State v. Evans
2011 Ohio 4630
Ohio Ct. App.2011Background
- Evans was convicted in 2006 in Pickaway County Common Pleas Court on multiple counts (burglary, theft, failure to comply with police, safe cracking, receiving stolen property) and his conviction and sentence were affirmed on appeal (Evans I).
- In 2009 Evans moved for a new trial, which the trial court denied and which this court affirmed (Evans II).
- On August 24, 2010 Evans filed a motion for de novo sentencing alleging the trial court failed to inform him of post-release-control consequences, rendering his sentence void.
- The trial court overruled the motion for de novo sentencing, and Evans appealed challenging the notice requirements related to post-release control.
- The court held that the sentencing hearing and journal entry satisfied notice requirements for post-release control, but that the failure to reiterate the warning in the judgment could be corrected under R.C. 2929.191 rather than requiring a de novo sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether void sentence due to notice failure requires de novo sentencing | Evans contends failure to include post-release notice voids sentence. | State argues 2929.191 permits nunc pro tunc correction; no de novo required. | Not void; remanded for correction under 2929.191 |
| Whether the additional post-release notification must be in the judgment entry | Evans asserts omission in judgment entry unconstitutional. | State maintains nunc pro tunc correction suffices; no de novo hearing. | Remand for correction under 2929.191; de novo not required |
Key Cases Cited
- Hernandez v. Kelly, 108 Ohio St.3d 395 (Ohio 2006) (notice of post-release control must be incorporated in journal entry)
- State v. Jordan, 104 Ohio St.3d 21 (Ohio 2004) (journal entry must reflect post-release control warning)
- Singleton, 124 Ohio St.3d 173 (Ohio 2009) (requires notice of post-release consequences in judgment where applicable)