[Cite as State v. Freeman, 2016-Ohio-8143.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103660




                                     STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  DAMIEN FREEMAN
                                                    DEFENDANT-APPELLANT




                              JUDGMENT:
                   AFFIRMED IN PART, VACATED IN PART,
                            AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                 Case No. CR-01-413757-ZA

        BEFORE: Laster Mays, J., Keough, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: December 15, 2016
                                  -i-



ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

By: Jeffrey Gamso
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113

John P. Parker
988 East 185th Street
Cleveland, Ohio 44119


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Brett Hammond
Assistant County Prosecutor
Justice Center, 9th floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant, Damien Freeman (“Freeman”), proceeding pro se,

appeals from the trial court’s denial of his motion to vacate a noncognizable offense and

motion for sentencing. We affirm the trial court’s decision, but remand for the limited

purpose of vacating the imposition of postrelease control.

I.     FACTS AND BACKGROUND

       {¶2}    In September 2001, at the age of 24, appellant was indicted by the

Cuyahoga County Grand Jury for allegations surrounding the August 23, 2001 death of

Ciera Freeman, 11 months of age.           Appellant was charged with murder (R.C.

2903.02(B)), felonious assault (R.C. 2903.11), and endangering children (R.C. 2919.22).

       {¶3} Counsel was appointed and, after several pretrials, and discovery, the trial

court determined that appellant was competent to stand trial. On December 11, 2001,

appellant retracted his not guilty plea. Appellant pled guilty to the murder charge (R.C.

2903.02(B)), and the trial court nolled the remaining charges.

       {¶4} On December 11, 2001, appellant was sentenced to a 15 years-to-life prison

term at the Lorain Correctional Institution with 103 days of jail-time credit. The entry

also provided that “postrelease control is part of this prison sentence for the maximum

period allowed for the above felony(s) under R.C. 2967.28.”

       {¶5}   On September 3, 2002, this court dismissed appellant’s pro se motion for

delayed appeal and appointment of counsel pursuant to App.R. 5(A). On April 5, 2004,
and August 4, 2004, appellant’s motions to withdraw his plea pursuant to Crim.R. 32.1

were denied.

       {¶6} Appellant’s motion for the court reporter’s transcript was denied on January

25, 2005, and his pro se appeal filed February 15, 2005, was sua sponte dismissed by this

court on April 15, 2005, for failure to file a praecipe pursuant to Loc.App.R. 9(B).

       {¶7}      On September 15, 2015, appellant filed a pro se “motion for vacation of

noncognizable offense and motion for sentencing (for vacation of unauthorized

imposition of postrelease control).” The motion, partly based on State v. Nolan, 141
Ohio St. 3d 454, 2014-Ohio-4800, 25 N.E.3d 1016, 1 was denied on October 2, 2015.

Appellant filed the instant appeal on October 23, 2015, the oral argument for which was

continued to allow appointment of counsel.

II.    ASSIGNMENTS OF ERROR

       {¶8}      Appellant appeals, proffering the following assignments of error:

       I.        The trial court committed error when it informed Mr. Freeman that it
                 would impose and then did impose, as part of his sentence for
                 murder, a period of postrelease control.

           II.   The trial court erred in finding appellant guilty of felony murder
                 under R.C. 2903.02(B) where appellant was not, and could not have
                 been, found guilty of an underlying felony.

III.   LAW AND ANALYSIS


       1
        It appears in appellant’s most recent brief that the Nolan argument
has been abandoned because Nolan held that attempted felony murder is not
a cognizable crime in Ohio (R.C. 2903.02(B)), which does not apply to this
case.
       A.      Assignment of Error No. I

       {¶9}      Appellant first argues that his conviction should be vacated and a new

trial awarded due to the trial court’s failure to properly advise him of postrelease control;

therefore, his plea was not knowingly, intelligently and voluntarily made.                 We

acknowledge the state’s position that this argument may be barred by res judicata,

because the issue could have been raised on direct appeal. State v. Ketterer, 126 Ohio

St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59 (res judicata bars the assertion of claims

in a motion to withdraw a guilty plea that was, or could have been, raised in a prior

proceeding.) However, in light of the specific facts of this case, we will address the

argument. We find that the argument lacks merit.

