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State v. Cockrell

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 13, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
DAVONTE COCKRELL, DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-10-541417-B and CR-15-600493-B.

          ATTORNEY FOR APPELLANT Carmen P. Naso Milton A. Kramer Law Clinic

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Carl Mazzone Assistant Prosecuting Attorney

          BEFORE: Keough, A.J., Kilbane, J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

         {¶1} Defendant-appellant, Davonte Cockrell, appeals the sentence imposed under two separate cases, but ordered to run consecutively. For the reasons that follow, we reverse and remand.

         {¶2} In October 2010, Cockrell pled guilty in Cuyahoga C.P. No. CR-10-541417 to aggravated robbery and burglary and was sentenced to four years in prison. At sentencing, the court advised him that he was subject to five years of mandatory postrelease control on the first-degree felony aggravated robbery offense, and three-year-discretionary postrelease control supervision for the burglary offense. The sentencing journal entry, however, provided that postrelease control was part of Cockrell's sentence for only a mandatory three years. No appeal was taken from this entry of conviction. In August 2014, Cockrell was released from prison after serving his four-year prison sentence; he was subsequently placed on postrelease control.

         {¶3} In November 2015, Cockrell was named in a three-count indictment under Cuyahoga C.P. No. CR-16-104207 charging him with weapon offenses. In December, he pled guilty to having a weapon while under disability. During the plea, Cockrell admitted that he was on postrelease control related to the 2010 convictions under Case No. CR-10-541417. At sentencing, the trial court ordered Cockrell to serve 30 months in prison for the weapons offense. Additionally, the court sentenced Cockrell to prison for the remaining postrelease control term to run consecutively to the weapons offense.

         {¶4} Cockrell now appeals, raising two assignments of error.

         {¶5} In his first assignment of error, Cockrell contends that the sentence imposed in Case No. CR-10-541417 failed to properly include the statutorily mandated term of postrelease control and is therefore void and not enforceable in the new felony case of Case No. CR-16-600493. We agree.

         {¶6} A sentence that does not include the statutorily mandated term of postrelease control is void, not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus.

         {¶7} The record reflects that Cockrell was orally advised at the time of his plea and sentencing in 2010 that he would be subject to a mandatory postrelease control period of five years control following his four-year prison sentence. However, the sentencing journal entry stated that Cockrell was subject to a mandatory three-year period of postrelease control.

         {¶8} The state contends that despite this error in the original sentencing entry, pursuant to R.C. 2967.28(B), Cockrell is still subject to the mandatory five-year period of postrelease control pursuant to R.C. 2967.28(B) because the imposition of postrelease control arises by operation of law and Cockrell was properly notified of the consequences for violating postrelease control. The language the state relies on is found in R.C. 2967.28(B), which provides:

If a court imposes a sentence including a prison term of a type described in this division on or after July 11, 2006, the failure of a sentencing court to notify the offender pursuant to division (B)(2)(c) of section 2929.19 of the Revised Code of this requirement or to include in the judgment of conviction entered on the journal a statement that the offender's sentence includes this requirement does not negate, limit, or otherwise affect the mandatory period of supervision that is required for the offender under this division. Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a court imposed a sentence including a prison term of a type described in this division and failed to notify the offender pursuant to division (B)(2)(c) of section 2929.19 of the Revised Code regarding ...

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