State v. Mundy
2016 Ohio 4685
Ohio Ct. App.2016Background
- In 2004 Raymont Mundy was convicted of multiple felonies (including felonious assault and drug trafficking) and sentenced to 13 years in prison; convictions were affirmed on direct appeal.
- Mundy successfully reopened his appeal under App.R. 26(B); this Court vacated the sentence as void for an error in post-release control and ordered resentencing.
- At the 2010 de novo resentencing the trial court again imposed 13 years plus five years of post-release control; the March 18, 2010 entry omitted certain notifications (driver’s license suspension initially omitted but later corrected after Supreme Court mandate).
- On remand after Supreme Court decisions, the trial court imposed a mandatory driver’s license suspension retroactive to the original sentence; that correction was not appealed.
- In 2014 Mundy filed a pro se motion to vacate his 2010 resentencing, alleging (1) the court used a nunc pro tunc entry improperly to correct omissions regarding post-release control and sentence sequencing, and (2) post-release control was improperly imposed after some sentences had expired. The trial court denied relief but issued a nunc pro tunc entry to correct omissions.
- This appeal challenges the trial court’s use of the nunc pro tunc entry and the retroactive imposition of post-release control; the Ninth District affirms.
Issues
| Issue | Plaintiff's Argument (Mundy) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the trial court improperly used a nunc pro tunc entry to add post-release control language omitted from the 2010 sentencing entry | The nunc pro tunc correction exceeded the court's authority and violated due process because the sentencing entry lacked the statutory post-release control warning | The court orally gave the required post-release control warning at the 2010 hearing; omission from the journal entry can be corrected nunc pro tunc | Judgment: Nunc pro tunc correction was proper because the defendant was orally notified at sentencing (Qualls governs) |
| Whether failure to discuss R.C. 2929.141(A)(1) at sentencing rendered the sentence void | The sentencing did not include R.C. 2929.141(A)(1) and so the nunc pro tunc could not cure the omission | R.C. 2929.141(A)(1) is not a mandatory notification statute; failure to raise it on direct appeal bars reconsideration | Judgment: Omission of R.C. 2929.141 does not render sentence void; claim barred by res judicata |
| Whether the trial court improperly used a nunc pro tunc entry to state the sequence/order of consecutive sentences | The court failed to set the sequence at resentencing; nunc pro tunc entry changed what was decided | State: No requirement to list order; statutes/rules govern sequence; the 2010 entry already reflected the order (indictment order) | Judgment: Nunc pro tunc merely reiterated the previously decided order and was not improper |
| Whether imposing post-release control via a 2014 nunc pro tunc entry was invalid because some sentences had expired by then | Post-release control was imposed in 2014 after Mundy had served many years; thus it was untimely and unconstitutional | Nunc pro tunc has retrospective effect to the 2010 entry; Mundy failed to show any sentence was completed before the 2010 imposition | Judgment: No error — nunc pro tunc applied retroactively to the March 18, 2010 judgment; Mundy did not prove any sentence had been completed by that time |
Key Cases Cited
- State v. Qualls, 131 Ohio St.3d 499 (2012) (when defendant is orally notified of post-release control at sentencing but the journal entry omits the notification, omission may be corrected by nunc pro tunc)
- State v. Lester, 130 Ohio St.3d 303 (2011) (nunc pro tunc entries operate retrospectively to correct judgments)
- State v. Harris, 132 Ohio St.3d 318 (2012) (trial court must include mandatory driver’s license suspension in sentence; omission renders that part void)
- State v. Mundy, 132 Ohio St.3d 128 (2012) (Supreme Court decision addressing the driver’s license suspension issue in Mundy)