[Cite as State v. Davis, 2011-Ohio-6025.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 10 MA 160 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

LAWRENCE DAVIS ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Mahoning County, 

Ohio 

Case No. 05 CR 193 

JUDGMENT: Modified and Remanded. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Paul J. Gains 

Mahoning County Prosecutor 

Atty. Ralph M. Rivera 

Assistant Prosecuting Attorney 

21 West Boardman Street, 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant: Lawrence Davis, Pro se 

#494-988 

Mansfield Correctional Institution 

P.O. Box 788 

Mansfield, Ohio 44901 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

Dated: November 18, 2011 
-2-

WAITE, P.J. 

{1} Appellant Lawrence Davis argues that the trial court failed to properly 

notify him that he would be subject to post-release control after he was convicted of 

five counts of trafficking in cocaine. Appellant contends that his sentence is void due 

to the trial court’s error under the holdings of State v. Bezak, 114 Ohio St.3d 94, 

2007-Ohio-3250 and State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197. The 

record reflects that the trial court informed Appellant regarding post-release control at 

his sentencing hearing, but only noted in its judgment entry that he was advised 

pursuant to R.C. 2967.28. The trial court did not mention that post-release control 

was mandatory or that it was for three years. This notice is insufficient to satisfy the 

requirements of R.C. 2929.14(F). See State v. Jones, 7th Dist. No. 06 MA 17, 2009-

Ohio-794. Appellant’s assignments of error are correct. For the following reasons, 

we hereby modify and correct the sentence to properly apprise him of post-release 

control. This remedy is consistent with the holding in State v. Fischer, 128 Ohio 

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶30. The case is remanded for the sole 

purpose of allowing the trial court to issue a corrected sentencing entry. 

History of the Case

{2} On March 3, 2005, Appellant was indicted on five counts of drug 

trafficking. Each count was charged under R.C. 2925.03(A)(1). Counts one and 

three were fourth degree felonies, counts four and five were third degree felonies, 

and count two was a second degree felony. Appellant was convicted by jury and a 

sentencing hearing was held on December 12, 2005. Appellant acknowledges that 
-3-

he was properly informed about post-release control at that hearing. The court filed 

its sentencing judgment entry on December 14, 2005. The court sentenced 

Appellant to one year in prison on count one, five years on count two, one year on 

count three, two years on count four, and two years on count five, to be served 

consecutively, for an aggregate prison term of eleven years. The judgment entry 

noted that: “Defendant was also advised pursuant to R.C. 2967.28.” Appellant filed 

a timely appeal to this Court, and he was partially successful in challenging his 

sentence. Counts one and four were dismissed on appeal, and his sentence was 

reduced to eight years in prison. State v. Davis, 7th Dist. No. 05 MA 235, 2007-Ohio7216, appeal not allowed by 118 Ohio St.3d 1408, 2008-Ohio-2340, 886 N.E.2d 872. 

Counts two (a second degree felony), three (a fourth degree felony), and five (a third 

degree felony) were affirmed. He filed a motion to reopen his appeal, which was 

denied. State v. Davis, 7th Dist. No. 05 MA 235, 2008-Ohio-2927. 

{3} Appellant filed a motion for postconviction relief, which was overruled 

by the trial court, and the judgment was affirmed on appeal. State v. Davis, 7th Dist. 

No. 08 MA 16, 2008-Ohio-6211. 

{4} On August 23, 2010, Appellant filed a motion to correct a void 

sentence. The trial court held a hearing on the motion on September 9, 2010. The 

hearing transcript is not part of the record. The court overruled the motion on 

September 21, 2010. This appeal followed on October 10, 2010. 
-4-

ASSIGNMENTS OF ERROR NOS. 1 AND 2

{5} “The trial court committed reversible error when it failed to properly 

include post-release control into its judgement [sic] entry of sentence journalized on 

December 14, 2005; violating R.C. §2967.28 and Mr. Davis’ right to Due Process 

protected by both the Ohio and United States Constitutions. 

{6} “The trial court abused its discretion when it overruled Mr. Davis’ Motion 

to Correct a Void Sentence for lack of properly imposed post-release control.” 

{7} Both of Appellant’s assignments of error deal with the allegation that the 

court’s sentencing entry fails to properly give notice of post-release control, and thus, 

they will be treated together. Post-release control is a period of supervision by the 

Ohio Adult Parole Authority following release from prison. Appellant argues that, 

under R.C. 2929.19(B)(3), R.C. 2967.28(B) and (C), and 2929.14(F), a trial court 

must notify a defendant about post-release control at the sentencing hearing and 

must also include a notice in the sentencing judgment entry. Appellant is correct that, 

when a person is being sentenced for a felony crime, the trial court must give notice 

of post-release control at the sentencing hearing and in the final judgment entry. 

State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864. Failure to 

adequately notify a defendant about post-release control can result in a 

determination that the sentence, or part of the sentence, is void. Id. at ¶23. 

