing. In response, on December 15, 2009, the trial court filed a nunc 

pro tunc entry ordering that Appellant “WILL BE SUBJECT to a period of 

Post Release Control for a period of five (5) years[.]” There is no indication 
Washington App. No. 10CA16 3

from the record that a hearing was held prior to the issuance of this nunc pro 

tunc order. Subsequently, on April 16, 2009, the State filed a motion to 

return Appellant from the Noble Correctional Institution for a re-sentencing 

hearing on May 27, 2010. Appellant was transported and a re-sentencing 

hearing was held on May 27, 2009. Appellant was present at the hearing 

with counsel, who lodged objections on Appellant’s behalf, including an 

objection that Appellant had not received sufficient notice of the hearing. 

{¶5} The trial court, in re-sentencing Appellant, gave Appellant and 

his counsel an opportunity to make a statement, and then proceeded to resentence Appellant to the same terms as before, while correcting the 

language regarding the mandatory nature of post release control. A journal 

entry was filed by the trial court on June 3, 2009, and it is from this entry 

that Appellant brings his timely appeal, assigning the following errors for 

our review. 

ASSIGNMENTS OF ERROR 

“I. THE DEFENDANT ALLEGES THAT THE TRIAL COURT’S 

FAILURE TO INCLUDE IN THE SENTENCING ENTRY THAT 

THE DEFENDANT’S PERIOD OF POST RELEASE CONTROL 

WAS A MANDATORY PERIOD MADE HIS ORIGINAL 

SENTENCE VOID. 

II. THE DEFENDANT ALLEGED THAT THE TRIAL COURT 

ERRED IN NOT PROVIDING ADEQUATE NOTICE TO THE 

DEFENDANT OF THE RESENTENCING HEARING.” 
Washington App. No. 10CA16 4

ASSIGNMENT OF ERROR I 

{¶6} In his first assignment of error, Appellant contends that the trial 

court’s failure to include, in his original sentencing entry, that the period of 

post release control was a mandatory period made his original sentence void. 

Specifically, Appellant contends that the trial court was required to vacate 

his original sentence and re-sentence him, rather than just modify or correct 

his original sentence. The State responds by contending that Appellant was 

properly re-sentenced under R.C. 2929.191, in accordance with State v. 

Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958. Based 

upon the following, we disagree with the arguments advanced by both 

Appellant and the State. 

{¶7} By enacting R.C. 2929.191, effective date July 11, 2006, the 

legislature promulgated a statutory remedy for trial courts to use to correct 

an error in imposing post release control. State v. Singleton at paragraph one 

of the syllabus. In Singleton, the Supreme Court of Ohio reasoned as 

follows with respect to the retroactive application of R.C. 2929.191: 

“for sentences imposed prior to July 11, 2006, in which a trial court failed to 

properly impose postrelease control, trial courts shall conduct a de novo 

sentencing hearing in accordance with decisions of the Supreme Court of 

Ohio. However, for criminal sentences imposed on and after July 11, 2006, 

in which a trial court failed to properly impose postrelease control, trial 

courts shall apply the procedures set forth in R.C. 2929.191.” 
Washington App. No. 10CA16 5

Thus, R.C. 2929.191 applies only prospectively and essentially provides that 

if a trial court fails to properly impose post release control, after a hearing, it 

may issue a nunc pro tunc entry correcting the error. 

{¶8} Appellant herein was sentenced prior to the effective date of 

R.C. 2929.191. Thus, the reasoning set forth in Singleton would seem to 

dictate that the trial court conduct a de novo sentencing hearing. However, 

after Appellant filed this appeal, the Supreme Court of Ohio overruled or 

largely altered its holdings in Singleton and its progeny. In Fischer, supra, 

the Court reaffirmed that a sentence that failed to include the statutorily 

required post release control term is void. Id.1

 at paragraph one of the 

syllabus. However, the only part of the sentence that is “void” is the portion 

that fails to comply with the requirements of post release control statutes. 

Therefore, “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.” Id . at ¶ 26. But “the new sentencing hearing to 

which an offender is entitled * * * is limited to proper imposition of 

postrelease control.” Id. at ¶ 29. 

{¶9} Here, the trial court first issued a nunc pro tunc entry without 

holding a hearing. Subsequently, Appellant was conveyed from prison to 

 

1

 We apply Fischer retroactively. See, State v. Deaver, Meigs App. No. 10CA7, 2011-Ohio-1393; State v. 

Vance, Meigs App. No. 10CA4, 2011-Ohio-780, at ¶¶ 10-11, citing Peerless Elec. Co. v. Bowers (1955), 

1964 Ohio St. 209, 129 N.E.2d 467. 
Washington App. No. 10CA16 6

attend a re-sentencing hearing. At that hearing, Appellant was afforded 

counsel, as well as an opportunity to make a statement. The trial court’s 

sentencing entry issued after the hearing properly included language 

indicating that the five year term of post release control was mandatory. The 

entry also stated that the hearing “was being conducted to make changes to 

the entry with regard to the post release control aspect of the order.” As 

such, we conclude that the trial court’s actions in conducting a hearing and 

issuing a corrected journal entry properly remedied the omission in the 

original sentencing entry and were in accordance with State v. Fischer, 

supra. Accordingly, Appellant’s first assignment of error is overruled. 

ASSIGNMENT OF ERROR II 

{¶10} In his second assignment of error, Appellant contends that the 

trial court erred in not providing him adequate notice of the re-sentencing 

hearing. Appellant claims that had he been provided with enough notice, he 

could have subpoenaed witnesses to speak on his behalf, which he argues, 

would have changed the sentence he received. 

{¶11} In considering Appellant’s first assignment of error, we 

determined that Appellant was properly re-sentenced in accordance with 

State v. Fischer, supra. As such, the trial court was not required to actually 

hold a de novo sentencing hearing. Instead, the trial court was simply 
Washington App. No. 10CA16 7

required to hold a re-sentencing hearing and issue a corrected entry. 

Appellant was permitted to attend the hearing in person, and was appointed 

counsel, who lodged objections on his behalf. Appellant was also permitted, 

though he declined, to make a statement. We further note that Appellant did 

not request a continuance. 

{¶12} We conclude that considering the purpose of the hearing was 

limited to the proper imposition of mandatory post release control, a matter 

over which the trial court has no discretion, Appellant was not prejudiced by 

not being able to subpoena witnesses to speak on his behalf. Accordingly, 

Appellant’s second assignment of error is overruled and the judgment of the 

trial court is affirmed. 

JUDGMENT AFFIRMED. 
Washington App. No. 10CA16 8

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 Washington 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., and Kline J: Concur in Judgment and Opinion. 

 For the Court, 

BY: _________________________ 

 Matthew W. McFarland, 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.