STATE OF OHIO, Plаintiff-Appellee v. ANTONIO ALFORD, Defendant-Appellant
C.A. CASE NO. 24368
T.C. NO. 08CR1936
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
August 3, 2012
[Cite as State v. Alford, 2012-Ohio-3490.]
CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 E. Stroop Rd., Kettering, Ohio 45429 Attorney for Defendant-Appellant
OPINION
FROELICH, J.
{¶ 1} Antonio Alford appeals from his resentencing, which was conducted pursuant to our mandate that the trial court merge certain offenses as allied offenses of
{¶ 2} In March 2009, Alford was convicted after a jury trial of two counts of felonious assault, three counts of murder, three counts of having weapons while undеr disability, and one count of tampering with evidence, all with firearm specifications. He was acquitted of discharging of a firearm on or near prohibited premises, along with the firearm specification on that particular count.
{¶ 3} The trial court sentenced Alford to eight yеars for the count of felonious assault in violation of
{¶ 4} On direct appeal, we affirmed Alford‘s convictions, but remanded to the trial court for resentencing on the two felоnious assault counts. State v. Alford, 2d Dist. Montgomery No. 23332, 2010-Ohio-2493. We held that the two felonious assault counts should have been merged as allied offenses of similar import and that the surviving felonious assault offense should have been merged with the murder offense. Id. at ¶ 42.
{¶ 5} Alford was resentenced on November 17, 2010. He acknowledges that, аt
{¶ 6} The following week, the trial court issued a new judgment entry, which included the follоwing language:
The Court notifies the defendant that, as a part of this sentence, on Count 1 FELONIOUS ASSAULT (serious harm) – 2903.11(A)(1) F2 the defendant will be supervised by the Parole Board for а period of Three years Post-Release Control after the defendant‘s release from imprisonment.
(Emphasis sic.) The trial court included similar language for Count 2, the second felonious assault charge.
{¶ 7} Alford appeals from his resentencing. His original appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), wherein counsel represented that, after a thorough examination of the record, he was unable to discоver any errors by the trial court that were prejudicial to Alford. After an independent review of the record, we allowed Alford‘s original сounsel to withdraw and appointed new counsel to address the effect, if any, of the inclusion in the judgment entry of post-release control for guilty verdicts that were merged with another offense. Counsel was also permitted to raise any other appropriate issues.
THE SENTENCE IMPOSED BY THE TRIAL COURT IS VOID AS A MATTER OF LAW DUE TO THE INCORRECT IMPOSITION OF POST-RELEASE CONTROL IN THE TERMINATION ENTRY.
{¶ 9} In his sole assignment of error, Alford claims that the trial court erred in imposing post-releasе control on the two felonious assault counts, both of which were merged with the murder offense. He argues that the imposition of post-release control constituted a partial sentence for those counts and that the improper imposition of post-release control rendered the judgment entry partially void. Alford asks that we remand the matter to the trial court with instructions to correct the termination entry by deleting the two paragraphs imposing post-release control for counts 1 and 2, the felonious assault counts.
{¶ 10} The State responds that Alford‘s assignment of error is moot, because the trial court issued a nunc pro tunc termination entry on March 21, 2012 (after Alford‘s new appellate counsel filed his brief). The nunc pro tunc entry deleted the two paragraphs imposing post-release control on the felonious assault counts. The record reflects that, on February 27, 2012, the State had filed a motion in the trial court requesting the nunc pro tunc judgment entry.
{¶ 11} We disagree with the State‘s contention that the appeal is moot. This Court has repeatedly held that, “[a]lthough a court generally may issue a nunc pro tunc entry any time,1 * * * a notice of appeal divests a trial court of jurisdiction to do so.” (Footnote in
{¶ 12} As we noted in Smith, other appellate districts likewise have recognized that a trial court cannot file a nunc pro tunc entry while a case is pending on appeal. Smith at ¶ 9, citing, e.g., State v. Biondo, 11th Dist. Portage No. 2009-P-0009, 2009-Ohio-7005, ¶ 18; State v. Erlandsen, 3d Dist. Allen No. 1-02-46, 2002-Ohio-4884, n. 1; State v. Rowland, 3d Dist. Hancock No. 5-01-39, 2002-Ohio-1421; and State v. Reid, 6th Dist. Lucas No. L-97-1150, 1998 WL 636789 (Sept. 18, 1998).
{¶ 13} The State did not seek an ordеr from this Court remanding the matter to the trial court so that the trial court could issue a nunc pro tunc entry. Accordingly, the trial court lacked jurisdiction to file a new judgment while this appeal was pending, and the trial court‘s nunc pro tunc entry had no legal effect.
{¶ 14} In its brief, the State acknowledges that “the termination entry does not accurately reflect the sentence imposed at the sentencing hearing.” The State recognizes that the judgment entry imposed post-release control for the felonious assault counts, whereas the trial court properly did not impose post-release control for those counts at sentencing because those offenses were merged into the murder offense.
{¶ 15} Because the trial court‘s nunc pro tunc entry has no legal effect, we conclude
{¶ 16} The trial court‘s judgment regarding post-release control will be reversed, and the matter will be remanded to the trial court to file a new judgment entry, correcting its clerical error by removing the two paragraphs imposing post-release control on counts 1 and 2. Nothing in this opinion prеvents the trial court from filing an identical nunc pro tunc entry to that which was filed on March 21, 2012.
GRADY, P.J. and DONOVAN, J., concur.
Copies mailed to:
Michele D. Phipps
Charles M. Blue
Hon. Barbara P. Gorman