{8} Appellant contends that the phrase used in his sentencing judgment 

entry is not adequate notice of post-release control. The judgment entry states: 

“Defendant was also advised pursuant to R.C. 2967.28.” (12/14/05 J.E.) Appellant 
-5-

correctly points out a mere reference to the post-release control statute does not 

provide sufficient notice of post-release control. State v. Jones, 7th Dist. No. 06 MA 

17, 2009-Ohio-794; see also, State v. O’Connor, 7th Dist. No. 10 MA 81, 2010-Ohio6384; State v. Harrison, 7th Dist. No. 09MA187, 2010-Ohio-2746; State v. Hagans, 

7th Dist. Nos. 09-MA-2, 09-MA-3, 2009-Ohio-6526. Appellee, in rebuttal, cites to a 

case from the Sixth District, State v. Rossbach, 6th Dist. No. L-09-1300, 2011-Ohio281, to establish that a mere reference to R.C. 2967.28 is sufficient notice. The 

notice given in Rossbach, though, was more extensive than the notice given in the 

instant case or in Jones, and therefore, Rossbach is inapposite to the issue in this 

appeal. 

{9} Errors in notifying a defendant about post-release control have 

generated much litigation in Ohio. Jordan, supra, held that that a sentence that does 

not contain the proper notifications about post-release control must be vacated. Id. 

at paragraph two of the syllabus. In Bezak, supra, the Ohio Supreme Court held that, 

without the proper post-release control notifications, the sentencing entry is void in its 

entirety and that the defendant is entitled to a completely new sentencing hearing. 

Id. at syllabus. 

{10} Various problems arose in applying Bezak, particularly with regard to 

questions of res judicata in cases that had already been through the direct appeal 

process but were later found to have issues regarding notification of post-release 

control. It became unclear when, if ever, such cases became final, or how to deal 

with resentencing and subsequent appeal if the post-release control error was 
-6-

detected after the direct appeal had ended. These issues were largely resolved in 

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. Fischer

partially overruled Bezak and explained how appellate courts should treat sentencing 

entries that fail to properly explain post-release control. Fischer held that only that 

portion of the sentencing judgment entry dealing with post-release control is void, 

rather than the entire sentence. Id. at ¶26. Fischer has given rise to the concept of a 

“partially void” judgment. Fischer made it clear that, rather than conducting a de 

novo resentencing to correct a post-release control error, trial courts may only 

resentence to correct the erroneous or omitted provision for post-release control. Id. 

at ¶29. Fischer also gave the courts of appeals the new option of directly correcting 

a partially void sentence entry arising from a post-release control error. This remedy 

involves modifying the sentence without remanding the case to the trial court for a 

new resentencing hearing: 

{11} “[W]e hold that the new sentencing hearing to which an offender is 

entitled under Bezak is limited to proper imposition of postrelease control. In so 

holding, we come more into line with legislative provisions concerning appellate 

review of criminal sentences. R.C. 2953.08(G)(2)(b) permits an appellate court, upon 

finding that a sentence is clearly and convincingly contrary to law, to remand for 

resentencing. But a remand is just one arrow in the quiver. R.C. 2953.08(G)(2) also 

provides that an appellate court may ‘increase, reduce or otherwise modify a 

sentence * * * or may vacate the sentence and remand the matter to the sentencing 

court for resentencing.’ (Emphasis added.) Correcting a defect in a sentence without 
-7-

a remand is an option that has been used in Ohio and elsewhere for years in cases 

in which the original sentencing court, as here, had no sentencing discretion. 

{12} “Correcting the defect without remanding for resentencing can provide 

an equitable, economical, and efficient remedy for a void sentence. Here, we adopt 

that remedy in one narrow area: in cases in which a trial judge does not impose 

postrelease control in accordance with statutorily mandated terms.” (Citations 

omitted.) Id. at ¶29-30. 

{13} In this appeal, it appears that the trial court did not include enough 

information in the judgment entry to fulfill the statutory post-release control 

notification requirements. The judgment entry does not state that the defendant was 

subject to mandatory post-release control or for how long. Therefore, Appellant’s 

assignments of error are partially well-taken. Appellant desires the remedy of a new 

sentencing hearing, but that remedy is not appropriate in this case. Pursuant to 

Fischer, we hereby modify and correct Appellant’s post-release control to apprise him 

of post-release control, and we remand the case to the trial court with instructions to 

correct the sentencing entry to reflect this advisement. The following additional 

language, or language substantially similar, must be added to the sentencing 

judgment entry: 

{14} “The offender will be supervised under section 2967.28 of the Revised 

Code after the offender leaves prison, including a mandatory period of three (3) years 

of post-release control imposed by the parole board. If the offender violates that 

supervision or a condition of post-release control imposed under division (B) of 
-8-

section 2967.131 of the Revised Code, the parole board may impose a prison term, 

as part of the sentence, of up to one-half of the stated prison term originally imposed 

upon the offender”. 

Vukovich, J., concurs. 

DeGenaro, J., concurs.