State v. Braddy

[Cite as State v. Braddy, 

.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 97816



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                   CHESTER BRADDY
                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-420714

             BEFORE:           Jones, J., Celebrezze, P.J., and Cooney, J.

             RELEASED AND JOURNALIZED: October 11, 2012
                                  -i-

ATTORNEY FOR APPELLANT

Brian R. McGraw
1370 Ontario Street, Suite 2000
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Daniel Van
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

      {¶1} Appellant Chester Braddy appeals the trial court’s denial of his motion for a

de novo sentencing hearing to properly advise of postrelease control. We affirm.

      {¶2} On July 31, 2003, a jury convicted Braddy of multiple counts of rape and

gross sexual imposition, as well as one count of endangering children. The trial court

imposed an aggregate prison sentence of 20 years to life.       After a House Bill 180

hearing, Braddy was classified as a sexual predator. Braddy appealed his convictions,

which we affirmed in a decision dated June 17, 2004. State v. Braddy, 8th Dist. No.

83462, 

.

      {¶3} On October 14, 2011, Braddy filed a motion, pro se, seeking a de novo

sentencing hearing on the grounds that postrelease control had not been properly imposed.

Braddy also argued that his original sentence was not a final appealable order.

      {¶4} On November 28, 2011, the trial court convened a hearing that was limited to

the proper imposition of postrelease control.     The trial court appointed counsel to

represent Braddy, who consented to an appearance via video satellite. After finding that

Braddy’s original sentence was a final appealable order, the trial court proceeded to

properly impose postrelease control.   Braddy now appeals and asserts one error for our

review:
       Assignment of Error I: Regarding the failure to properly advise of post
       release control, the court should reconsider and overrule State v. Fischer
       and return to the standard enunciated in State v. Bezak.

       {¶5} Preliminarily, we note that in State v. Fischer, 

,

, 

, the Ohio Supreme Court held that where postrelease

control was erroneously imposed, resentencing is limited to proper imposition of

postrelease control. 

 The defendant is not entitled to be resentenced on the entire

sentence — only the portion that is void may be vacated and otherwise amended. State v.

Gregley, 8th Dist. No. 97469, 

.

       {¶6} In the instant case, it is undisputed that postrelease control was not properly

imposed because the trial court merely stated that “post release control is part of this

prison sentence for the maximum period allowed for the above felony(s) under R.C.

2967.28.”     The trial court never informed Braddy that it was a mandatory period of five

years and did not explain the consequences of violating postrelease control.          R.C.

2967.28(B)(1). See also State v. Griffin, 8th Dist. No. 83724, 

,

quoting State v. Jones, 8th Dist. No. 77657, 2001 Ohio App. Lexis 2330 (May 24, 2001).

As previously stated, at the resentencing hearing, the trial court properly imposed

postrelease control.

       {¶7} Consequently, although Braddy was entitled to a new sentencing hearing

under Bezak, pursuant to Fischer that hearing was limited to the issue of postrelease

control, which is precisely what occurred in this case. State v. Harris, 

, 

, 

. As an appellate court, we are without power to

overrule a supreme court decision as appellant proposes.

      {¶8} The sole assignment of error is overruled.

      {¶9} Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution. The defendant’s conviction having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
COLLEEN CONWAY COONEY, J., CONCUR