2007 Ohio 1864 | Ohio Ct. App. | 2007
{¶ 2} On September 27, 2004, appellant, Lonny Bristow, pled guilty to assault, in violation of R.C.
{¶ 3} At the time appellant was sentenced, although the trial court's judgment entry states that appellant was given "notice under 2929.19(B)(3)," the judgment did not specifically include a statement that, after serving his sentence, appellant would be supervised on post-release control under R.C.
{¶ 4} Appellant appeals from the entry of the nunc pro tunc judgment, arguing two assignments of error:
{¶ 5} "First Assignment of Error
{¶ 6} "The trial court committed reversible and prejudicial error in issuing a nunc pro tunc sentencing entry to sentence appellant to post-release control as a nunc pro tunc entry cannot be used to make substantial changes in judgments; thereby denying appellant's right to due process under the U.S. Constitution. *3
{¶ 7} "Second Assignment of Error:
{¶ 8} "The trial court committed reversible and prejudicial error in sentencing appellant to post-release control because it was not part of appellant's plea agreement; thereby denying appellant his right to due process under the U.S. Constitution."
{¶ 9} Appellant argues in his first assignment of error that the trial court erred in changing his sentence by using a nunc pro tunc judgment entry. We agree, but for different reasons than those argued by appellant.
{¶ 10} Trial courts retain the authority to correct void sentencing orders, State v. Garretson (2000),
{¶ 11} On June 11, 2006, R.C.
{¶ 12} "If, prior to the effective date of this section, a court imposed a sentence including a prison term of a type described in division (B)(3)(d) of section
{¶ 13} In this case, the record indicates that the trial court did inform appellant at his original sentencing hearing that he would be subject to post release control, but did not specify the duration. In addition, the original judgment entry contains no specific statement indicating that appellant would be subject to post-release control. After R.C.
{¶ 14} Furthermore, under the facts of this case, we conclude that the post-release correction statute was no longer applicable. Although appellant may have remained incarcerated on another conviction, the nunc pro tunc entry was issued approximately 14 months after appellant's six month sentence for the assault conviction had been completed. Consequently, appellant was no longer being held in prison under that charge and the trial court had no authority to correct the initial judgment entry. Therefore, the trial court erred in issuing the June 26, 2006 judgment entry to impose post-release control.
{¶ 15} Accordingly, appellant's first assignment of error is well-taken. His second assignment of error is moot.
{¶ 16} The judgment of the Lucas County Court of Common Pleas is reversed and vacated. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County.
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4. *6
Mark L. Pietrykowski, P.J., JUDGE
Arlene Singer, J., JUDGE
*1William J. Skow, J., JUDGE CONCUR.