State v. Ware (Slip Opinion), 141 Ohio St. 3d 160

Shawn Ware pled guilty to two counts of trafficking in crack cocaine: one second-degree felony (10–25g) and one fourth-degree felony (near a juvenile). The state dismissed five other felonies in exchange for the plea.
The second-degree count carried a statutory mandatory prison term; sentencing statutes listed 2–8 years as the authorized terms and required the court to impose "one of" those prison terms as mandatory.
At sentencing the court imposed four years for the second-degree offense (concurrent with 18 months for the fourth-degree), told Ware the second-degree charge carried "mandatory time," but later (at the end of the hearing) said Ware’s attorney "may petition for a judicial release when it’s appropriate."
Ware filed motions for judicial release; the trial court ultimately granted release in 2013 after a hearing, and then explained in a status hearing that it had intended only two of the four years to be mandatory (a supposed "hybrid" sentence).
The state appealed. The court of appeals agreed the entire four-year term was mandatory but remanded for a nunc pro tunc entry to reflect the trial court’s asserted intent that only two years be mandatory. The Supreme Court of Ohio accepted certification to resolve whether a court may impose a unitary mandatory term and lawfully make only part of it discretionary.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a defendant with a statutorily-mandated prison term may later apply for judicial release before expiration of the sentence	Ware: The sentencing entry omitted the word "mandatory" and the court’s later statements show intent to make only part mandatory, so he is eligible for judicial release after the nonmandatory portion	State: The sentence imposed was fully mandatory by statute; judicial release is unavailable for the full term and trial court cannot retroactively render part discretionary	The court held Ware’s four-year term was entirely mandatory under statute; he was ineligible for judicial release
Whether a nunc pro tunc entry may be used to convert an actually imposed mandatory term into a "hybrid" mandatory/discretionary term based on the court’s later-expressed intent	Ware/trial court: Remedial nunc pro tunc can correct the record to reflect the court’s intended hybrid sentence	State: Nunc pro tunc cannot rewrite what the court actually imposed; postjudgment statements cannot create a legally impossible hybrid term	The court held nunc pro tunc cannot be used to alter the sentence imposed; courts cannot lawfully divide a statutorily mandated unitary term into mandatory and discretionary portions

State ex rel. Hattie v. Goldhardt, 69 Ohio St.3d 123 (1994) (judicial release is a privilege, not a constitutional right)
Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1 (1979) (no inherent right to conditional release)
State v. Smith, 42 Ohio St.3d 60 (1989) (suspension of sentence is purely statutory; statutes permitting release must be strictly construed)
State v. Taylor, 113 Ohio St.3d 297 (2007) (mandatory prison terms preclude judicial release)
Colegrove v. Burns, 175 Ohio St. 437 (1964) (courts may impose only sentences provided by statute)
State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158 (1995) (nunc pro tunc entry must reflect what the court actually decided)
State ex rel. Chalfin v. Glick, 172 Ohio St. 249 (1961) (courts cannot reopen final judgments absent statutory authority)
State v. Beasley, 14 Ohio St.3d 74 (1984) (clemency is an executive function; courts lack authority to free defendants outside statutory means)