State v. GautState v. Gaut
Timothy M. Gaut, pro se, PID: 553-917, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, OH 45601-5500 (Defendant-Appellant).
O P I N I O N
MARY JANE TRAPP, J.
{¶1} Timothy M. Gaut appeals from a judgment of the Trumbull County Court of Common Pleas which denied his motion for resentencing. He claims the trial court failed to properly impose postrelease control and therefore he is entitled to be resentenced. We agree, and reverse and remand this matter for further proceedings consistent with this opinion.
{¶2} Procedural History
{¶4} On September 12, 2008, the court held a sentencing hearing, and on September 23, 2008, journalized a sentence entry.1 For each count in counts one through eight, the court imposed a term of life imprisonment with parole eligibility after ten years; for count nine, a term of life imprisonment with parole eligibility after 15 years; for count ten, five years; for count eleven, 18 months; and for each count in counts 12 through 21, two years. The court ordered all sentences to be served concurrently, for an aggregate sentence of life imprisonment with parole eligibility after 15 years. Regarding the postrelease control, the sentence entry states the following:
{¶5} “The Court has further notified the Defendant that postrelease control is mandatory in this case up to a maximum of five (5) years, as well as the consequences for violating conditions of postrelease control imposed by the Parole Board under
{¶7} “The trial court erred in denying the appellant‘s motion for re-sentencing.”
{¶8} Mr. Gaut contends that the trial court failed to properly impose postrelease control because the sentencing entry states that postrelease control is mandatory in this case “up to” a maximum of five years, which implies he is subject to postrelease control for between one and five years, when in fact the mandatory period of postrelease control in his case is a definite term of five years.
{¶9} Whether Postrelease Control is Required
{¶10} The state claims, without citing any case law authority in support, that Mr. Gaut “will never be subject to postrelease control, only parole, if he is ever released from prison.” The state makes this claim presumably because Mr. Gaut was convicted of multiple counts of rape, for which he received multiple (concurrent) terms of life imprisonment, with parole eligibility after 15 years.
{¶11}
{¶12} “(B) Each sentence to a prison term for a felony of the first degree, for a felony of the second degree, for a felony sex offense, or for a felony of the third degree that is not a felony sex offense and in the commission of which the offender caused or threatened to cause physical harm to a person shall include a requirement that the offender be subject to a period of post-release control imposed by the parole board after the offender‘s release from imprisonment. *** Unless reduced by the parole board
{¶13} “(1) For a felony of the first degree or for a felony sex offense, five years[.]”
{¶14} Mr. Gaut was convicted of rape in violation of
{¶15} The fact that Mr. Gaut will be on parole if he is released from prison after serving 15 years of his prison term does not affect his mandatory postrelease control. In State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, the defendant was convicted of two counts of rape and sentenced to two concurrent life terms with parole eligibility after ten years. The trial court failed to properly include the postrelease control in the sentencing entry, in the belief that the defendant was sentenced to a mandatory life sentence for rape, which is an indefinite sentence. The court addressed the question of whether postrelease control is required for such a defendant. In answering the question, the Supreme Court of Ohio focused on the plain language of
{¶16} “After applying the rules of grammar and common usage to
{¶18} Pursuant to McCormick, therefore, Mr. Gaut‘s sentence on his conviction of nine rape charges was required to include a five-year term of postrelease control.
{¶19} Whether Postrelease Control was Properly Imposed
{¶20} The next issue before us concerns whether the trial court properly imposed the postrelease control. The trial court‘s statement that “postrelease is mandatory in this case up to a maximum of five years” implies Mr. Gaut could be subjected to less than five years of postrelease control, when in fact he is required to serve a definite term of five years. Therefore, the court did not properly impose the postrelease control. See State v. O‘Neal, 9th Dist. No. 09CA0045-M, 2010-Ohio-1252, ¶6 (the trial court‘s statement that “postrelease control is mandatory up to a maximum of 5 years” does not conform to the statutory requirement); State v. Ingram, 9th Dist. No. 09CA0020-M, 2009-Ohio-6371, ¶6 (the trial court did not properly notify the defendant when it stated “postrelease control is mandatory in this case up to a maximum of 5 years“); State v. Ericson, 7th Dist. No. 09 MA 109, 2010-Ohio-4315 (statement that the defendant is subject to a postrelease control of “up to five years” is incorrect because it implies the term is not mandatory).
{¶21} Therefore, the trial court failed to properly impose postrelease control on Mr. Gaut in its sentencing entry.
{¶23} Finally, we turn to the issue of proper remedy for improperly imposed postrelease control.
{¶24} In State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, the Supreme Court of Ohio held that when postrelease control is required but not properly included in the sentence, the sentence is “void.” Simpkins, id. at syllabus. Effective July 11, 2006,
{¶25} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Supreme Court of Ohio addressed the effect of
{¶26} “For criminal sentences imposed on and after July 11, 2006, in which a trial court failed to properly impose postrelease control, trial courts shall apply the procedures set forth in
{¶27} In State v. McKinney, 11th Dist. No. 2010-T-0011, 2010-Ohio-6445, ¶29, this court summarized the rules to be gleaned from Singleton as follows:
{¶28} “First, a sentence imposed prior to July 11, 2006, that did not advise a defendant regarding post-release control is void and can only be corrected at a de novo sentencing hearing. Second, such a sentence imposed after the effective date of the statute is not void, but rather is subject to correction pursuant to the procedure set forth in {¶29} Here, because the trial court imposed the sentence after July 11, 2006, the judgment of sentence is not void, but it is incomplete and subject to correction pursuant to the procedure set forth in {¶30} In State v. Masterson, 11th Dist. No. 2009-P-0064, 2010-Ohio-4939, where the trial court improperly imposed the postrelease control after the effective date of {¶31} The assignment of error is sustained. The judgment of the Trumbull County Court of Common Pleas is reversed, and this case is remanded for the limited purpose of resentencing to correct the postrelease control part of Mr. Gaut‘s sentence in accordance with the procedure set forth in TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., concur.
Notes
{¶a}
{¶b} “(A)(1) 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)(c) [first- or second-degree felony, felony sex offense, and third degree felony where offender threatened or caused physical harm] of section 2929.19 of the Revised Code and failed to notify the offender pursuant to that division that the offender will be supervised under section 2967.28 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)(1) of section 2929.14 of the Revised Code, at any time before the offender is released from imprisonment under that term and at a hearing conducted in accordance 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 will be supervised under section 2967.28 of the Revised Code after the offender leaves prison.
{¶c} “***
{¶d} “(C) On and after the effective date of this section, a court that wishes to prepare and issue a correction to a judgment of conviction of a type described in division (A)(1) or (B)(1) of this section shall not issue the correction until after the court has conducted a hearing in accordance with this division. *** The offender has the right to be physically present at the hearing, except that, upon the court‘s own motion or the motion of the offender or the prosecuting attorney, the court may permit the offender to appear at the hearing by video conferencing equipment if available and compatible. *** At the hearing, the offender and the prosecuting attorney may make a statement as to whether the court should issue a correction to the judgment of conviction.”
{¶a} We use the term “nunc pro tunc” because that is the terminology utilized in
{¶b} “If a court prepares and issues a correction to a judgment of conviction as described in division (A)(1) of this section ***, the court shall place upon the journal of the court an entry nunc pro tunc to record the correction to the judgment of conviction ***.”