[Cite as State v. Cottrell, 2012-Ohio-2634.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 97629



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     STEVE COTTRELL
                                                     DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-409361

        BEFORE: E. Gallagher, J., Celebrezze, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED:                    June 14, 2012
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Steve Cottrell appeals from the trial court’s denial of his motion to void

judgment. Cottrell argues that he is entitled to a de novo sentencing hearing because the

trial court failed to impose a mandatory period of postrelease control and that his

judgment of conviction journalized May 2, 2002 is not a final, appealable order. For the

following reasons, we reverse the decision of the trial court and remand the matter for

resentencing for the proper imposition of postrelease control.

       {¶2} On March 28, 2002, a jury found Cottrell guilty of one count of aggravated

murder with firearm and criminal gang activity specifications and three counts of

attempted murder with firearm and criminal gang activity specifications. On April 26,

2002, the trial court sentenced Cottrell to 20 years to life for aggravated murder, three

years for the firearm specification and three years for the criminal gang activity

specification, to be served consecutively to each other; five years for one count of

attempted murder to be served consecutive to the aggravated murder charge and five

years each on the remaining attempted murder charges to run concurrently to the other

sentences. Lastly, the trial court sentenced Cottrell to the possibility of five years of

postrelease control under R.C. 2967.28 for each count.

       {¶3} Cottrell appealed and this court affirmed his conviction and sentence. See

State v. Cottrell, 8th Dist. No. 81356, 2003-Ohio-5806.

       {¶4} On August 3, 2011, Cottrell filed a motion to void judgment, which the
state opposed. On November 1, 2011, the trial court denied Cottrell’s motion. Cottrell

appeals, raising the two assignments of error contained in the appendix to this opinion.

       {¶5} In his first assignment of error, Cottrell argues that he is entitled to a de

novo sentencing hearing because the trial court failed to properly impose the mandatory

terms of postrelease control for his convictions. We agree, in part, with Cottrell’s

argument.

       {¶6} When the trial court sentenced Cottrell on April 26, 2002, the trial court

stated “the possibility of postrelease control is a part of this prison sentence for a period

of five years on each count for the above felony(s) under R.C. 2967.28.”

       {¶7} R.C. 2967.28 provides:

       (B) Each sentence to a prison term for a felony of the first degree, for a
       felony of the second degree, * * * shall include a requirement that the
       offender be subject to a period of post-release control imposed by the
       parole board after the offender’s release from imprisonment. * * *

       (1) For a felony of the first degree * * *, five years[.]

       {¶8}     In State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124,

2010-Ohio-2671, 931 N.E.2d 110, the Ohio Supreme Court concluded that postrelease

control must be imposed upon a defendant who receives an indefinite sentence of life in

prison with parole eligibility for a first-degree felony conviction.          See State v.

Falkenstein, 8th Dist. No. 96659, 2011-Ohio-5188. Of paramount concern to the court

was the legislative intent in enacting R.C. 2967.28. The Supreme Court found that the

statute’s plain, unambiguous language expressly requires the inclusion of a mandatory

postrelease control term of five years for each prison sentence for felonies of the first
degree and felony sex offenses.        McCormick; Falkenstein.        The Supreme Court

determined that “[b]ecause R.C. 2967.28(B)(1) is phrased in broad, sweeping language,”

the courts “must accord it broad, sweeping application.”              McCormick.       Thus,

“[a]lthough it could be implied from [R.C. 2967.28(F)] that postrelease control is

unnecessary for indefinite or life sentences, there is no specific language in either this or

other provisions that modifies the express language in R.C. 2967.28(B)(1) requiring

postrelease control.” McCormick; Falkenstein. “That is, R.C. 2967.28(B)(1) is not

expressly limited to definite sentences; instead, it applies broadly to ‘[e]ach sentence to a

prison term for a felony of the first degree.’” McCormick; Falkenstein.1

          {¶9} Because Cottrell was sentenced on four first-degree felony charges, five

years of postrelease control is mandatory, not merely a possibility, and the trial court

erred when it denied his motion. The state concedes as much.

          {¶10} Thus we remand the matter for resentencing. However, this remand is not

a de novo sentencing hearing as argued by Cottrell, but it is limited to the proper

imposition of postrelease control. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,

942 N.E.2d 332, at paragraph two of the syllabus.

          {¶11} In his second assignment of error, Cottrell argues that his judgment of

conviction, which was journalized May 2, 2002, is not a final, appealable order because



      1
        While we note that Cottrell will be subject to a period of parole under his
indefinite sentence for aggravated murder, this appeal is limited to the correct
application of postrelease control. As such, we will limit our discussion to the issue
of postrelease control. See R.C. 2967.28(F)(4).
the clerk of court’s stamp of “received for filing” is inadequate. We overrule this

assignment of error.

       {¶12} Cottrell could have raised this argument on his direct appeal in 2003; as

such, this argument is precluded by the doctrine of res judicata. Fischer. Further,

Cottrell’s judgment of conviction is time stamped by the clerk of courts, which

established that it was received by the clerk of court’s office on May 2, 2002. This

court reviewed his judgment of conviction in his direct appeal.

       {¶13} Cottrell’s second assignment of error is overruled.

       {¶14} The judgment of the trial court is reversed, and the matter remanded for a

limited resentencing to properly impose postrelease control.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

lower court to carry this judgment into execution.

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

Rule 27 of the Rules of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

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

Assignments of Error:

      I. “Whether the trial court erred by failing to accord defendant a de novo hearing
      on his motion for sentencing where the record (journal entry) on its face presents
      a prima facie case for the requested relief.”

      II. “Where the failure to properly file the attempted journal entry finding guilt
      and imposing sentence offends due process.”
