State v. Smalls
2013 Ohio 5674
Ohio Ct. App.2013Background
- Smalls was indicted in 1999 on felonious assault with firearm specifications and having weapons under disability; convicted in 2000 on all counts and firearm specs.
- Original sentence in 2000: aggregate 19 years, with specific concurrent/consecutive structuring and three-year firearm spec terms to run concurrently, plus one-year weapon under disability term.
- Smalls filed a direct appeal; appellate court affirmed in 2001.
- In 2008 Smalls moved for resentencing under R.C. 2929.191 alleging missing post-release control; trial court denied.
- In 2009, after a de novo sentencing hearing, the court imposed a five-year post-release control term; a sentencing entry later stated “up to five years.”
- In 2013 Smalls appealed the May 18, 2009 sentencing entry; the appellate court reversed the post-release control portion as improperly stated and remanded for correction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the May 18, 2009 entry correctly stated post-release control. | Smalls argues ‘up to five years’ is an improper clerical error. | State contends the language was harmless or proper under prior cases. | Clerical error; remand for nunc pro tunc correction. |
Key Cases Cited
- State v. Kalish, 120 Ohio St.3d 23 (2008-Ohio-4912) (requires reviewing court to assess compliance with sentencing statutes)
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (voids only the post-release control portion when misstatement occurs)
- State v. Gutierrez, 2011-Ohio-3126 (3rd Dist. Hancock No. 5-10-14) (post-release control remediation under R.C. 2929.191)
- State v. Singleton, 124 Ohio St.3d 173 (2009-Ohio-6434) (guides post-release control rectification framework)
- State v. Miller, 5th Dist. Stark No. 2010CA00175 (2010-Ohio-6001) (earlier harmless-error approach pre-Fischer)
- State v. Adkins, 2011-Ohio-2819 (2nd Dist. Greene No. 2010-CA-69) (rejects harmless-error rationale post-Fischer)
- State ex rel. Womack v. Marsh, 128 Ohio St.3d 303 (2011-Ohio-229) (permits nunc pro tunc correction of clerical errors)
- State v. Harrington, 2nd Dist. Greene No. 06 CA 29 (2007-Ohio-1335) (pre-Fischer precedent on post-release control language)
- State v. Sulek, 2nd Dist. Greene No. 09 CA 75 (2020-Ohio-3919) (pre-Fischer reliance on ‘up to’ language deemed harmless)