[Cite as State v. Davis , 2022
- Ohio
- 2373.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO Plaintiff

- Appellee

v. SHAMARE DEONTE DAVIS Defendant

- Appellant : : : : : : : : : : Appellate Case No. 29316 Trial Court Case No s

. 2021

- CR

- 852 and 2021

- CR

- 2228 (Criminal Appeal from Common Pleas Court )

. . . . . . . . . . . O P I N I O N Rendered on the 8th day of July , 2022

.

. . . . . . . . . . . MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348 , Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff

- Appellee JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering, Ohio 45429 Attorney for Defendant

- Appellant

. . . . . . . . . . . . .

WELBAUM , J.- 2

- {¶ 1} Defendant

- appellant, Shamare De onte Davis, appeals from his conviction in the Montgomery County Court of Common Pleas after pleading guilty to aggravated veh icular homicide , operating a vehicle under the influence of alcohol or drugs (“OVI”) , and having weapons while under disability. In sup port of his appeal, Davis contends that the trial court e rred during his sentencing hearing when it failed to notify him of his postrelease

- control obligations and of the consequences of violating post release c ontrol

. The State concedes error in this regard , and we agree that the trial court erred by not addressing post release control at Davis’s sentencing hearing. Therefore, the trial court’s jud gment as to post re l ease control will be reversed , and the cause will be remanded to the trial court for the sole purpos e of resentencing Davis to post r elease control. In all other respects, the judgment will be affirmed.

Facts and Course of Proceedings {¶ 2} In April and August 2021, D avis was indicted for multiple offenses in two

s epa rate cases in the Montgomery County Court of Common Pleas. In Case No. 2021

- CR

- 852 , Davis was indicted on one count of aggravated vehicular homicide, a felony of the first degree, and three counts of OVI, a misdemeanor of the first degree. In Case No. 2021

- CR

- 2228, Davis was indicted on one count of having weapons while under disability, a felony of the third degree, and one count of improperly handling a firearm in a motor vehicle, a felony of the fourth degree. {¶ 3} On Oct ober 7, 2021, Davis entered a plea agreement and pled guilty to

a ggravated vehicular homicide and to one of the three OVI counts in Case No. 2021

- CR

-- 3

-

852. Davis also pled guilty to having weapons while under disability in Case No. 2021

- CR

- 2228. In exchange for Davis’s guilty pleas, the State dismissed the two remaining OVI counts and the count for improperly handling a firearm in a motor vehicle. {¶ 4} At Davis’ s plea hearing, the trial court engaged Davis in a plea colloquy during which the trial co urt notified Davis of the postrelease

- control obligations associated with aggravated vehicular homicide and having weapons while under disability. The trial court also briefly discussed the consequences for violating post relea se control . After providing the required advisements and accepting Davis’s guilty pleas , the trial court scheduled the matter for a sentencing hearing

. {¶ 5} O n O ctober 22, 2021, the trial court held a sentencing hearing for both cases. In Case No. 2021

- CR

- 852, the trial court sentenced D avis to an indefinite term of 5 to 7.5 years in priso n for aggravated vehicular homicide and to six days of incarceration for OVI

. The trial court ordered the six

- day period of incarceration to run concurrent to the prison
term imposed for aggravated vehi cular homicide

. The trial court also imposed a mandatory fine of $375 and placed a lifetime suspension on Davis’s driver’s lice nse

. {¶ 6} In Case No. 2021

- CR

- 2228, the trial court sentenced Davis to three years in prison for having weapons while under disabil ity and ordered that sentence to be served

con currently with the indefinite 5

- to
- 7.5

- year prison term imposed in Case No. 2021

- CR

852. In both cases, the trial court issued sentencing entries that notified Davis of his postrelease

- control obligations and of the consequences for violating post release control. T he trial court, however, did not make any postrelease

- control advisements at Davis’s sentencing hearing.- 4

- {¶ 7} Davis now appeals from his conviction, raising a single assignment o f error for review.

