State v. McCrae
2016 Ohio 8182
Ohio Ct. App.2016Background
- Twan McCrae was convicted in 2000 of murder (15 years to life) with a three-year firearm specification and merged weapons-under-disability counts (5 years), all to be served consecutively.
- At sentencing and in the original judgment entry the court stated post-release control was "mandatory up to a maximum of five years."
- McCrae remains incarcerated and filed a motion in June 2016 under R.C. 2967.28 seeking resentencing to vacate a void sentence, arguing post-release control was improperly imposed and asking for a de novo resentencing.
- The State conceded the correct post-release control was an optional term of up to three years (not mandatory five years), but argued only limited resentencing on post-release control was needed, not a full de novo hearing.
- The trial court issued a nunc pro tunc entry changing the sentencing entry to an optional term of up to three years and McCrae appealed, arguing the court should have held a de novo resentencing rather than simply issuing a nunc pro tunc correction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court could correct post-release control via nunc pro tunc without a resentencing hearing | State: nunc pro tunc correction is permissible and harmless here | McCrae: nunc pro tunc was improper; resentencing required | Court: trial court erred to the extent it attempted to correct via nunc pro tunc without a hearing; correction requires a limited resentencing hearing under R.C. 2929.191 |
| Whether McCrae is entitled to a de novo resentencing hearing | State: only limited resentencing on post-release control is required | McCrae: entitled to full de novo resentencing because conviction pre-dates July 11, 2006 | Court: de novo sentencing not required; only the post-release-control portion is subject to correction (Fisher) |
| Scope of resentencing needed | State: limited to post-release control issue | McCrae: broader relief (de novo) | Court: only imposition of correct post-release control may be addressed; remainder of sentence remains valid under res judicata |
| Right to presence at post-release-control hearing | State: hearing may be via video conferencing; limited presence required | McCrae: impliedly seeks in-person resentencing | Court: offender has right to be present but physical presence not strictly required for limited resentencing; video conferencing permitted |
Key Cases Cited
- State v. Fisher, 128 Ohio St.3d 92 (2010) (only the offending portion of a sentence is subject to review and correction; new hearing limited to proper imposition of post-release control)