State v. Ivey
2017 Ohio 4162
| Ohio Ct. App. | 2017Background
- In 2003 Dale Ivey was convicted by jury of aggravated murder, murder, and escape; the trial court in 2004 sentenced him to life with parole eligibility after 20 years (aggravated murder), 15-to-life (murder), and 8 years (escape), with the escape term consecutive and the murder/aggravated murder terms concurrent.
- At the 2004 sentencing the court gave deficient post-release control (PRC) notification (generally stating the parole board may impose PRC up to five or more years) rather than notifying Ivey of the mandatory 3-year PRC applicable to his second-degree felony escape conviction.
- Ivey sought relief years later; the State conceded error and agreed to resentencing. In February 2016 the trial court held a de novo resentencing, merged the murder convictions, imposed sentences, and orally notified Ivey of a 3-year PRC but entered a written judgment stating 5 years of PRC. A subsequent March 11, 2016 nunc pro tunc entry corrected counsel’s name only.
- The State Court of Appeals considered whether the trial court had jurisdiction to conduct a full resentencing, whether the written entry’s PRC term could be corrected nunc pro tunc, and several assignments of error raised by Ivey.
- The court concluded the original 2004 PRC omission rendered only that portion of the sentence void, entitling Ivey to a limited resentencing solely to impose proper PRC; the trial court exceeded its authority by conducting a de novo resentencing on other issues and the portions of the 2016 entry reflecting that excess were vacated.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Trial court jurisdiction to conduct de novo resentencing beyond correcting PRC | Ivey argued resentencing was proper to correct multiple errors including merger of allied offenses | State conceded errors and agreed to resentencing | Court: Trial court lacked authority to redo entire sentencing; jurisdiction extended only to correct void PRC portion (limited resentencing) |
| Whether failure to give statutorily mandated PRC in 2004 made sentence void | Ivey contended original PRC notice was defective | State conceded the PRC notice was deficient | Court: Failure to impose mandatory PRC made that part of the sentence void and entitled defendant to limited resentencing for PRC only (Fischer) |
| Whether the written 2016 entry’s 5-year PRC can be corrected to 3 years by nunc pro tunc | Ivey sought correction to reflect oral 3-year PRC at hearing | State did not oppose correcting clerical inconsistency with transcript | Court: Where transcript shows correct PRC at hearing, trial court may correct the written entry via nunc pro tunc to reflect 3 years |
| Right to allocution at limited resentencing | Ivey argued he was denied the opportunity to allocute at resentencing | State maintained court provided opportunity or error harmless because PRC imposition is mandatory | Court: Trial court complied with allocution requirement; any error would be harmless since no discretion exists over mandatory PRC |
Key Cases Cited
- State v. Raber, 134 Ohio St.3d 350 (2012) (trial courts retain jurisdiction to correct void sentences and clerical errors)
- State v. Fischer, 128 Ohio St.3d 92 (2010) (failure to impose statutorily mandated post-release control renders that part of the sentence void and requires resentencing limited to PRC)
- State v. Qualls, 131 Ohio St.3d 499 (2012) (when the transcript shows correct PRC notification, the sentencing entry can be corrected by nunc pro tunc)
- State v. Payne, 114 Ohio St.3d 502 (2007) (definition and consequences of a void sentence)
- State v. Fry, 125 Ohio St.3d 163 (2010) (harmless-error analysis applies to Crim.R. 32(A) allocution violations)
Outcome: Judgment affirmed in part, vacated in part; remanded for issuance of a nunc pro tunc entry correcting the post-release control term to three years.