       {¶10}    Appellant relies on State v. Rembert, 8th Dist. Cuyahoga No. 99707,

2014-Ohio-300, ¶ 24, where Rembert challenged the validity of his plea due to the trial

court’s failure to provide proper instruction regarding postrelease control and parole. We

determined that Rembert’s plea was knowingly, intelligently, and voluntarily made. Our

analysis in Rembert applies here, but not to appellant’s benefit, because our decision does

not entitle appellant to a new trial.

       {¶11} Appellant was sentenced to 15 years to life, and advised that “postrelease

control is part of this prison sentence for the maximum period allowed for the above

felony(s) under R.C. 2967.28.” As we acknowledged in Rembert, who was sentenced to

life imprisonment with parole eligibility after 25 years, “because parole is not certain to

occur, the trial court would not be required to explain it in the plea colloquy.” Id. at ¶ 27.
       {¶12} R.C. 2967.28 does not provide for postrelease control for felony murder;

therefore, it was error to impose postrelease control in this case. State v. Davis, 8th Dist.

Cuyahoga No. 95440, 2011-Ohio-2526, ¶ 13.              However, appellant has not been

prejudiced thereby. State v. Stokes, 8th Dist. Cuyahoga No. 93154, 2010-Ohio-3181, ¶ 9.

 In addition:

       [A] sentencing entry that incorrectly imposes postrelease control does not
       render the entire sentence void. State v. Fischer, 128 Ohio St. 3d 92,
       2010-Ohio-6238, 942 N.E.2d 332, ¶ 26. Only that portion of the judgment
       that improperly imposes postrelease control is void. Id.; [State] v. Evans,
       8th Dist. Cuyahoga No. 95692, 2011-Ohio-2153, ¶ 8-9.

State v. Opalach, 8th Dist. Cuyahoga No. 100938, 2014-Ohio-5037, ¶ 8.

       {¶13}      The state has conceded this portion of the error. We thus direct that a

nunc pro tunc entry be entered to delete the imposition of postrelease control. “A trial

court may use a nunc pro tunc entry to correct mistakes in judgments, orders, and other

parts of the record so the record speaks the truth. State v. Spears, 8th Dist. Cuyahoga

No. 94089, 2010-Ohio-2229, ¶ 1.”         State v. Davis, 8th Dist. Cuyahoga No. 95440,

2011-Ohio-2526, ¶ 15.

       B.       Assignment of Error No. II

       {¶14} Appellant’s second assigned error challenges the felony murder conviction.

 We find that this error lacks merit.

       {¶15}       Appellant was convicted under R.C. 2903.02(B):

       (B) No person shall cause the death of another as a proximate result of the
       offender’s committing or attempting to commit an offense of violence that
       is a felony of the first or second degree and that is not a violation of section
       2903.03 or 2903.04 of the Revised Code.
         {¶16}     As the state aptly observes, appellant’s guilty plea is a complete

admission of guilt. In exchange for the guilty plea to felony murder, the remaining

charges were nolled. By law, appellant’s guilty plea constitutes a waiver of the asserted

error here:

         [A] defendant waives all appealable errors that may have occurred at trial
         when he or she enters a guilty plea as part of a plea bargain, unless the
         purported errors are shown to have precluded the defendant from entering a
         knowing and voluntary plea. State v. Brusiter, 8th Dist. Cuyahoga No.
         98614, 2013-Ohio-1445, ¶ 5; State v. Milczewski, 8th Dist. Cuyahoga No.
         97138, 2012-Ohio-1743, ¶ 5, citing State v. Kelley, 57 Ohio St. 3d 127, 566
N.E.2d 658 (1991).

(Emphasis added.) State v. Davis, 8th Dist. Cuyahoga No. 101502, 2015-Ohio-1144, ¶ 13.



         {¶17} In addition, a plea bargain is a matter of contract, which is enforceable by its

terms. See State v. Dunbar, 8th Dist. Cuyahoga No. 87317, 2007-Ohio-1693, ¶16, citing

State v. Carpenter, 68 Ohio St. 3d 59, 61, 623 N.E.2d 66 (1993).

         {¶18} Based on the foregoing, we find that the appellant’s second assigned error

fails.

IV.      CONCLUSION

         {¶19} Appellant’s convictions are affirmed; however, we remand the case to the

trial court to issue a nunc pro tunc entry deleting the imposition of postrelease control.

         {¶20} Judgment is affirmed in part, vacated in part, and remanded.

         It is ordered that appellee and appellant share equally the 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 common

pleas 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.



_________________________________________
ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
EILEEN T. GALLAGHER, J., CONCUR