2016 Ohio 926
Ohio Ct. App.2016Background
- Morrio R. Green was indicted on multiple drug- and weapon-related counts; charges were amended to reduce trafficking to a second-degree felony and possession to third-degree.
- Mid-trial Green pled guilty; possession merged into trafficking and the state elected sentencing on the trafficking count.
- At sentencing the court announced an aggregate prison term (explained at hearing as 8 years for the instant case, plus 1 year consecutive for a separate probation-violation case) and stated Green would be subject to five years of postrelease control.
- Defense counsel orally asked the court to find Green indigent and waive mandatory drug fines; the court said it would waive fines, but counsel did not file a required affidavit of indigency prior to sentencing.
- The written sentencing entry mistakenly set postrelease control at five years (instead of three), contained drafting errors about merged counts, and did not reflect the nunc pro tunc corrections needed to mirror the oral sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court erred by imposing five years postrelease control for a second-degree felony | State concedes five years was imposed but did not dispute correction | Green: mandatory postrelease control for second-degree felony is three years | Court: modify sentence to correct postrelease control to three years (sustained) |
| Whether counsel was ineffective for failing to file affidavit of indigency to waive mandatory drug fine | State concedes counsel did not file affidavit | Green: failure prevented waiver of mandatory $7,500 drug fine and constituted ineffective assistance where court likely would have found indigency | Court: ineffective assistance; remand to allow Green to file affidavit so court can decide waiver (sustained) |
| Whether sentencing entry incorrectly reflects total prison term and sentence structure (including merger language) | State did not defend the drafting errors in the entry | Green: journal entry shows 8 years but transcript reflects sentencing structure and a separate 1-year consecutive sentence for probation violation; entry miscites merged counts | Court: sentencing transcript governs; direct trial court to issue nunc pro tunc entry correcting totals and merge language (sustained) |
Key Cases Cited
- State v. Fischer, 942 N.E.2d 332 (Ohio 2011) (appellate courts may correct defective postrelease-control terms without remand when trial court had no discretion)