State v. ClarkState v. Clark
For Plaintiff-Appellee
JOHN D. FERRERO Stark County Prosecutor
By: RENEE M. WATSON 110 Central Plaza Sоuth Suite 510 Canton, OH 44702-1413
For Defendant-Appellant
BARRY T. WAKSER 200 West Tuscarawas Street Suite 200 Canton, OH 44702
Farmer, J.
{¶1} On January 14, 2008, the Stark County Grand Jury indicted appellant, Cornelius Clark, on one count of robbery in violation of
{¶2} On November 30, 2009, the last day of appellant‘s prison sentence, appellant was returned to court and advised that he was subject to a mandatory three yeаr period of post release control. A nunc pro tunc judgment entry reflecting the mandatory post release control was filed on December 9, 2009, after appellant‘s prison sentence was completed.
{¶3} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:
I
{¶4} “A TRIAL COURT IS WITHOUT AUTHORITY TO ISSUE A CORRECTIVE JUDGMENT ENTRY IMPOSING POST-RELEASE CONTROL ONCE AN OFFENDER HAS COMPLETED HIS SENTENCE.”
I
{¶5} Appellаnt claims the trial court erred in issuing a corrective judgment on post release control after he had completed his sentence. We disagree.
{¶7} Pursuant to
{¶8} (A)(1) ***If, prior to the effective date оf this section, a court imposed a sentence including a prison term of a type described in division (B)(3)(d) of section
2929.19 of the Revised Code and failed to notify the offender pursuant to that division that the offеnder may be supervised under section2967.28 of the Revised Code after the offender leaves prison or to include a statement to that effect in the judgment of conviction entered on the journal or in the sentence pursuant to division (F)(2) of section2929.14 of the Revised Code , at any time before the offender is released from imprisonment under that term and at a hearing conducted in accordanсe with division (C) of this section, the court may prepare and issue a correction to the judgment of conviction that includes in the judgment of conviction the statement that the offender may be supervised under section2967.28 of the Revised Code after the offender leaves prison.{¶9} “(2) If a court prepares and issues a correction to a judgment of conviction as described in division (A)(1) of this section before the offender is released from imprisonment under the prison term the court imposed prior to the effective date of this section, the court shall place upon the journal of thе court an entry nunc pro tunc to record the correction to the judgment of conviction and shall provide a copy of the entry to the offender or, if the offender is nоt physically present at the hearing, shall send a
copy of the entry to the department of rehabilitation and correction for delivery to the offender.***”
{¶10} Our brethren from the Twelfth District in State v. Harrison, Butler App. Nos. CA2009-10-272 and CA2010-01-019, 2010-Ohio-2709, reviewed a similar fact pattern as the case sub judice: the defendant was advised during his sentencing hearing that post release control was mandatory, but the judgment entry incorrectly listed post release control as optional. The Harrison court explained the following at ¶22-24:
{¶11} “We do not find that the factual situation presented by the instant case requires a
R.C. 2929.191 hearing because apрellant was properly notified of his postrelease control obligations at the 2009 sentencing hearing. The judgment entry did not reflect the notification that appellant received and, therefore, we find that the error in the original entry was clerical. See State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 856 N.E.2d 263, 2006-Ohio-5795, ¶19 (term clerical mistake refers to a mistake or omission, mechanical in nature and apparent on the record, which does not involve a legal decision or judgment).{¶12} “A nunc pro tunc entry is the appropriate remedy to correct a clerical mistakе. State v. Battle, Summit App. No. 23404, 2007-Ohio-2475; State v. Gruelich (1988), 61 Ohio App.3d 22, 24-25, 572 N.E.2d 132. A nunc pro tunc entry or order is limited to memorializing what the trial court actually did at an earlier point in time, such as correcting a previously issued order that fails to reflect thе trial court‘s true action. State v. Spears, Cuyahoga App. No. 94089, 2010-Ohio-2229, ¶10.
{¶13} “A nunc pro tunc entry may be used to correct a sentencing entry to reflect the sentence the trial court imposed upon a defendant at a sentencing hearing. Battle at ¶6 (generally, nunc pro tunc entry relates back to the date of the journal entry it corrects); Crim.R. 36 (trial court may correct clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission***at any time).”
{¶14} Appellant‘s plea of guilty entry contains the following language:
{¶15} “I have been advised by my attorney and the Court that in addition to my sentence, a period of control or supervision by the Adult Parole Authority after my release from prison is optional in this case. The control period may be a maximum term of three years. A violation of аny post-release control rule or condition can result in a more restrictive sanction while released, as increased duration of supervision or control, up to the maximum set out above and/or re-imprisonment even though I have served the entire stated prison sentence imposed upon me by this Court for all offenses set out above.”
{¶16} During the рlea colloquy on February 27, 2008, the trial court correctly informed appellant about mandatory post release control:
{¶17} “THE COURT: Felony three. And it is a crime of violencе. If there‘s physical threat or physical harm, it‘s a mandatory three years post-release controls. Do you understand that?
{¶18} “DEFENDANT CLARK: Yep, sir, I do.
{¶19} “THE COURT: If you don‘t do what the board tells you to do, the board can do any of the following: They can make your conditions tougher or they can impose
up to one year of incarceration, you can serve it locally or baсk in the institution. But if you‘re on post-release controls and you commit a new felony, when you go before the new Judge on your new case, in addition to sentencing you on that, the new Judge can add 12 months or the balance of time you have on post, whichever is longer, and then they can run that consecutively to your new felony. Do you understand that? {¶20} “DEFENDANT CLARK: Yes.” T. at 9-10.
{¶21} The trial court‘s оriginal sentencing entry filed March 6, 2008 states the following:
{¶22} “The Court has further notified the defendant that post release control is optional in this case up to a maximum of three (3) years, as well as the consequences for violating conditions of post release control imposed by the Parole Board under Revised Code Section
2967.28 .”
{¶23} The judgment entry nunc prо tunc filed December 9, 2009 states the following:
{¶24} ”The Court has further notified the defendant that post release control is mandatory in this case for a (sic) of three (3) years, as well as the consequences for violating conditions of post release control imposed by the Parole Board under Revised Code Section
2967.28 .”
{¶25} Following our brethren in the Harrison case, the nunc pro tunc judgment еntry in this case was to correct a clerical mistake. As the facts point out, the original judgment entry did not reflect the actual sentence, mandatory post realeasе control as opposed to optional. The second judgment entry corrected the clerical error and is a nunc pro tunc entry in the purest sense.
{¶27} The sole assignment of error is denied.
{¶28} The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed.
By Farmer, J.
Delaney, J. concur and
Hofffman, P.J. dissents.
_s/ Sheila G. Farmer__________________
_s/ Patricia A. Delaney_______________
___________________________________
JUDGES
SGF/sg 909
Hoffman, P.J. dissenting
{¶29} I respectfully dissent from the majority opinion.
{¶30} Unlike the majority, I do not find the Harrison case persuasive. It is worthy of note, in Harrison, the corrective nunc pro tunc entry was issued before Appellant‘s release from prison. That differs from the scenario presented in this appeal.
{¶31} I believe
{¶32} Accordingly, I would sustain Appellant‘s assignment of error.
________________________________
HON. WILLIAM B. HOFFMAN
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to appellant.
_s/ Sheila G. Farmer__________________
_s/ Patricia A. Delaney_______________
___________________________________
JUDGES