2020 Ohio 384
Ohio Ct. App.2020Background
- Trone pleaded guilty in CR-14-587798 to attempted felonious assault (third-degree felony) and received community control; original plea journal entry noted a three-year postrelease-control (PRC) term but no PRC advisement was given at the later probation-violation resentencing.
- After violating community control, Trone was indicted in CR-15-598790 on two escape counts; at plea and sentencing for the escapes he was verbally told PRC could be up to three years, but the sentencing journal entry mistakenly stated five years mandatory.
- The trial court, after finding the new escape convictions, revoked community control in the original case and imposed a 12-month prison term; the related journal entry also incorrectly stated five years mandatory PRC.
- Trone served his sentences and was released on PRC in January 2017. In Feb 2019 he moved to vacate/terminate the PRC terms, arguing the trial court improperly imposed them and could not correct errors after his release.
- The trial court denied relief in CR-14-587798 and issued a nunc pro tunc entry in CR-15-598790 changing the entry to three years but still (incorrectly) labelled the term mandatory; on appeal this court reversed and released Trone from PRC in both cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sentencing at the probation-violation hearing in CR-14-587798 validly imposed PRC when no PRC advisement was given at that hearing | State: PRC was discussed at earlier proceedings and journal entry lists PRC; nunc pro tunc or denial is appropriate | Trone: No PRC advisement at the violation sentencing; sentence is contrary to law and cannot be corrected after he served the term | Court: Vacated PRC in CR-14-587798 — sentence void because no oral advisement at the violation sentencing and resentencing cannot occur after release |
| Whether the trial court could correct the clerical PRC error in CR-15-598790 by nunc pro tunc after Trone completed his prison term | State: Clerical error; nunc pro tunc may correct journal entry to reflect what occurred at sentencing | Trone: Correction after release is impermissible under R.C. 2929.191 and precedent; PRC portion is void | Court: Trial court could not validly correct the PRC after release; the PRC portion is void and nunc pro tunc entry (which still misstated mandatory vs discretionary) was improper |
| Whether Trone could appeal the nunc pro tunc entry in CR-15-598790 despite not moving below and despite nunc pro tunc relating back | State: No proper order to appeal; appeal time not extended by nunc pro tunc | Trone: State opened the issue and the PRC order is void and reviewable at any time | Court: Allowed appeal — sentence void as to PRC is reviewable and state’s actions opened the door; appellate review permitted |
Key Cases Cited
- State v. Grimes, 85 N.E.3d 700 (Ohio 2017) (trial court must notify defendant at sentencing whether PRC is discretionary or mandatory, the term length, and consequences; notices must appear in the journal)
- State v. Qualls, 967 N.E.2d 718 (Ohio 2012) (after completion of the prison term, offender cannot be resentenced to cure defective PRC imposition)
- State v. Jordan, 817 N.E.2d 864 (Ohio 2004) (sentence imposed without oral PRC notification at sentencing is contrary to law and must be vacated and remanded)
- State v. Fischer, 942 N.E.2d 332 (Ohio 2010) (a sentence that omits the statutorily mandated PRC term is void and may be attacked at any time)
- State v. Billiter, 980 N.E.2d 960 (Ohio 2012) (stating an incorrect PRC length renders that portion of the sentence void)