[Cite as State v. Bobbitt, 2019-Ohio-4005.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
State of Ohio Court of Appeals No. E-19-023
Appellee Trial Court No. 2011-CR-423
v.
Shedrick H. Bobbitt DECISION AND JUDGMENT
Appellant Decided: September 30, 2019
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and Anthony A. Battista III, Assistant Prosecuting Attorney, for appellee.
Shedrick H. Bobbitt, pro se.
SINGER, J.
{¶ 1} In this accelerated appeal, appellant, Shedrick Bobbitt, appeals the
March 18, 2019 judgment of the Erie County Court of Common Pleas denying his motion
to vacate his postrelease control. As appellant was not properly informed of his
mandatory postrelease control sanction, we reverse. Facts and Procedural Background
{¶ 2} On October 4, 2011, appellant was indicted on one count of felonious
assault, a felony of the second degree. On July 24, 2011, appellant entered a guilty plea
to the charge. The plea form states that appellant “shall have up to 2 years of Post
Release Control on each count.” Appellant was sentenced to a three-year prison term to
run consecutively with other unrelated cases. In the sentencing entry, the trial court
stated that appellant “shall be supervised after leaving prison for a period up to 3 years of
post release control.”
{¶ 3} Appellant brings forth one assignment of error:
The trial court erred by denying Mr. Bobbitt’s motion to terminate
his void postrelease control supervision.
Standard
{¶ 4} Our review of a felony sentence is governed by R.C. 2953.08(G)(2). State v.
Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11. R.C. 2953.08(G)(2)
provides that an appellate court is permitted to “increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand the
matter to the sentencing court for resentencing * * * if it clearly and convincingly finds”
that either the record does not support the sentencing court’s findings under the
applicable sentencing statutes or that the sentence is otherwise “contrary to law.”
{¶ 5} “Each sentence to a prison term, other than a term of life imprisonment * * *
shall include a requirement that the offender be subject to a period of post-release control
2. imposed by the parole board after the offender’s release from such imprisonment.” R.C.
2967.28(B). “[A] period of post-release control required by this division for an offender
shall be one of the following periods: * * * For a felony of the second degree that is not a
felony sex offense, three years.” R.C. 2967.27(B)(2).
{¶ 6} “It is settled that ‘a trial court has a statutory duty to provide notice of
postrelease control at the sentencing hearing’ and that ‘any sentence imposed without
such notification is contrary to law.’” State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-
2927, 85 N.E.3d 700, ¶ 8, quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085,
817 N.E.2d 864, ¶ 23. The trial court is required to incorporate these notices into its
journal entry. Id.
{¶ 7} “[I]n order to validly impose postrelease control, the trial court must
incorporate into its sentencing entry the notifications it provides to the offender relating
to postrelease control at the sentencing hearing but that it need not repeat those
notifications verbatim in the entry.” Grimes at ¶ 13. A compliant sentencing entry must
provide the parole board the information it needs to execute the postrelease control
portion of the sentence. Id.
{¶ 8} A technical deficiency in the sentencing entry does not render the entry void
where the record as a whole reveals the trial court satisfied all of the statutory
requirements for imposing postrelease control. State v. Boone, 10th Dist. Franklin No.
2012-Ohio-3653, 975 N.E.2d 546, ¶ 29, citing State v. Williams, 10th Dist. Franklin No.
10AP-922, 2011-Ohio-6231, ¶ 21.
3. {¶ 9} “Even though the phrase ‘up to’ has ‘discretionary’ connotations, mistaken
use of such language does not render defendant’s post-release control notification void.”
(Citations omitted). Id. at ¶ 30. “[W]hen a term of post-release control is mandatory, the
use of ‘up to’ language does not necessarily invalidate the imposition of post-release
control. Although a sentencing court must comply with statutory requirements, the
Supreme Court has not prescribed a ‘magic’ words test for imposing post-release control
* * *.” Williams at ¶ 19.
{¶ 10} The Williams court found that a reviewing court must look to the record as
a whole to determine if the notifications were properly given to a defendant. Id. The
Tenth District found that a plea form that notifies the defendant properly of postrelease
control and the consequences for violating postrelease control “along with any other
written or oral notification of post-release control provided, can be sufficient to satisfy
the statutory requirements regarding notification at the sentencing hearing or post-release
control and the consequences for violating that supervision.” Id. at ¶ 17.
{¶ 11} “A trial court does not have the authority to resentence a defendant for the
purpose of adding a term of postrelease control as a sanction for a particular offense after
the defendant has already served the prison term for that offense.” State v. Holcroft, 137
Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 18. “[W]hen 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.” (Emphasis sic.) State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of syllabus.
