[Cite as State v. Rodriguez-Baron, 2012-Ohio-1473.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

VS. 

ARMANDO C. RODRIGUEZ-BARON, 

 DEFENDANT-APPELLANT. 

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 CASE NO. 10-MA-176 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 05CR490B 

JUDGMENT: Reversed and Remanded 

APPEARANCES: 

For Plaintiff-Appellee Paul Gains 

Prosecutor 

Ralph M. Rivera 

Assistant Prosecutor 

21 W. Boardman St., 6th Floor 

Youngstown, Ohio 44503-1426 

For Defendant-Appellant Armando C. Rodriguez-Baron, Pro-se 

A530-175 

RiCI 

1001 Olivesburg Road 

P.O. Box 810 

Mansfield, Ohio 44901 

JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

 

 

 Dated: March 26, 2012 
[Cite as State v. Rodriguez-Baron, 2012-Ohio-1473.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Armando Rodriguez-Baron, appeals from a 

Mahoning County Common Pleas Court judgment overruling his motion to correct a 

void sentence. 

{¶2} Appellant was convicted of possession of marijuana, a second-degree 

felony, in 2007. The trial court sentenced appellant to eight years in prison. 

Appellant appealed his conviction raising manifest weight of the evidence and joinder 

issues. This court affirmed his conviction. See State v. Rodriguez-Baron, 7th Dist. 

No. 07-MA-86, 2008-Ohio-4816. 

{¶3} On August 27, 2010, appellant filed a pro se motion to correct void 

sentence and request for hearing. He alleged that the court did not properly inform 

him of postrelease control. Plaintiff-appellee, the State of Ohio, opposed the motion 

arguing that the postrelease control language set out in appellant’s sentencing entry 

was correct. The trial court overruled appellant’s motion without a hearing. 

{¶4} Appellant filed a timely notice of appeal on November 22, 2010. 

{¶5} Appellant, still acting pro se, now raises a single assignment of error, 

which states: 

{¶6} “THE TRIAL COURT ERRED WHEN THE COURT DETERMINED THE 

APPELLANT’S SENTENCE IS NOT VOID.” 

{¶7} Appellant argues that the trial court mistakenly sentenced him to parole 

instead of postrelease control. He contends that the parole board plays no part in 

postrelease control. Therefore, appellant claims, his sentence is void. He contends 

he is entitled to a de novo sentencing hearing. 

{¶8} At appellant’s sentencing hearing, the trial court pronounced appellant’s 

sentence and stated: 

{¶9} “Following your release from the penitentiary, you’ll be placed on 

parole. Should you violate any term or condition of your parole, back to the 

penitentiary you go for up to one half of your original sentence, a mandatory eight 

years. If you’ll [sic.] come out, you’ll be on parole for three years. If you mess up, 

you can go back for one half of that time of four years.” (Sentencing Tr. 6-7). 

{¶10} In the court’s judgment entry of sentence, however, it stated: 
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{¶11} “Upon completion of the prison term, the offender shall be subject to a 

period of Post-Release Control (PRC) up to three (3) years as determined by the 

Parole Board pursuant to R.C. 2967.28. 

{¶12} “If the defendant violated the terms of post-release control, the parole 

Board may return the offender to prison for a maximum period of nine months for 

each violation, but the total period of additional prison time imposed by the Parole 

Board for violations while under post-release control shall not exceed 50% of the 

defendant’s stated prison term. If the defendant is convicted of a felony committed 

while under post-release control, the court having jurisdiction over the new felony 

may return the defendant to prison for a minimum period of one year up to the time 

remaining on post-release control.” (Emphasis sic.) 

{¶13} “A court of record speaks only through its journal entries.” Gaskins v. 

Shiplevy, 76 Ohio St.3d 380, 382, 667 N.E.2d 1194 (1996). As such, the judgment 

entry, not the open court pronouncement of sentence, is the effective instrument for 

sentencing a defendant. State v. Hess, 7th Dist. No. 00-JE-40, 2001 WL 1568872, 

*1 (Dec. 6, 2001). 

