Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Alston

Court of Appeals of Ohio, Ninth District, Lorain

May 8, 2017

STATE OF OHIO Appellee
v.
MARK ALSTON Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 05CR067825

          DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting Attorney, for Appellee.

          MARK ALSTON, pro se, Appellant.

          DECISION AND JOURNAL ENTRY

          JENNIFER HENSAL PRESIDING JUDGE.

         {¶1} 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.

         I.

         {¶2} 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.

         II.

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 CONSTITUTION.

         {¶3} 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.

         {¶4} 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 last[.]").

         {¶5} 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.