4. Analysis
{¶ 12} Appellant argues that the “up to” language was insufficient to inform
appellant that he had a mandatory postrelease control term of three years. Appellee
argues that appellant was on notice that he would be required to serve postrelease control
because the court ordered that he “shall” be subject to postrelease control.
{¶ 13} Here, appellant was clearly required, per R.C. 2967.28(B)(2), to serve a
mandatory term of three years on postrelease control.
{¶ 14} The plea form that appellant signed states that appellant must serve a term
of two years on postrelease control. This form is incorrect as appellant was subject to a
term of three years of postrelease control. Appellee states this was a spelling error,
handwritten number on the plea form is clearly a two.
{¶ 15} The sentencing entry states he must serve a mandatory term of postrelease
control of “up to” three years. The language of “up to” is insufficient to inform appellant
of his mandatory term of postrelease control. See State v. Young, 11th Dist. Trumbull
No. 2011-Ohio-4018, ¶ 92 (“Although the trial court used the term ‘mandatory’ in its
sentencing entry, it again used the ‘up to’ three years language regarding postrelease
control. The language used at both the sentencing hearing and in the trial court’s
judgment entry does not adequately indicate that a three-year term of postrelease control
was mandatory.”); State v. Bolden, 5th Dist. Fairfield No. 17-CA-51, 2018-Ohio-2684,
¶ 9 (use of “up to” does not connote a mandatory sentence of postrelease control); State v.
Davis, 7th Dist. Belmont No. 15 BE 0034, 2016-Ohio-7319, ¶ 10 (“up to” three years of
5.
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[Cite as State v. Bobbitt, 2019-Ohio-4005.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
State of Ohio Court of Appeals No. E-19-023
Appellee Trial Court No. 2011-CR-423
v.
Shedrick H. Bobbitt DECISION AND JUDGMENT
Appellant Decided: September 30, 2019
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and Anthony A. Battista III, Assistant Prosecuting Attorney, for appellee.
Shedrick H. Bobbitt, pro se.
SINGER, J.
{¶ 1} In this accelerated appeal, appellant, Shedrick Bobbitt, appeals the
March 18, 2019 judgment of the Erie County Court of Common Pleas denying his motion
to vacate his postrelease control. As appellant was not properly informed of his
mandatory postrelease control sanction, we reverse. Facts and Procedural Background
{¶ 2} On October 4, 2011, appellant was indicted on one count of felonious
assault, a felony of the second degree. On July 24, 2011, appellant entered a guilty plea
to the charge. The plea form states that appellant “shall have up to 2 years of Post
Release Control on each count.” Appellant was sentenced to a three-year prison term to
run consecutively with other unrelated cases. In the sentencing entry, the trial court
stated that appellant “shall be supervised after leaving prison for a period up to 3 years of
post release control.”
{¶ 3} Appellant brings forth one assignment of error:
The trial court erred by denying Mr. Bobbitt’s motion to terminate
his void postrelease control supervision.
Standard
{¶ 4} Our review of a felony sentence is governed by R.C. 2953.08(G)(2). State v.
Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11. R.C. 2953.08(G)(2)
provides that an appellate court is permitted to “increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand the
matter to the sentencing court for resentencing * * * if it clearly and convincingly finds”
that either the record does not support the sentencing court’s findings under the
applicable sentencing statutes or that the sentence is otherwise “contrary to law.”
{¶ 5} “Each sentence to a prison term, other than a term of life imprisonment * * *
shall include a requirement that the offender be subject to a period of post-release control
2. imposed by the parole board after the offender’s release from such imprisonment.” R.C.
2967.28(B). “[A] period of post-release control required by this division for an offender
shall be one of the following periods: * * * For a felony of the second degree that is not a
felony sex offense, three years.” R.C. 2967.27(B)(2).
{¶ 6} “It is settled that ‘a trial court has a statutory duty to provide notice of
postrelease control at the sentencing hearing’ and that ‘any sentence imposed without
such notification is contrary to law.’” State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-
2927, 85 N.E.3d 700, ¶ 8, quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085,
817 N.E.2d 864, ¶ 23. The trial court is required to incorporate these notices into its
journal entry. Id.
{¶ 7} “[I]n order to validly impose postrelease control, the trial court must
incorporate into its sentencing entry the notifications it provides to the offender relating
to postrelease control at the sentencing hearing but that it need not repeat those
notifications verbatim in the entry.” Grimes at ¶ 13. A compliant sentencing entry must
provide the parole board the information it needs to execute the postrelease control
portion of the sentence. Id.
