FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 05CR067825
P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG,
Assistant Prosecuting Attorney, for Appellee.
ALSTON, pro se, Appellant.
DECISION AND JOURNAL ENTRY
JENNIFER HENSAL PRESIDING JUDGE.
Mark Alston appeals judgments of the Lorain County Court of
Common Pleas that denied his motion to vacate and correct
void sentence and his motion for modification of sentence.
For the following reasons, this Court affirms.
In 2005, a jury found Mr. Alston guilty of murder, aggravated
robbery, having weapons under disability, felonious assault,
and tampering with evidence as well as several firearm
specifications. The trial court sentenced him to a total of
24 years to life in prison. This Court upheld his convictions
on appeal. In March 2016, Mr. Alston moved to vacate and
correct his sentence, arguing that it is void because it
imposes post-release control for an unclassified special
felony and does not impose it for his other offenses. A week
later, Mr. Alston moved for modification of the degree of
offenses charged, arguing that the trial court sentenced him
for offense levels that are higher than supported by the
jury's verdicts. The trial court denied his motions. Mr.
Alston has appealed, assigning two errors.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING APPELLANT, MR. ALSTON'S
MOTION PURSUANT TO CRIM. R. 47 AND CRIM. R. 36, CLERICAL
MISTAKES, TO VACATE AND CORRECT VOID SENTENCE HEARING
JUDGMENT ORDER RECORD ON 7/8/2005, THAT IMPOSES A 5 YEAR
POST-RELEASE CONTROL FOR AN UNCLASSIFIED SPECIAL FELONY OF
MURDER IN VIOLATION OF DEFENDANT, MR. ALSTON, FIFTH, SIXTH,
AND FOURTEENTH AMENDMENT RIGHT UNDER THE UNITED STATES
CONSTITUTION, AND SECTION 10 AND 16 ARTICLE I OF THE OHIO
Mr. Alston argues that his sentence is void because it
imposes post-release control for his murder conviction, which
is an unclassified special felony to which post-release
control does not apply. He also argues that his sentence
fails to impose post-release control for the offenses to
which it does apply. Although the trial court sentenced Mr.
Alston in 2005, the Ohio Supreme Court has held that
"[a] sentence that does not include the statutorily
mandated term of postrelease control is void, is 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, paragraph one of the syllabus.
At sentencing, the trial court did not specifically indicate
the offenses to which its imposition of post-release control
applied. It merely told Mr. Alston that, upon his release, he
would be placed on post-release control for five years. Five
years is the correct length of post-release control for his
aggravated robbery conviction, which is a felony of the first
degree. R.C. 2967.28(B)(1). This Court has recognized that,
if a court is sentencing for multiple convictions, its
"imposition of one term of postrelease control is
proper." State v. Kracker, 9th Dist. Summit No.
25315, 2010-Ohio-5329, ¶ 6; see R.C.
2967.28(F)(4)(c) ("If an offender is subject to more
than one period of post-release control, the period * * * for
all of the sentences shall be the period * * * that expires
Upon review of the record, we conclude that the trial court
correctly determined that it had to impose a five-year term
of post-release control on Mr. Alston under Section 2967.28.
There is nothing in the record that suggests that it imposed
post-release control for Mr. Alston's murder offense
instead of his ...