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State of Ohio v. Rickie D. Powell

September 30, 2011

STATE OF OHIO APPELLEE
v.
RICKIE D. POWELL APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 99CR054270

The opinion of the court was delivered by: Carr, Presiding Judge.

Cite as State v. Powell,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Appellant, Rickie Powell, appeals the judgment of the Lorain County Court of Common Pleas. This Court affirms, in part, and vacates, in part.

I.

{¶2} On September 22, 1999, the Lorain County Grand Jury indicted Powell on one count of felonious assault in violation of R.C. 2903.11(A), a felony of the second degree; one count of aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the first degree; one count of improperly discharging a firearm at or into an occupied structure in violation of 2923.161(A), a felony of the second degree; one count of intimidation in violation of R.C. 2921.03(A), a felony of the third degree; one count of having weapons under disability in violation of R.C. 2923.13(A)(2), a felony of the fourth degree; and one count of improperly handling firearms in violation of R.C. 2923.16(B), a misdemeanor of the first degree. Several of the counts in the indictment contained firearm specifications. On November 18, 1999, the matter proceeded to trial. On November 19, 1999, a jury found Powell guilty of all counts and specifications in the indictment. On November 22, 1999, the trial court sentenced Powell to an aggregate prison term of twenty-one years. The trial court's sentencing entry was journalized on November 30, 1999. In its sentencing entry, the trial court notified Powell that he would be subject to post-release control but did not indicate that the term was mandatory.

{¶3} On September 19, 2000, Powell filed a notice of delayed appeal. Subsequently, on October 5, 2000, this Court denied Powell's motion on the basis that Powell had failed to set forth sufficient reasons for having failed to perfect a timely appeal.

{¶4} More than ten years after he was convicted, on March 31, 2010, Powell filed a pro se motion to vacate his sentence on the basis that the trial court had not properly notified him of post-release control. On May 18, 2010, the trial court issued an order granting the motion in part, and denying the motion, in part. The trial court set the matter for resentencing because Powell had not been properly notified of post-release control in the original sentencing entry. Powell appeared with counsel for resentencing on November 22, 2010. Powell was sentenced to the same aggregate prison term and notified that he would be subject to a mandatory post-release control term of five years. The trial court's sentencing entry was dated December 2, 2010.

{¶5} Powel filed a notice of appeal on January 4, 2011. On appeal, Powell raises three assignments of error.

II.

ASSIGNMENT OF ERROR I

"THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ALLOWED THE STATE TO PRESENT ITS THEORY OF THE CASE ...


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