{¶ 8} A technical deficiency in the sentencing entry does not render the entry void
where the record as a whole reveals the trial court satisfied all of the statutory
requirements for imposing postrelease control. State v. Boone, 10th Dist. Franklin No.
2012-Ohio-3653, 975 N.E.2d 546, ¶ 29, citing State v. Williams, 10th Dist. Franklin No.
10AP-922, 2011-Ohio-6231, ¶ 21.
3. {¶ 9} “Even though the phrase ‘up to’ has ‘discretionary’ connotations, mistaken
use of such language does not render defendant’s post-release control notification void.”
(Citations omitted). Id. at ¶ 30. “[W]hen a term of post-release control is mandatory, the
use of ‘up to’ language does not necessarily invalidate the imposition of post-release
control. Although a sentencing court must comply with statutory requirements, the
Supreme Court has not prescribed a ‘magic’ words test for imposing post-release control
* * *.” Williams at ¶ 19.
{¶ 10} The Williams court found that a reviewing court must look to the record as
a whole to determine if the notifications were properly given to a defendant. Id. The
Tenth District found that a plea form that notifies the defendant properly of postrelease
control and the consequences for violating postrelease control “along with any other
written or oral notification of post-release control provided, can be sufficient to satisfy
the statutory requirements regarding notification at the sentencing hearing or post-release
control and the consequences for violating that supervision.” Id. at ¶ 17.
{¶ 11} “A trial court does not have the authority to resentence a defendant for the
purpose of adding a term of postrelease control as a sanction for a particular offense after
the defendant has already served the prison term for that offense.” State v. Holcroft, 137
Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 18. “[W]hen 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.” (Emphasis sic.) State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of syllabus.
4. Analysis
{¶ 12} Appellant argues that the “up to” language was insufficient to inform
appellant that he had a mandatory postrelease control term of three years. Appellee
argues that appellant was on notice that he would be required to serve postrelease control
because the court ordered that he “shall” be subject to postrelease control.
{¶ 13} Here, appellant was clearly required, per R.C. 2967.28(B)(2), to serve a
mandatory term of three years on postrelease control.
{¶ 14} The plea form that appellant signed states that appellant must serve a term
of two years on postrelease control. This form is incorrect as appellant was subject to a
term of three years of postrelease control. Appellee states this was a spelling error,
handwritten number on the plea form is clearly a two.
{¶ 15} The sentencing entry states he must serve a mandatory term of postrelease
control of “up to” three years. The language of “up to” is insufficient to inform appellant
of his mandatory term of postrelease control. See State v. Young, 11th Dist. Trumbull
No. 2011-Ohio-4018, ¶ 92 (“Although the trial court used the term ‘mandatory’ in its
sentencing entry, it again used the ‘up to’ three years language regarding postrelease
control. The language used at both the sentencing hearing and in the trial court’s
judgment entry does not adequately indicate that a three-year term of postrelease control
was mandatory.”); State v. Bolden, 5th Dist. Fairfield No. 17-CA-51, 2018-Ohio-2684,
¶ 9 (use of “up to” does not connote a mandatory sentence of postrelease control); State v.
Davis, 7th Dist. Belmont No. 15 BE 0034, 2016-Ohio-7319, ¶ 10 (“up to” three years of
5. postrelease control was improper sentence because proper term is a mandatory term of
three years for a felony of the second degree). Therefore, we find that the sentencing
entry also failed to notify appellant of his mandatory term of postrelease control for a
period of three years.
{¶ 16} Therefore, the trial court did not properly notify appellant of his
requirements for postrelease control at the time of sentencing. The portion of his
sentence relating to postrelease control is therefore void. The matter is remanded for a
new resentencing hearing limited to the imposition of postrelease control on those
charges under R.C. 2929.191(C).
{¶ 17} Based on the record before us, it is unclear whether appellant has
completed his sentence for his conviction. If appellant has completed his prison sentence
for this conviction, nothing in this decision precludes appellant from asserting that the
trial court no longer has the authority to impose postrelease control under Holcroft, 137
Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382.
Conclusion
{¶ 18} On consideration whereof, the judgment of the Erie County Court of
Common Pleas is reversed in regards to the imposition of postrelease control. It is
ordered that appellee pay the court costs of this appeal pursuant to App.R. 24.
Judgment reversed.
6. State v. Bobbitt C.A. No. E-19-023
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Christine E. Mayle, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
7.