State v. Santiago
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[Cite as State v. Santiago, 2012-Ohio-1763.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 11AP-841 v. : (C.P.C. No. 01CR-04-2340) Raul Santiago, : (REGULAR CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on April 19, 2012 Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee. Shaw & Miller, Mark J. Miller, and Nicholas J. Testa, for appellant. APPEAL from the Franklin County Court of Common Pleas. FRENCH, J. {¶ 1} Defendant-appellant, Raul Santiago ("appellant"), appeals the judgment of the Franklin County Court of Common Pleas denying his motion for a new sentencing hearing. For the following reasons, we affirm that judgment, but we strike the part of the trial court's sentencing entry that imposed post-release control. I. BACKGROUND No. 11AP-841 2 {¶ 2} In 2002, appellant was convicted of aggravated murder with a firearm specification, and the trial court sentenced him to 23 years to life imprisonment. At the sentencing hearing, the court told him that he would be placed on post-release control if he were released from prison. The court also stated in the sentencing entry that it imposed post-release control. In 2010, appellant filed a motion for a new sentencing hearing and argued that he must be given a sentence without post-release control. The court denied the motion. II. ASSIGNMENT OF ERROR {¶ 3} Appellant filed a timely notice of appeal and now assigns the following as error: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION FOR A DE NOVO RESENTENCING HEARING. III. DISCUSSION {¶ 4} In his single assignment of error, appellant argues that the trial court erred by denying his motion for a new sentencing hearing. We disagree. {¶ 5} Appellant requested the hearing on the basis that it was improper for the trial court to sentence him to post-release control. We agree with appellant that postrelease control does not apply to his aggravated murder conviction. See State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 36. Accordingly, the trial court lacked authority to impose post-release control on appellant. See State v. Silguero, 10th Dist. No. 11AP274, 2011-Ohio-6293, ¶ 8. That part of appellant's sentence cannot stand, therefore, because it is void. See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 26-28. We need not require a resentencing hearing for appellant, however, because he is simply entitled to have post-release control stricken from the sentencing entry. See Silguero at ¶ 12-16. In fact, we may modify the entry on appeal. See Fischer at ¶ 29. {¶ 6} For these reasons, we conclude that the trial court did not err by denying appellant's motion for a new sentencing hearing. assignment of error. IV. CONCLUSION We overrule appellant's single No. 11AP-841 3 {¶ 7} Having overruled appellant's single assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas denying his motion for a new sentencing hearing. However, we strike the part of the trial court's sentencing entry that imposed post-release control. Judgment affirmed. TYACK and DORRIAN, JJ., concur.
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