2018 Ohio 1076
Ohio Ct. App.2018Background
- In 2008 Persinger was convicted of four counts of unlawful sexual conduct with a minor and received an aggregate 20-year prison term.
- Persinger pursued multiple post-conviction, habeas, and sentencing-relief efforts over years; those efforts were largely unsuccessful.
- In 2017 he filed motions to arrest judgment and to vacate a void judgment, alleging improper imposition/notification of post-release control (PRC).
- The trial court overruled both motions; Persinger appealed contending the PRC language in the sentencing entry violated due process.
- The original October 17, 2008 sentencing entry stated PRC was “mandatory in this case up to a maximum of (5) years,” using the phrase “up to,” which the parties and court agreed misstated the mandatory five-year duration.
- The appellate court held that oral advisements are presumed correct in the absence of a transcript but the journal entry must be corrected; remanded for a nunc pro tunc entry stating a five-year mandatory PRC rather than “up to” five years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sentencing entry’s PRC language rendered the judgment void and required vacatur or a new sentencing hearing | State conceded the entry’s phrase “up to” misstates duration but argued the defendant received proper oral notice and a nunc pro tunc correction suffices | Persinger argued the improper PRC language made the judgment void and required vacatur (relief from sentence) | Court held oral advisements are presumed correct absent transcript; the journal entry misstated duration and must be corrected by nunc pro tunc entry to reflect a mandatory five-year PRC; no new sentencing hearing needed |
Key Cases Cited
- State v. Qualls, 967 N.E.2d 718 (Ohio 2012) (trial court must give statutorily compliant PRC notice at sentencing and incorporate it in the entry)
- State v. Grimes, 85 N.E.3d 700 (Ohio 2017) (sentencing entry must state whether PRC is discretionary or mandatory, its duration, and that APA will administer PRC and consequences for violations)
- Natl. City Bank v. Beyer, 729 N.E.2d 711 (Ohio 2000) (presumption that undocumented oral proceedings were conducted properly when transcript is absent)