{¶14} While the court may have misspoken at appellant’s sentencing hearing 

by saying that he was subject to a term of “parole,” it correctly stated in the 

sentencing entry that appellant was subject to postrelease control. The trial court’s 

sentencing entry correctly identifies that appellant is subject to postrelease control, as 

opposed to parole. 

{¶15} Furthermore, “(e)ach sentence to a prison term * * * for a felony of the 

second degree, * * * shall include a requirement that the offender be subject to a 

period of post-release control imposed by the parole board after the offender's 

release from imprisonment.* * * Unless reduced by the parole board * * *, a period of 

post-release control required by this division for an offender shall be [for the time set 

out herein].” (Emphasis added.) R.C. 2967.28(B). 

{¶16} Thus, contrary to appellant’s assertion, the parole board is the entity 

that monitors postrelease control. 
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{¶17} But another error is apparent in the court’s sentencing entry. The entry 

states that appellant is subject to a period of postrelease control of “up to” three 

years. Appellant was convicted of a second-degree felony. The proper term of 

postrelease control for a second-degree felony that is not a sex offense is three 

years. R.C. 2967.28(B)(2). The “up to” three years period of postrelease control is 

for offenders who committed third, fourth, and fifth-degree felonies. R.C. 2967.28(C). 

{¶18} The Ohio Supreme Court set out the remedies for improper notification 

of postrelease control in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 

paragraphs one and two of the syllabus. 

{¶19} “1. For criminal 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. 

{¶20} “2. 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.” 

{¶21} Appellant was sentenced in 2007. Therefore, R.C. 2929.191 applies 

here. 

{¶22} “R.C. 2929.191 establishes a procedure to remedy a sentence that fails 

to properly impose a term of postrelease control. It applies to offenders who have not 

yet been released from prison and who fall into at least one of three categories: those 

who did not receive notice at the sentencing hearing that they would be subject to 

postrelease control, those who did not receive notice that the parole board could 

impose a prison term for a violation of postrelease control, or those who did not have 

both of these statutorily mandated notices incorporated into their sentencing entries. 

R.C. 2929.191(A) and (B). For those offenders, R.C. 2929.191 provides that trial 

courts may, after conducting a hearing with notice to the offender, the prosecuting 

attorney, and the Department of Rehabilitation and Correction, correct an original 

judgment of conviction by placing on the journal of the court a nunc pro tunc entry 

that includes a statement that the offender will be supervised under R.C. 2967.28 

after the offender leaves prison and that the parole board may impose a prison term 
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of up to one-half of the stated prison term originally imposed if the offender violates 

postrelease control. 

{¶23} “R.C. 2929.191(C) prescribes the type of hearing that must occur to 

make such a correction to a judgment entry ‘[o]n and after the effective date of this 

section.’ The hearing contemplated by R.C. 2929.191(C) and the correction 

contemplated by R.C. 2929.191(A) and (B) pertain only to the flawed imposition of 

postrelease control. R.C. 2929.191 does not address the remainder of an offender's 

sentence. Thus, the General Assembly appears to have intended to leave 

undisturbed the sanctions imposed upon the offender that are unaffected by the 

court's failure to properly impose postrelease control at the original sentencing.” 

Singleton, at ¶¶23-24. 

{¶24} In conclusion, the trial court erred in imposing appellant’s period of 

postrelease control. Appellant’s remedy is a notification hearing where the court can 

correctly state that appellant is subject to a three-year period of postrelease control 

and enter a corresponding judgment entry. Appellant is not entitled to a de novo 

sentencing hearing as he contends. 

{¶25} Accordingly, appellant’s assignment of error has merit. 

{¶26} For the reasons stated above, the trial court’s judgment is hereby 

reversed with regard to the improper imposition of postrelease control. The matter is 

remanded so that the court can conduct a notification hearing pursuant to R.C. 

2929.19 and enter a proper nunc pro tunc judgment entry. 

Vukovich, J., concurs. 

Waite, P.J., concurs.