State v. Chancellor

2011 Ohio 4162

Opinion

[Cite as State v. Chancellor, 2011-Ohio-4162.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24358

v. : T.C. NO. 00CR227

JERRY CHANCELLOR : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 19th day of August , 2011.

CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

LYNNE M. FLEMING, Atty. Reg. No. 0078520, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402 Attorney for Defendant-Appellant

JERRY CHANCELLOR, #391545, Warren Correctional Institute, P. O. Box 120, Lebanon, Ohio 45036 Defendant-Appellant

FROELICH, J.

{¶ 1} On March 2, 2000, the defendant, represented by counsel, entered pleas of 2

guilty to two counts of aggravated robbery (one with a three-year firearm specification).

The judgment entry sentenced the defendant to eight years in prison on each of the two

counts, to be served concurrently with each other, and an additional three years of actual

incarceration on the firearm specification to be served consecutively to and prior to the

definite term of imprisonment. Further, the entry provided that “following the defendant’s

release from prison, the defendant will/may serve a period of post-release control under the

supervision of the parole board.” There was no appeal of this conviction and sentence.

{¶ 2} On October 6, 2010, the court, sua sponte, ordered that the appellant be

brought before the court for resentencing. On October 21, the court resentenced the

defendant, who was still in prison, to the same sentence of incarceration. However, in court

and in the termination entry, the court notified the defendant that, as part of the sentence, he

“will be supervised by the parole board for a period of five years post release control after

[his] . . . release of imprisonment.” The defendant filed a timely notice of appeal.

{¶ 3} Counsel for Chancellor has filed a brief pursuant to Anders v. California

(1967), 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493, stating that after a conscientious

examination of the record, the appeal is frivolous. Counsel has, however, filed a thorough

brief referring to an issue in the record that she believes might arguably support the appeal.

{¶ 4} Chancellor was advised of his counsel’s brief and that he could file a pro se

brief assigning any errors for review by this court and that, absent such a filing, the appeal

will be deemed submitted on the merits. No pro se brief has been received. We have

conducted an independent review of the record. Penson v. Ohio (1988), 488 U.S. 75, 109

S.Ct. 346, 102 L.Ed.2d 300. 3

{¶ 5} Chancellor’s appellate counsel has identified one possible Anders argument

for appeal:

{¶ 6} “The trial court may have erred in failing to resentence Mr. Chancellor de

novo.”

{¶ 7} The defendant was sentenced for two first degree felonies. Therefore, there

was a statutory requirement that his sentence include a mandatory period of five years

post-release control. The original judgment entry, inasmuch as it did not give a term of the

post-release control and did not indicate it would be mandatory, was defective.

{¶ 8} “[W]hen a judge fails to impose statutorily mandated postrelease control as

part of a defendant’s sentence, that part of the sentence that is void must be set aside.

Neither the Constitution nor common sense commands anything more.” State v. Fischer,

128 Ohio St.3d 92, 2010-Ohio-6238, ¶26. (emphasis in original) Therefore, since the

2000 judgment failed to impose statutorily mandated post-release control, that part of the

sentence was void. The 2010 judgment corrected that void part of the sentence and

imposed the statutorily mandated five years of post-release control.

{¶ 9} Appellant contends that since he was resentenced in October and Fischer did

not come out until December, that it does not control his situation. We do not agree for two

reasons.

{¶ 10} First, even if he were entitled to a de novo sentencing (which he was not), it

appears that this occurred. There was a discussion on the record among the judge, counsel,

and the defendant, and both the appellant and his counsel were asked if they had anything to

say. In response to the question, “Do you have any questions or concerns about what it is 4

we’re going to do with regard to the resentencing or its impact on you, sir?”, the defendant

responded in the negative.

{¶ 11} Second, pursuant to Fischer, the only part of his sentence that was void was

post-release control. And since Appellant was still in prison on the original sentence, there

is no problem with R.C. 2929.191. Therefore, the only resentencing was for post-release

control. See, e.g., State v. Jenkins, Montgomery App. No. 24117, 2011-Ohio-634, ¶7.

{¶ 12} The fact that Appellant was resentenced prior to the Fischer’s decision is

irrelevant. Fischer explained the effect of a previously imposed defective post-release

control sanction and how a court can correct the error. By definition, Fischer dealt with

sentences that were imposed prior to its pronouncement date.

{¶ 13} Having conducted an independent review of the record, in addition to the

brief filed by appellant’s counsel, we find this appeal to be wholly frivolous. There are no

meritorious issues for appeal. Therefore, the judgment of the trial court is affirmed.

GRADY, P.J. and DONOVAN, J., concur.

Copies mailed to:

Carley J. Ingram Lynne M. Fleming Jerry Chancellor Hon. Mary L. Wiseman