2019 Ohio 4180
Ohio Ct. App.2019Background
- In 2003 Jason Herron was convicted of murder, felonious assault, improper discharge of a firearm into a habitation, having a weapon while under disability, and related firearm specifications; the trial court imposed an aggregate 38 years to life.
- In Sept. 2017 Herron filed a pro se motion to correct sentence/for resentencing, arguing post-release control (PRC) had not been properly imposed.
- In Feb. 2018 the trial court held a video hearing, misstated the mandatory PRC for felonious assault as five years (should be three), and later entered an amended judgment listing PRC terms (the amended entry correctly listed three years for felonious assault).
- Appellate counsel initially filed an Anders brief; the court found a non-frivolous issue—whether PRC was imposed for an offense (felonious assault) for which Herron had already completed his prison term—and appointed new counsel.
- The court concluded Herron had completed the felonious-assault sentence by late 2016, so by the 2018 resentencing the trial court lacked authority to impose PRC for that count; it vacated the PRC for felonious assault and remanded for a corrected judgment entry.
- The court treated other claimed errors (video sentencing, curtailed allocution, ineffective assistance) as harmless because the asserted prejudice flowed from the now-corrected PRC error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial court misstated PRC length for felonious assault (5 yrs vs 3 yrs) | State concedes the trial court misstated the mandatory PRC and the amended entry correctly lists three years | Herron argued the court told him five years at resentencing | Court agreed with the state; amended entry correctly lists three years (error acknowledged) |
| Imposition of PRC for an offense already completed (felonious assault) | State concedes the court lacked authority to impose PRC for a sentence Herron had already completed | Herron argued PRC should not be imposed because he finished that sentence in 2016 | Court held trial court erred; vacated PRC for the felonious-assault count and remanded for corrected entry |
| Resentencing by video without explicit waiver of physical presence (Crim.R.43) | State concedes error but argues it was harmless | Herron argued his right to be physically present was violated and he was prejudiced | Court found the error harmless because the only alleged prejudice (improper PRC) has been corrected |
| Trial court curtailed allocution; ineffective assistance of counsel for not objecting to PRC errors | State contends any error was harmless/no prejudice | Herron argued allocution was cut off and counsel ineffective for failing to object/missing PRC on original entry | Court overruled these claims as harmless; no prejudice after PRC correction |
Key Cases Cited
- State v. Holdcroft, 1 N.E.3d 382 (Ohio 2013) (trial court cannot impose post-release control for an offense after the defendant already completed the sentence)
- State v. Christian, 99 N.E.3d 887 (2d Dist. 2017) (in absence of directions, courts may infer order of service from sequence of sentences in the judgment entry)