State v. Johnston
2015 Ohio 4716
Ohio Ct. App.2015Background
- In 2001 Adam C. Johnston was convicted of aggravated murder and aggravated burglary (burglary merged) and sentenced to life for murder and 10 years (concurrent) for aggravated burglary.
- At the original sentencing the court did not orally inform Johnston of post-release control or his appellate rights, though the journal entry referenced post-release control.
- Johnston repeatedly sought resentencing to correct post-release control notification and to obtain an oral hearing and counsel; the trial court limited relief to post-release-control issues under R.C. 2929.191.
- The appellate court previously affirmed that only post-release-control errors could be corrected and that other challenges were barred by res judicata.
- Johnston later moved to set an oral resentencing date and a conveyance order to attend resentencing; the trial court denied the motion because Johnston had already completed his 10-year term for aggravated burglary.
- The court issued a nunc pro tunc amended entry removing references to post-release control for the aggravated-burglary count; Johnston appealed the denial of his motion to set a resentencing hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-July 11, 2006 sentences are void in whole for improper post-release control (effect of Singleton vs Fischer) | State: post-release-control error renders only that portion void per Fischer | Johnston: relies on Singleton — whole sentence void, entitling him to de novo resentencing | Court: Fischer controls; only post-release-control portion is void; no de novo resentencing for other aspects |
| Whether trial court erred by not specifying sequence of multiple concurrent/consecutive sentences (due process) | State: no reversible error where burglary was merged and sentences were concurrent | Johnston: lack of journal sequencing implicates due process (cites Kish) | Court: No error — sentences were concurrent and burglary was merged; no due-process defect requiring resentencing |
| Whether trial court exceeded nunc pro tunc authority by removing post-release control references after sentence served | State: Holdcroft allows nunc pro tunc amendment when term already served; resentencing to add PRC is not permitted | Johnston: contends nunc pro tunc was improper and court should resentence to add PRC | Court: Held nunc pro tunc amendment was proper under Holdcroft because Johnston already served the aggravated-burglary term; trial court correctly denied hearing and conveyance |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92, 942 N.E.2d 332 (voidness limited to improperly imposed post-release-control portion of sentence)
- State v. Holdcroft, 137 Ohio St.3d 526, 1 N.E.3d 382 (trial court cannot resentence to add post-release control after the sentence for that offense has been served; nunc pro tunc amendment to vacate PRC is appropriate)
- State v. Singleton, 124 Ohio St.3d 173, 920 N.E.2d 958 (pre-Fischer authority holding a sentence void for failure to impose PRC correctly)