State v. Hibbler
2019 Ohio 3689
Ohio Ct. App.2019Background
- John Hibbler was convicted by jury of felony murder (Case No. 2000-CR-636) and attempted aggravated burglary plus improper discharge of a firearm (Case No. 2001-CR-81); the cases were tried together.
- At sentencing the court imposed an aggregate term of 34 years to life and, for each offense, stated "up to a maximum of five years" of mandatory post-release control (PRC).
- In 2018 Hibbler moved to vacate the void PRC language; the trial court agreed PRC had been misstated and issued amended nunc pro tunc entries in February 2019: it removed PRC for the murder case and changed the PRC for the second-degree felonies to three years.
- Hibbler appealed only the amended entry for Case No. 2001-CR-81, arguing the court lacked jurisdiction and violated Crim.R. 43(A) by using a nunc pro tunc entry to alter PRC without his presence and without a resentencing hearing.
- The court analyzed whether deletion or alteration of PRC by nunc pro tunc was permissible and whether imposition of the three-year PRC for the second-degree felonies required a new hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court could remove PRC for the murder conviction via nunc pro tunc without resentencing | State: deletion of an improper PRC term is clerical and may be corrected nunc pro tunc | Hibbler: court lacked jurisdiction or violated Crim.R.43 by altering sentence after sentencing | Court: removal of PRC for murder (an unclassified felony not subject to PRC) via nunc pro tunc was permissible; no resentencing required |
| Whether the court could impose a three-year PRC for the second-degree felonies via nunc pro tunc without a resentencing hearing with the defendant present | State: the three-year PRC properly reflects law for second-degree felonies and may be corrected | Hibbler: using nunc pro tunc to impose PRC added punishment and required his presence under Crim.R.43 and Beasley/Fischer | Court: imposition of three-year PRC via nunc pro tunc was improper; reversed as to 2001-CR-81 and remanded for a limited resentencing on PRC only |
Key Cases Cited
- McCain v. Huffman, 151 Ohio St.3d 611 (unclassified felonies like murder are not subject to post-release control)
- State v. Clark, 119 Ohio St.3d 239 (parole—not PRC—applies to convictions for unclassified felonies)
- State v. Qualls, 131 Ohio St.3d 499 (trial court must notify defendant at sentencing when PRC applies)
- State v. Fischer, 128 Ohio St.3d 92 (failure to properly impose PRC renders that portion of sentence void; limited resentencing required to impose PRC)
- State v. Holdcroft, 137 Ohio St.3d 526 (trial court loses authority to add PRC for an offense after the prison term for that offense has been served)
- State ex rel. Roberts v. Marsh, 156 Ohio St.3d 440 (deleting an erroneously included PRC provision distinguishes deletion from adding punishment and does not require resentencing)