Assignment of Error {¶ 8} U nder his a ssignment of error, Davis contends that the trial court erred at his sentencing hearing when it failed t o notify him of his postrelease

- control obligations and of the consequences for violating post releas e control. The State concedes error in that regard , and we agree that the trial c ourt erred by not addressing postrelease control at Davis’s sentencing hearing. {¶ 9} Pursuant to R.C. 2929.19(B)(2)(d) and (e) , the trial court is required to notify the offender at his sentencing hearing that , depending on the degree of the offense in question, the offender either “will” or “may” be placed on postrelease control after he is released from prison. R.C . 2929.19(B)(2)(f) also requires the trial court to notif y the offender that if he violates post release control, “ the parole board may impose a prison
term , as part of the sentence, of up to one

- half of the definite prison term origi nally imposed up on the offender as the offender’ s stated prison term or up to on e - half of the minimum prison term originally imposed upon the offender as part of the offender’s stated

non - life felony indefinite prison term.” {¶ 10} In light of these statutory provisions, the Supreme Court of Ohio has explained that “[t] he trial court must a dvise the offender at the sentencing hearing of the term of [post release control] supervision, whether pos t release control is discretionary or mandatory, and the consequences of violating postrelease control. ” (Citation omitted.)- 5

-

State v. Bates , Ohio Sli p Opinion No. 2022

- Ohio

- 475,

__ N.E.3d

__ , ¶ 11. “[O] nce the court orally provides all the required advisements at the sentencing hearing, it must then incorporate those advisements into the sentencing entry. ” Id . at ¶ 12 , citing State v. Grimes , 151 Ohio St.3d 19, 201 7

- Ohio

- 2927, 85 N.E.3d 700, ¶ 8 , and State v. Jordan , 104 Ohio St.3d 21, 2004

- Ohio

- 6085, 817 N.E.2d 864, ¶ 17 , overruled on other grounds , State v. Harper

, 160 Ohio St.3d 480, 2020

- Ohio

- 2913, 159 N.E.3d 248. {¶ 11} In this ca se, the trial cour t notified Davis about his postrelease

- control obligations and the consequences for violating post release control during his plea hear ing and in the sentencing entry but failed to provide those notifications to Davis during his sentencing hearing. In fact , when the State asked th e trial court if it had addressed post release control during the sentencing he aring, the trial court indicated that post release control had already been covered during the plea hearing and did not need to be discussed any further. See Sentencing Tr. p. 30

- 31. That, however, is not what the law requires

. {¶ 12} As previously discussed, “ ‘a trial court has a statutory duty to provide notice of postrelease control at the sentencing hearing’ ” Bates at ¶ 11 , quoting Jordan at ¶ 23.

“ N otice of post release control at the plea hearing and in the sentencing entry d oes not correct the trial court ’ s fai lure to impose a term of post release control at the sentencing hearing.” (Citation omitted.) State v. Nascembeni , 8th Dist. Cu yahoga No. 109927 , 2022

- Ohio

- 1662, ¶ 12. Ther efore, the trial court erred when it failed to notify Davis of his postrelease

- control obligations and of the consequences for violating post release control at his sentencing hearing

.- 6

- {¶ 13} The Supreme Court of Ohio has explained that: “When a case is within a
court ’ s subject

- matter jurisdiction and the accused is properly before the court, any error in the exercise of that jurisdiction in imposing post re lease control renders the court’ s judgment voidable, permitting the sentence to be set aside if the error has been successfully challenged on direct appeal.” Harper , 160 Ohio St.3d 480, 2020

- Ohio

2913 , 159 N.E.3d 248 , at ¶ 4. Therefore, because the trial court did not properly impose post release control at Davis’s se ntencing hearing, D avis is entitled to have the
pos t re lease

- control portion of his sentence set aside and to have a new sentencing hearing limited t o the proper imposition of post release control. See State v. Heinzen, 2d Dist. Clark No. 2019

- CA

- 65, 2022

- Ohio

- 1341, ¶ 28 ; State v. Hibb l er , 2d Dist. Clark No. 2019

- CA

- 19, 2019

- Ohio

- 3689, ¶ 19 (“ It is well established that when post

- release control is required but not properly imposed, the trial court must conduct a limited resentencing heari ng to properly impose post

- release control. ”)

. {¶ 14} Davis’s sole assignment of error is sustained.

Conclusion {¶ 15} Having sustained Davis ’ s assignment of error, the judgment of the trial court is reversed with respect to the imposition of post release control, and t he cause is remanded to the trial court for the sole purpose of resentencing Davis to post release control in a manner that is consistent with this opinion. In all other respects, the judgment is affirmed.

. . . . . . . . . . . . .- 7

-

DONOVAN , J. and LEWIS , J. , concur.

Copies sent to: Mathias H. Heck, Jr. Lisa M. Light Jeffrey T. Gramza Hon. Richard Skelton