State v. Robb

2011 Ohio 4647

• Court: Ohio Court of Appeals
• Decided: September 16, 2011
• Docket: C-100678 C-100679
• Status: Published

Opinion

[Cite as State v. Robb, 2011-Ohio-4647.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-100678 C-100679 Plaintiff-Appellee, : TRIAL NOS. B-0210655B B-0301572B vs. : D E C I S I O N. DANTE LOVELL ROBB, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 16, 2011

Joseph T. Deters, Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Scott A. Rubenstein, for Defendant-Appellant.

Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

SYLVIA S. HENDON, Judge.

{¶1} Defendant-appellant Dante Lovell Robb entered pleas of guilty to

conspiracy to commit murder and aggravated robbery with an accompanying

weapon specification in 2003. At that time, the trial court sentenced Robb to an

aggregate term of 15 years’ imprisonment. In September of 2010, Robb was returned

to the trial court for a resentencing hearing because the trial court had failed to orally

notify Robb about his postrelease control requirements. The trial court had included

language concerning postrelease control in its 2003 sentencing entry, but it had not

orally informed Robb about postrelease control at the sentencing hearing.

{¶2} Over the state’s objection, the trial court conducted a de novo

sentencing hearing. The trial court imposed the same sentence that it had imposed

in 2003, along with the required postrelease control notifications. Robb had

additionally filed a motion to withdraw his guilty pleas, which the trial court denied.

{¶3} Robb now appeals, raising two assignments of error for our review. In

his first assignment of error, he argues that the trial court erred in overruling his

motion to withdraw his guilty pleas. Robb asserts that his motion to withdraw his

pleas should be treated as a presentence motion to withdraw because it was filed

before he was properly resentenced. He is incorrect.

{¶4} This court has held that, when a sentence is void only to the extent that

postrelease control had not been properly imposed, any motion to withdraw a guilty

plea filed after the imposition of the original sentence should be treated as a

postsentence motion to withdraw a guilty plea.1 A postsentence motion to withdraw

1 State v. Thomas, 1st Dist. Nos. C-100411 and C-100412, 2011-Ohio-1331, ¶16.

2 OHIO FIRST DISTRICT COURT OF APPEALS

a guilty plea should only be granted to correct a manifest injustice.2 We review a trial

court’s ruling on a postsentence motion to withdraw a guilty plea for an abuse of

discretion.3 Here, Robb has failed to demonstrate the presence of a manifest

injustice. The trial court did not abuse its discretion in denying Robb’s motion, and

the first assignment of error is overruled.

{¶5} In his second assignment of error, Robb argues that the trial court

erred in imposing a sentence not supported by the findings in the record. Robb had

been returned to the trial court for resentencing because the trial court had failed to

orally notify him about the requirements of postrelease control. When a trial court

fails to orally notify a defendant about the requirements of postrelease control, “that

part of the sentence * * * is void and must be set aside.”4 Consequently, in such a

situation, the resentencing “is limited to the proper imposition of postrelease

control.”5

{¶6} Here, the trial court erred in conducting a de novo sentencing hearing.

The resentencing should have been limited to the proper imposition of postrelease

control. But because the trial court imposed the same sentence that it had imposed

at the original sentencing hearing, along with the necessary postrelease-control

language, any error is harmless.

{¶7} An appeal following a resentencing hearing to properly impose

postrelease control “is limited to issues arising at the resentencing hearing.”6

Because Robb’s resentencing should have been limited to the imposition of

2 Crim.R. 32.1 3 State v. Hines, 1st Dist. No. C-090754, 2010-Ohio-3964, ¶17. 4 State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶26. See, also, State v. Brown, 1st Dist. Nos. C-100309 and C-100310, 2011-Ohio-1029, ¶9. 5 Fischer at ¶27. 6 Fischer at paragraph four of the syllabus.

3 OHIO FIRST DISTRICT COURT OF APPEALS

postrelease control, in the absence of any other matter that would have voided a

separate portion of the sentence, he may only challenge on appeal issues arising from

that imposition. Here, we find that the trial court properly informed Robb regarding

the requirements of postrelease control, and we overrule the second assignment of

error.

{¶8} The judgment of the trial court is, accordingly, affirmed.

Judgment affirmed.

SUNDERMANN, P.J., and CUNNINGHAM, J, concur.

Please Note: The court has recorded its own entry on the date of the release of this decision.