State v. Ables
2011 Ohio 5873
Ohio Ct. App.2011Background
- Abels pleaded guilty April 1, 2004 to illegal manufacture/cultivation of drugs; sentenced April 29, 2004 to six years with consecutive terms for other cases; judgment did not mention post-release control.
- The sentencing entry stated the six-year term would be served first, followed by ten-month terms in two other cases; no post-release-control notification appeared in the entry.
- Dec. 20, 2010, the trial court issued a nunc pro tunc entry adding three years of post-release control, without a hearing or Abels’ presence or notice.
- Abels remained imprisoned for other cases when the nunc pro tunc entry was entered in 2010, and he argues he had completed the six-year sentence in his case by that time.
- Abels filed a delayed appeal in 2011 challenging the nunc pro tunc entry, asserting lack of authority to modify after sentence completion; the appellate court agreed with him and reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the nunc pro tunc entry adding post-release control was authorized after completion of the sentence | Abels: court lacked authority after completion | State (implied): remedy under statute permitted correction | Void and not enforceable; reversal affirmed. |
| Whether failure to notify about post-release control in the original sentencing entry rendered it void | Abels: notification requirement not met, entry void | State: need to correct via proper procedures | Original entry void for lack of required post-release-control notification; correction not permissible after completion. |
| Proper procedure for correction under RC 2929.191 when post-release control was omitted | Abels: remedy must occur before release; nunc pro tunc after completion invalid | State: statute contemplates correction prior to release | Remedy cannot validate post-release control after sentence completion; correction not available. |
| Effect of completion of sentence on trial court’s authority to resentence for post-release control | Abels: completion ends authority | State: authority remains | Authority to resentence after completion does not exist; entry void. |
Key Cases Cited
- State v. Bloomer, 122 Ohio St.3d 200 (2009-Ohio-2462) (mandatory post-release-control notification required; void otherwise)
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (remedy for failed notification in sentencing; must be in the judgment)
- State v. Arnold, 289 Ohio App.3d 238 (2009-Ohio-3636) (correction of judgments before release; procedures under RC 2929.191)
- Hernandez v. Kelly, 108 Ohio St.3d 395 (2006-Ohio-126) (resentencing to impose post-release control not allowed after term completion)
- State v. Bezak, 114 Ohio St.3d 94 (2007-Ohio-3250) (principle that post-release-control issues must be resolved in sentencing; void otherwise)
- State v. Simpkins, 117 Ohio St.3d 420 (2008-Ohio-1197) (post-release-control issues require proper notice and sentencing framework)
- Turner, 10th Dist. No. 06AP-491, 2007-Ohio-2187 (2007-Ohio-2187) (analysis of multiple consecutive sentences and impact on post-release control)