State v. Bruce

2012 Ohio 3494

Opinion

[Cite as State v. Bruce, 2012-Ohio-3494.]

IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2012 CA 6

v. : T.C. NO. 08CR729, 08CR843

JAYE BRUCE : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 3rd day of August , 2012.

ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecuting Attorney, 55 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

SAMUEL J. WARDEN, Atty. Reg. No. 0087918, 7588 Central Parke Blvd., Suite 131, Mason, Ohio 45040 Attorney for Defendant-Appellant

JAYE BRUCE, #595857, London Correctional Institute, P. O. Box 69, London, Ohio 43140 Defendant-Appellant ..........

DONOVAN, J. 2

{¶ 1} This matter is before the Court on the Notice of Appeal of Jaye Bruce,

filed

January 17, 2012. Counsel for Bruce filed his appeal pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting an inability to find any

meritorious claim to present for review. This Court granted Bruce 60 days in which to file a

pro se brief assigning any errors for review, and Bruce did not file a brief. The State did not

file a response to the Anders brief.

{¶ 2} On December 1, 2008, Bruce pled guilty to one count of escape, in

violation of R.C. 2921.34, a felony of the second degree, and one count of failure to

periodically verify current address, in violation of R.C. 2950.06(F), also a felony of the

second degree. Bruce received a four year agreed sentence on each count, to be served

concurrently. On December 15, 2011, the trial court resentenced Bruce, pursuant to State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, providing correct notice,

prior to his release from prison, of the terms of postrelease control as part of his sentence.

This appeal arises from his resentencing.

{¶ 3} This Court previously noted, in State v. Marbury, 2d Dist. No. 19226,

2003-Ohio-3242, ¶ 7-8:

We are charged by Anders to determine whether any issues involving

potentially reversible error that are raised by appellate counsel or by a

defendant in his pro se brief are “wholly frivolous.” * * * If we find that any

issue presented or which an independent analysis reveals is not wholly

frivolous, we must appoint different appellate counsel to represent the 3

defendant. * * *

Anders equates a frivolous appeal with one that presents issues

lacking in arguable merit. An issue does not lack arguable merit merely

because the prosecution can be expected to present a strong argument in

reply, or because it is uncertain whether a defendant will ultimately prevail on

that issue on appeal. An issue lacks arguable merit if, on the facts and law

involved, no responsible contention can be made that it offers a basis for

reversal. * * *

{¶ 4} In his initial sentencing hearing, the transcript reflects that while the court

advised Bruce that he was subject to a mandatory three year period of postrelease control,

the court did not advise him that the mandatory three years applied to both of his

convictions. In Fischer, the Supreme Court of Ohio held that “when 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.” Id., ¶ 26. The Court concluded as follows:

* * * [V]oid sentences are not precluded from appellate review by

principles of res judicata and may be reviewed at any time, on direct appeal or

by collateral attack. We further hold that although the doctrine of res

judicata does not preclude appellate review of a void sentence, res judicata

still applies to other aspects of the merits of a conviction, including the

determination of guilt and the lawful elements of the ensuing sentence. The

scope of an appeal from a resentencing hearing in which a mandatory term of

postrelease control is imposed is limited to issues arising at the resentencing 4

hearing. Id., ¶ 40.

{¶ 5} A thorough review of the transcript of Bruce’s resentencing hearing

reveals that, after providing the parties with an opportunity to be heard, the court notified

Bruce that post release control is mandatory for three years on both the conviction of escape

and the conviction of failure to periodically verify current address. Furthermore, Bruce

was advised of the consequences for violating the conditions of post release control imposed

pursuant to R.C. 2967.28.

{¶ 6} No issues involving potentially reversible error were raised by appellate

counsel or by Bruce, and having thoroughly completed our independent analysis pursuant

to Anders, we are unable to find any meritorious issues for further review, and we

accordingly decline to appoint different appellate counsel to represent Bruce. The judgment

of the trial court is affirmed.

GRADY, P.J. and FAIN, J., concur.

Copies mailed to:

Elizabeth A. Ellis Samuel J. Warden Jaye Bruce Hon. Stephen A. Wolaver