State v. Cvijetinovic
2013 Ohio 3251
Ohio Ct. App.2013Background
- In 1999 Cvijetinovic pleaded guilty and received aggregate prison terms across three case numbers (CR-368577, CR-368578, CR-368579); consecutive/concurrent structure produced a 12-year sentence on CR-368579 (first-degree felonies plus firearm specs).
- This court reversed the original sentences in 2003 for lack of findings supporting consecutive terms and remanded for resentencing.
- At the 2003 resentencing the trial court reimposed the same aggregate sentences and orally advised Cvijetinovic he would be subject to five years of mandatory postrelease control for the first-degree felonies in CR-368579.
- The 2003 journal entry, however, omitted any reference to postrelease control; the transcript shows the oral advisement was given.
- In 2011 the Department of Rehabilitation and Correction notified the court that postrelease control was not imposed in the records; the trial court held a video hearing and formally imposed five years of postrelease control on CR-368579.
- Cvijetinovic moved to vacate the postrelease-control imposition (arguing it was added after his sentence was served and he was not present); the trial court denied relief and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether postrelease control may be imposed nunc pro tunc when oral advisement occurred but the journal entry omitted it | State: omission can be corrected nunc pro tunc where defendant was advised at sentencing | Cvijetinovic: court unlawfully added postrelease control after sentence had been served; lack of presence at 2011 hearing | Court: Affirmed — nunc pro tunc correction permitted; advisement at 2003 hearing sufficed |
| Whether postrelease control was improperly imposed on a completed sentence | State: 12-year sentence in CR-368579 had not been completed in 2003, so PRC applied | Cvijetinovic: PRC was applied to a sentence already served | Court: PRC imposition on CR-368579 was proper because that term remained to be served at resentencing |
| Whether due process/constitutional rights were violated by imposing PRC after release | State: correction of clerical omission does not require new sentencing hearing | Cvijetinovic: procedural/constitutional violation (not present at hearing) | Court: No constitutional violation; nunc pro tunc correction authorized without new sentencing hearing |
| Whether res judicata bars challenge to postrelease control | State: argues appeal barred by res judicata (alternative) | Cvijetinovic: contests merits of PRC imposition | Court: Did not adopt res judicata bar; addressed substantive propriety and ordered nunc pro tunc correction |
Key Cases Cited
- Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158 (10th Dist. 1983) (purpose of accelerated calendar opinions)
- State ex rel. Womack v. Marsh, 943 N.E.2d 1010 (Ohio 2011) (clerical omission of postrelease control may be corrected nunc pro tunc)
- State v. Qualls, 967 N.E.2d 718 (Ohio 2012) (when defendant was notified of postrelease control at sentencing but entry omitted it, nunc pro tunc correction is proper)
- State v. Murray, 979 N.E.2d 831 (Ohio Ct. App. 2012) (nunc pro tunc correction of postrelease-control language permissible even after offender served sentence and was released)