State v. Woodson

2011 Ohio 1324

• Court: Ohio Court of Appeals
• Decided: March 21, 2011
• Docket: 2010 CA 00101
• Status: Published

Opinion

[Cite as State v. Woodson, 2011-Ohio-1324.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 2010 CA 00101 ROZELL WOODSON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2007 CR 00070(B)

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 21, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO BARRY T. WAKSER PROSECUTING ATTORNEY 200 West Tuscarawas Street RENEE M. WATSON Suite 200 ASSISTANT PROSECUTOR Canton, Ohio 44702 100 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2010 CA 00101 2

Wise, J.

{¶1} Appellant Rozell Woodson appeals from the decision of the Court of

Common Pleas, Stark County, which addressed his post-conviction motion to vacate or

set aside his sentence based on improper PRC notification. The relevant facts leading

to this appeal are as follows.

{¶2} In January 2007, the Stark County Grand Jury indicted appellant and a co-

defendant on one count of trafficking in cocaine, one count of possession of cocaine,

and one count of having weapons under disability.

{¶3} Before trial, appellant and the co-defendant filed motions to suppress.

After an evidentiary hearing, the motions to suppress were overruled.

{¶4} The co-defendant thereafter pled guilty. Appellant's case proceeded to a

jury trial, resulting in a finding of guilty as charged. He was sentenced to ten years on

each drug offense, to be served concurrently, and five years for having weapons under

disability, to be served consecutive to the drug charges. Additionally, the court imposed

the balance of appellant's post-release control time, two years and 144 days, to be

served consecutive to the drug and weapons sentences. The sentencing entry stated

that the trial court had advised appellant that post-release control was mandatory “up to

a maximum of five (5) years.”

{¶5} Appellant filed a direct appeal, challenging the denial of his motion to

suppress as his sole assigned error. On February 19, 2008, we affirmed the trial court’s

decision. See State v. Woodson, Stark App.No. 2007CA00051, 2008-Ohio-670.

Appellant’s attempts to further appeal his conviction were denied. Stark County, Case No. 2010 CA 00101 3

{¶6} On January 4, 2010, appellant filed a motion to vacate or set aside his

sentence based on an allegation of improper PRC notification. The trial court conducted

a hearing on the motion on March 31, 2010. Appellant, via counsel, requested a full de

novo resentencing hearing and objected to a limited PRC hearing. The trial court

proceeded to advise appellant of his correct PRC obligations and essentially indicated it

would take appellant’s request for a de novo hearing under advisement.

{¶7} On April 1, 2010, the trial court issued a judgment entry denying

appellant’s aforesaid request. On April 5, 2010, the trial court issued a judgment entry

nunc pro tunc which corrected the PRC language in the 2007 sentencing entry.

{¶8} Appellant filed a notice of appeal on May 3, 2010. He herein raises the

following sole Assignment of Error:

{¶9} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT A DE

NOVO SENTENCING HEARING.”

{¶10} In his sole Assignment of Error, appellant maintains the trial court erred in

declining to conduct a de novo sentencing hearing when correcting his PRC notification.

We disagree.

{¶11} R.C. 2929.191 sets forth the mechanism for correcting a sentence that

fails to properly impose post-release control. Said provision applies prospectively to

sentences entered on or after July 11, 2006. State v. Pearson, Montgomery App.No.

23974, 2011-Ohio-245, f.n. 3, citing State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-

6434, ¶¶ 35-36. See, also, State v. Nesser, Licking App.No. 10CA61, 2011-Ohio-94, f.n.

1; State v. Samples, Stark App.No. 2010CA00122, 2011-Ohio-179, ¶ 27. Stark County, Case No. 2010 CA 00101 4

{¶12} In the case sub judice, although appellant was clearly sentenced after July

11, 2006, he essentially contends that the Ohio Supreme Court’s plurality Singleton

decision is dicta in this instance, as Singleton did not involve a post-7/11/06 sentence.

He adds his assessment that the only parts of Singleton to have the support of at least

four Justices are the two paragraphs of the syllabus and the portion of the lead opinion

that holds R.C. 2929.191 does not apply retroactively.

{¶13} However, as aptly recognized by the Second District Court of Appeals, the

Ohio Supreme Court has already extended the purported “dicta” of Singleton regarding

the procedures of R.C. 2929.191 to cases where the defendant had been sentenced on

or after July 11, 2006. See State v. Marriott, 189 Ohio App.3d 98, 937 N.E.2d 614,

2010-Ohio-3115, ¶ 56, citing State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010-

Ohio-1017, ¶ 214 and State v. Fuller, 124 Ohio St.3d 543, 925 N.E.2d 123, 2010-Ohio-

726.

{¶14} Accordingly, we hold appellant’s PRC was properly corrected pursuant to

statute, and his sole Assignment of Error is therefore overruled.

{¶15} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is affirmed.

By: Wise, J. Gwin, P. J., and Hoffman, J., concur.

___________________________________

JUDGES JWW/d 0308 Stark County, Case No. 2010 CA 00101 5

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : ROZELL WOODSON : : Defendant-Appellant : Case No. 2010 CA 00101

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

Costs assessed to appellant.

JUDGES