2020 Ohio 5155
Ohio Ct. App.2020Background
- Allen was indicted in two 2018 Dublin cases: robbery (18CR-5212, F3) and burglary/theft (18CR-5358, F2); she pleaded guilty to robbery (F3) and burglary (F2) on March 6, 2019.
- At sentencing (Apr. 3, 2019) the court imposed 3 years (18CR-5358) and 18 months (18CR-5212), to run concurrently, and orally told Allen she would be on post-release control for three years.
- The written judgments contained inconsistent PRC language: 18CR-5212 said a "mandatory period of post-release control of up to 3 years," while 18CR-5358 said she "may receive an optional period of post-release control of up to 3 years." Both entries also stated 0 days jail-time credit.
- A separate 2016 community-control revocation case showed 173 days credited and was terminated at sentencing; the trial court applied the bulk of jail-time credit to that 2016 case rather than to the 2018 convictions.
- Allen appealed, arguing (1) the sentencing entries failed to properly notify/reflect the mandatory three-year post-release control for both counts, and (2) she was entitled to jail-time credit for days served on the 2018 cases.
- The Tenth District affirmed in part, reversed in part, and remanded for limited nunc pro tunc corrections: fix the PRC language in both entries (correct 18CR-5358 as mandatory; remove/clarify the "up to" language in 18CR-5212) and correct jail-time credit to reflect 2 days of credit on each concurrent 2018 sentence.
Issues
| Issue | State's Argument | Allen's Argument | Held |
|---|---|---|---|
| Whether the sentencing entry for 18CR-5212 (F3 robbery) properly notified of mandatory 3-year post-release control despite entry saying "mandatory ... up to 3 years" | Oral advisements were proper; wording in entry was imperfect but harmless; total record shows mandatory notice | "Up to" language makes PRC discretionary; entry must be corrected to mandatory 3 years (nunc pro tunc) | Court: Oral advisement, plea forms, and notice suffice under totality of circumstances; entry is adequate under Grimes but "up to" unnecessary — remand for limited nunc pro tunc to correct language |
| Whether the sentencing entry for 18CR-5358 (F2 burglary) properly imposed mandatory 3-year post-release control despite entry saying "may receive an optional ... up to 3 years" | State conceded the entry erroneously described PRC as optional and agreed proper remedy is nunc pro tunc correction | Entry must be changed to reflect mandatory 3-year PRC | Court: Entry erroneously indicates PRC was discretionary; remand for limited nunc pro tunc to correct the judgment entry in compliance with Grimes |
| Whether jail-time credit accrued before sentencing must be applied to the 2018 concurrent sentences (per State v. Fugate) instead of being applied to the 2016 revocation sentence | Fugate inapplicable because the court treated the 2016 revocation as terminated/time served and did not order it concurrent with the 2018 sentences; however, State concedes 2 days credit should be applied to each 2018 sentence | Fugate requires jail-time credit be applied to each concurrent term; Allen sought 173 days on the 2018 counts | Court: Fugate does not apply to full credit because revocation sentence was effectively time served/terminated and not ordered concurrent; but Allen is entitled to 2 days credit on each concurrent 2018 sentence; remand to correct jail-time credit accordingly |
Key Cases Cited
- State v. Qualls, 131 Ohio St.3d 499 (2012) (trial court must give statutorily compliant notification of post-release control and incorporate that notice into the sentencing entry)
- State v. Grimes, 151 Ohio St.3d 19 (2017) (to validly impose post-release control when oral advisals are given, the sentencing entry must state whether PRC is discretionary or mandatory, the duration, and that the APA will administer PRC and consequences for violations)
- State v. Fugate, 117 Ohio St.3d 261 (2008) (when multiple prison terms are concurrent, jail-time credit under R.C. 2967.191 must be applied to each concurrent term)