[Cite as State v. Lawrence , 2011-Ohio-5813.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 24513

v. : T.C. NO. 01CR459 PHILLIP H. LAWRENCE : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N

Rendered on the 10 th day of November , 2011.

. . . . . . . . . . CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W. Third Street, 5 th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee CARL G. GORALESKI, Atty. Reg. No. 0024351, 117 S. Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant PHILLIP H. LAWRENCE, #414996, Warren Corr ectional Institute, P. O. Box 120, Lebanon, Ohio 45036 Defendant-Appellant

. . . . . . . . . .

FROELICH, J.2 {¶ 1} On August 9, 2001, Phillip H. Lawrence was convicted by a jury of two counts of murder, each with a firearm specification. Th e trial court sentenced him to a term of 15 years to life on each murder conviction and to three years on each fi rearm specification. The two murder sentences were merged, as were the firearm specifications, for a sentence of 18 years to life. The judgment entry also provided that, with respect to both counts, Lawrence would be subject to a period of post -release control if he were released from prison. Lawrence timely appealed his c onviction, and this Court affirmed. State v.

Lawrence , Montgomery App. No. 19059, 2002-Ohio-5533. {¶ 2} In October 2010, Lawrence filed a pro se “Motion to Vacate and Void Sentence With Full Allocution Rights and Law Entry.” Lawrence argued that the judgment entry failed to comport with Crim.R. 32(C) because it failed to se t forth his plea and, thus, the entry was not a final appealable order. He fu rther argued that the imposition of post-release control was contrary to law a nd rendered the judgment void. The trial court overruled that motion without a hearing, stating that the imp roper imposition of post-re lease control did not render the judgment void and that the verdict had been properly included in the judgment entry, as required by Crim.R. 32(C). Lawr ence appealed from the trial court’s order. State

v. Lawrence , Montgomery App. No. 24389. That a ppeal was subsequently dismissed. {¶ 3} On February 1, 2011, Lawrence was broug ht before the trial court “for re-sentencing.” At this re-sentencing hearing, the prosecutor informed the trial court that “we’re here today to simply correct that th e defendant will be on pa role, not PRC, upon his release from prison.” The cour t reiterated Lawrence’s sentence, told him that he was to submit a DNA specimen, found him ineligible fo r shock incarceration or intensive prison3 program, and informed him that he would be subject to parole upon his release from prison. The following day, the trial court filed a “Nunc Pro Tunc Termination En try” consistent with the re-sentencing hearing, including that Lawrence would be on parole, not post-release control, following his release. Lawrence appeals from the revised judgment entry. {¶ 4} Lawrence’s counsel has f iled a brief pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493, stating th at after a thorough review of the record, no meritorious issues for appellate review were f ound. Lawrence was informed of his counsel’s brief, and he was gr anted time in order to file a pr o se brief. No pro se brief

has been filed. We have conducted an independent review of the record. Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300. {¶ 5} In his brief, appellate c ounsel does not raise any poten tial assignments of error. Based on our review of the record, the issues before us are limited to whether the trial court was correct in changing the judgment entry to reflect parole, rather than post-release control, and whether there was any arguable error in the trial court’s re-sentencing hearing. {¶ 6} We find no arguable error in the trial court’s imposition of parole supervision, rather than post-release control. In 2001, Lawrence was convicted and sentenced for murder, with a firearm specification; his se ntence was life imprisonment, although he was eligible for release after 18 years. Under R.C. 2901.02, murder is an unclassified felony. The post-release control stat ute (R.C. 2967.28) does not appl y to those convicted of

unclassified felonies. State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, ¶36; R.C. 2967.28. Instead, when a person convicted of an unclassified felony is released from prison, that person is subject to parole. Id.; R.C. 2967.13(A)(1). Based on Lawrence’s4 conviction for an unclassified felony, the tria l court properly revise d Lawrence’s judgment entry to reflect that he woul d be subject to parole if he were released from prison. {¶ 7} In addition, we find no potentially meritori ous issues based on the trial court’s handling of Lawrence’s re-sentencing. A sentencing entry which incorrectly imposes post-release control does not re nder the entire sentence void. State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, ¶26. Rather, only th at portion of the judgment which improperly imposes post-releas e control is void. Id.; State v. Evans , Cuyahoga App. No. 95692, 2011-Ohio-2153, ¶8-9. Thus, under Fischer , the portion of Lawrence’s judgment entry improperly imposing post-release control was void, and the remainder of his sentence

was valid. Fischer at ¶29. See, also, Evans , supra. {¶ 8} The Supreme Court has held that, wher e the trial court improperly imposes post-release control, the new sentencing hearing is limited to the proper imposition of post-release control. Fischer at ¶29. We note, however, that whereas R.C. 2929.19 requires a trial court to properly notify a defendant that he or she will be subject to post-release control, there is no similar requi rement in R.C. 2929.19 to notify a defendant regarding parole supervision. We find no othe r authority that require d the trial court to

inform Lawrence that he would be subject to parole supervis ion if he were released from prison. Accordingly, it is questionable whet her the trial court wa s required to hold a re-sentencing hearing to notify Lawrence that he was subject to parole, rather than post-release control, upon his release. {¶ 9} Even assuming that a re-sentencing hearing was required, Lawrence was brought before the trial court for re-sentencing for the limited purpose of informing him that5 he would be subject to parole, not post-release control, if he were released from prison. No other change to Lawrence’s sentence was made; Lawrence was informed of and received the same sentence that had been previously imposed in 2001. The tr ial court’s revised judgment entry (with one paragr aph regarding post-release control crossed-out) reflected that Lawrence’s sentence included parole supervisi on if he were releas ed, and the entry was otherwise the same as the 2001 judgment entr y. Accordingly, we find no issue with arguable merit arising from the trial court’s re-sentencing hearing. {¶ 10} Having conducted an independe nt review of the record, in addition to the brief filed by appellant's counsel, we find this appeal to be wholly frivolous. There are no meritorious issues for appeal. {¶ 11} The trial court’s judgment will be affirmed.

. . . . . . . . . . FAIN, J. and HALL, J., concur. Copies mailed to: Carley J. Ingram Carl G. Goraleski Phillip H. Lawrence Hon. Gregory F. Singer