STATE OF OHIO, Plаintiff-Appellee, v. ELVIS ADKINS, Defendant-Appellant.
Case No. 14CA29
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
RELEASED: 7/8/2015
[Cite as State v. Adkins, 2015-Ohio-2830.]
APPEARANCES:
David A. Sams, West Jefferson, Ohio, for appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Robert C. Anderson, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee.
Per Curiam
{¶1} Elvis Adkins once again appeals his sentence, this time after our partial reversal and remand due to the trial court‘s failure to give the proper statutory notification under
{¶2} Adkins also contends the entry of sentence upon remand fails to satisfy the formal requirements for a final judgment under
I. FACTS
{¶3} A jury convicted Elvis Adkins of one count of complicity to the illegal manufacture of drugs, a second degree felony, and the trial court sentenced him to seven years in prison. On appeal he raised a number of assignments of error, but we sustained only one. We found that although the record showed that the trial court notified Adkins about postrelease control in its sentencing entry, it was also statutorily required by
{¶4} On remand the trial court held a resentencing hearing where Adkins appeared with counsel. The trial court advised him that he was subject to postrelease control for three years and that the parole board may impose a prison term of up to one half of the original imposed prison term if Adkins violated postrelease control. This appeal followed.
{¶6} After independently reviewing the record, we disagreed with counsel‘s assessment. Although the transcript of the resentencing hearing showed that the trial court advised Adkins about postrelease control and some of the potential consequences for violating his postrelease control conditions, it did not issue a proper judgment of conviction under
II. ASSIGNMENTS OF ERROR
{¶7} Adkins raises the following assignments of error:
- THE TRIAL COURT ERRED IN NOT INFORMING THE DEFENDANT-APPELLANT OF POST-RELEASE-CONTROL AND ITS RAMIFICATIONS.
- THE TRIAL COURT ERRED IN ISSUING AN ‘AMENDED SENTENCING ENTRY’ AFTER A HEARING UPON REMAND TO CORRECT THE IMPOSITION OF POST-RELEASE-CONTROL, WHICH ENTRY WAS NOT A FINAL, APPEALABLE ORDER.
III. LAW AND ANALYSIS
{¶9} Under
R.C. 2929.191 provides that trial courts may, after conducting a hearing with notice to the offender, the prosecuting attorney, and the Department of Rehabilitation and Correction, correct an original judgment of conviction by placing on the journal of the court a nunc pro tunc entry that includes a statement that the offender will be supervised underR.C. 2967.28 after the offender leaves рrison and that the parole board may impose a prison term of up to one-half of the stated prison term originally imposed if the offender violates postrelease control.
State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶23.
R.C. 2929.141(A)(1) Also Apply?
{¶10} Adkins argues that as part of the trial court‘s compliance with statutory notice provisions addressing violations of postrelease control supervision, the trial court should have informed him about possible sanctions under
{¶11} However, neither Bonnell nor Sarkozy concern postrelease control notification requirеments of the sentencing hearing. In Bonnell, the Court held that, in order to impose consecutive terms of imprisonment, the trial court is required to make statutory findings to support the imposition of consecutive sentences at the sentencing hearing. In Sarkozy, the Court held that a defendant may dispute the knowing, intelligent, and voluntary nature of the plea where the trial court fails during the plea colloquy to advise the defendant that the sentence will include a mandatory term of postrelease control. In nеither case did the Court address whether the trial court must include an admonition concerning the potential imposition of consecutive sentences under
{¶13} Under the relevant sections of
(B)(2)(c) Notify the offender that the offender will be supervised under
section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentence for a felony of the first degree or second degree * * ** * *
(B)(2)(е) Notify the offender that, if a period of supervision is imposed following the offender‘s release from prison, as described in division (B)(2)(c) or (d) of this section, and if the offender violates that supervision or a condition of post-release control imposed under division (B) of
section 2967.131 of the Revised Code , the parole board may impose a prison term, as part of the sentence, of up to one-half of the stated prison term originally imposed upon the offender. * * *
The transcript of the resentencing hearing shows that the trial court gave Adkins the notification under
{¶14} Moreover, we are cognizant that a number of other appellate districts have considered whether the postrelease control notification of
{¶15} One other appellate district has stated in dicta that a trial court must inform an offender at the time of sentencing that the commission of a felony during a period of postrelease control permits a trial court to impose a new prison term for the violation to be served consecutively with any prison term for the new felony. See State v. McDowell, 9th Dist. Summit App. No. 26697, 2014-Ohio-3900, ¶13-15 (“As a procedural protection, courts must infоrm the offender that this consequence [consecutive prison terms under
{¶16} We acknowledge that our decision in Pippen could arguably be viewed as placing additional, extra-statutory notification requirements on trial courts that go beyond the requirements set forth in the plain language of
“[A]n apрellate court ‘not only has the right, but is entrusted with the duty to examine its former decisions and, when reconciliation is impossible, to discard its former errors.‘” State v. Burton, Franklin App. No. 06AP–690, 2007-Ohio-1941, 2007 WL 1196579, at ¶ 22, quoting Galatis at ¶ 44. However, “‘any departure from the doctrine of stare decisis demands special justification.‘” Id. at ¶ 44, quoting Wampler v. Higgins (2001), 93 Ohio St.3d 111, 120, 752 N.E.2d 962. The Supreme Court defined what constitutes “special justification” in its decision in Galatis: “[I]n Ohio, a prior decision of the Supreme Court may be overruled where (1) the decision was wrongly decided at that time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it.” Id. at ¶ 48; see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, fn. 7 (noting that courts must adhere to prior precedent unless the Galatis elements have been satisfied); Burton at ¶ 22 (applying the Galatis test).
