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State v. Easterly

Court of Appeals of Ohio, Seventh District

June 19, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
TAWHON EASTERLY, DEFENDANT-APPELLANT.

Criminal Appeal from Common Pleas Court, Case No. 98CR996.

For Plaintiff-Appellee: Attorney Paul Gains Prosecuting Attorney Attorney Ralph Rivera Assistant Prosecuting Attorney.

For Defendant-Appellant: Tawhon Easterly, Pro se.

JUDGES: Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Mary DeGenaro.

OPINION

VUKOVICH, J.

{¶1} Defendant-appellant Tawhon Easterly appeals the decision of the Mahoning County Common Pleas Court on his motion wherein he alleged a void sentence and sought plea withdrawal. In ruling on the motion, the trial court discharged appellant from post-release control because the sentencing court failed to properly impose it and because appellant had finished serving his sentence. Appellant argues that the trial court should have vacated his plea as well, urging that his motion was a presentence plea withdrawal motion.

{¶2} However, the improper imposition of post-release control only voids the portion of the sentence dealing with post-release control. Because of this and because he cannot be resentenced due to his release, appellant's motion is considered a post-sentence plea withdrawal motion. In any event, no matter how the motion is categorized, the mere fact that the post-release control portion of the sentence is void does not void the entire sentence requiring a court to grant a withdrawal of a plea. For the following reasons, appellant's arguments are without merit, and the judgment of the trial court is affirmed.

STATEMENT OF THE CASE

{¶3} In 1998, appellant was arrested for shooting at four people from a car. This resulted in his indictment for murder in the death of Clinton Longmire. See R.C. 2903.02(A), (D) (felony-life). He was also indicted on three counts of attempted murder against the three other victims. See R.C. 2923.02(A), (E); R.C. 2903.02(A), (D) (first degree felonies). Each count contained a firearm specification for committing the offense by discharging a firearm from a motor vehicle. See R.C. 2941.146(A).

{¶4} In March 2002, appellant negotiated a plea agreement wherein all four charges were amended to lesser offenses. Appellant pled guilty to involuntary manslaughter (a first degree felony), three counts of felonious assault (second degree felonies), and the firearm specifications. The court accepted the plea and sentenced him as jointly recommended to six years on each to run concurrently plus three years for the firearm specifications for a total of nine years.

{¶5} Regarding post-release control, the written plea that appellant signed explained that five years of post-release control was mandatory for a first degree felony and three years of post-release control was mandatory for a second degree felony that involved causing or threatening physical harm. It also stated that if he violated the conditions, he could be returned to prison for up to nine months for each violation for a total of 50% of his original term and, if that violation is a felony, he could receive a new prison term of the greater of one year or the time remaining on post-release control. Before accepting the plea, the court reiterated these items at the hearing. (Tr. 7).

{¶6} In thereafter proceeding immediately to sentencing, the court did not restate this post-release control information. The only reference to post-release control in the court's oral imposition of sentence was to state, "the Defendant has been given his notice under R.C. 2929.19(B)(3) * * *." (Tr. 16-17). Likewise, the court's March 29, 2002 sentencing entry made no mention of post-release control except to say, "Defendant has been given notice under R.C. 2929.19(B)(3) * * *." No appeal was taken.

{¶7} In 2006, appellant was granted judicial release with five years of community control. He thereafter violated his community control. In a February 26, 2008 revocation entry, the court reimposed the original sentence of nine years followed by "up to five (5) years to be monitored by the Adult Parole Authority." The entry also stated, "Defendant has been given notice under R.C. 2929.19(B)(3) * * *."

{¶8} On December 6, 2011, after appellant finished serving his nine years, his attorney filed a motion to vacate his guilty plea. The motion stated that the sentence was void due to the lack of proper imposition of post-release control and, since appellant had served his sentence, he could not be subject to resentencing to correct the flawed imposition. From this, it was urged that the motion should be considered a presentence plea withdrawal motion. It was then noted that a presentence motion ...


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