{¶17} Here, there is insufficient justification to overrule Pippen. First, although a number of appellate districts have held otherwise, we cannot definitively conclude that Pippen was incorrectly decided. Our analysis in Pippen relied on the Supreme Court of
For the Kidnapping offense only, the Court notified the Defendant that upon his release from prison, if such event should ever happen, the Defendant shall be subject to a five year mandatory period of post-release control, by the Parole Board. The Court further advised the Defendant that if he violates any condition of any post-release control sanctions by committing a new felony, the sentencing Court for that felony may terminate the period of post-release control and impose a prison term for that violation, the maximum of which shall be the greater of twelve months or the period of post-release cоntrol for the earlier felony minus any time the Defendant has spent under post-release control for the earlier felony.
The Defendant was further advised that if he should be released from prison and after his release he should violate the terms and conditions of Post Release Control, the Adult Parole Authority could send him back to prison for up to nine (9) months, and for repeated violations for a term not to exceed 50% of the original term as Ordered by this Court. He was further advised that if the violаtion is a new felony, he could not only be sent to prison for the new felony, but that the sentencing Court could add [run consecutively] to that sentence the greater of one year or the balance of the time remaining on Post Release Control.
(Emphasis and brackets added). Id. at ¶33. The nunc pro tunc entry corrected the prior entry to include a recitation of the oral notification given Qualls at the original sentencing hearing, which included notification of the penalties under
{¶18} Based upon the language used in the decision in Qualls, we conclude that the notification the trial court gave Qualls at the sentencing hearing, which included notification concerning the penalties in
{¶19} Nor can we say that Pippen “defies practical workability.” As the 9th District stated in McDowell, supra, notification of the penalties for a new felony under
{¶20} Because the trial court did not include the notification of the penalties under
B. Amended Sentencing Entry
{¶21} Adkins argues that the amended sentencing entry is not a final appealable order under
{¶22} We agree. The trial court‘s amended sentencing entry does not comply with
“Only one document cаn constitute a final appealable order.” Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, at ¶ 17. This holding became known as Baker‘s “one-document rule,” which requires that
Crim.R. 32(C) ‘s four elements be recorded in one document to constitute a final, appealable order underR.C. 2505.02 .
State v. Stults, 195 Ohio App.3d 488, 2011-Ohio-4328, 960 N.E.2d 1015, ¶13 (3rd Dist.).
{¶23} The amended sentencing entry states that the matter came before the trial court on remand pursuant to our decision and judgment entry dated July 23, 2014, in which we determined that the trial court failed to notify Adkins at his sentencing hearing about postrelease control or the potential consequences for violating postrelease control. The trial court‘s entry further states that the trial court has informed Adkins about postrelease control and includes a partially detailed notification.
{¶24} Although the trial court‘s entry expressly provides the postrelease control notification, it does not include language of the original sentencing entry. See State v. Hawk, 4th Dist. Athens App. No. 10CA50, 2011-Ohio-4577, ¶13. Instead, it states:
The Court further hereby reaffirms and incorporates herein all of the other orders set forth in the Judgment Entry sentencing defendant filed on Octobеr 9, 2013.
Amended Judgment Entry, p. 2, August 13, 2014. Thus, the amended sentencing entry does not comply with
{¶25} Although the trial court‘s amended sentencing entry fails to constitute a proper judgment of conviction under
{¶26} Accordingly, we sustain Adkins‘s second assignment of error to the extent he argues that a new entry should be issued to comply with the requirements of
III. CONCLUSION
{¶27} The trial court failed to notify Adkins of the possible consequences of violating postrelease control under
JUDGMENT REVERSED AND CAUSE REMANDED.
{¶28} I did not participate in Pippen, and had I done so, I would have dissented. Moreover, I conclude the 8th District‘s position in State v. Bybee, 2015-Ohio-878, 28 N.E.3d 149 (8th Dist.) is correct and therefore dissent here on the first assignment of error.
{¶29} In reading
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily cоntinued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Hoover, P.J. & McFarland, A.J.: Concur in Judgment and Opinion. Harsha, J.: Concurs in part and Dissents in part with Opinion.
For the Court
BY: _________________________
Marie Hoover, Presiding Judge
BY: __________________________
Matthew W. McFarland, Judge
BY: __________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.