STATE OF OHIO, Plаintiff-Appellee, vs. DERRICK L. HARRIS, Defendant-Appellant.
Case No. 11CA15
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
RELEASED 05/14/12
2012-Ohio-2185
Harsha, J.
DECISION AND JUDGMENT ENTRY
Derrick L. Harris, Chillicothe, Ohio, Appellant pro se.
Judy C. Wolford, Pickaway County Prosecuting Attorney, Circleville, Ohio, for Appellee.
Harsha, J.
{¶1} Derrick L. Harris appeals the trial court‘s decision that denied his motion for de novo sentencing. He contends that he is entitled to a new sentencing hearing because the trial court‘s sentencing entry failed to state that the parole board could impose up to one-half of Harris’ originally-imposed prison term if he violated post-rеlease control. Because the trial court notified Harris at the sentencing hearing that he could be subject to up to one-half of his originally-imposed prison term if he violated post-release control, Harris is not entitled to a new sentencing hearing. However, because the trial court failed to incorporate this mandated language into its sentencing entry, we remand to the trial court for the limited purpose of correcting the sentencing entry. Aсcordingly, we sustain Harris’ assignment of error in limited part and remand to the trial court.
{¶2} On December 20, 2005, the trial court convicted Harris of aggravated robbery with a firearm specification, felonious assault with a firearm specificatiоn, and having a weapon while under a disability. The court sentenced Harris to a total of fifteen years in prison. The court additionally notified Harris that he would be subject to post-release control for five years. Its sentencing entry stаtes: “The Court has further notified the defendant that he will be subject to a period of post-release control of Five (5) years, to be imposed by the Parole Board after his release from imprisonment, as well as the consequences for violating conditions of post release control imposed by the Parole Board under
{¶3} On May 4, 2011, Harris filed a pro se motion for “de novo sentencing.” He argued that he was entitled to resentencing because the trial court‘s sentencing entry failed to specify that the parole board may impose up to one-half of Harris’ originally-imposed prison term if he violates post-release control.
{¶4} The trial court denied Harris’ motion. The court determined that its sentencing entry complied with the applicable statutes, because it informed Harris that he would be subject to post-release control for five years and that he may have to serve “any prison term for violation of that post release control.” The court further noted that it had verbally informed Harris “of the consequences,
II. ASSIGNMENT OF ERROR
{¶5} Harris raises one assignment of error:
“The court erred when it failed to impose post-release control as required by the Ohio Statutes.”
III. ANALYSIS
{¶6} In his sole assignment of error, Harris argues that the trial court erred when it denied his motion for de novo sentencing. He asserts that the cоurt should have conducted a new sentencing hearing, because its original sentencing entry failed to inform Harris that violating his post-release control conditions could result in the imposition of up to one-half of his originally-imposed stаted prison term.
{¶7} Former
{¶8} Herе, no one disputes that the trial court‘s sentencing entry failed to state that the parole board could impose up to one-half of Harris’ originally-imposed prison term if he violated post-release control. The trial court reasoned that it complied with this sentencing entry mandate by stating that Harris would have to serve “any prison term for violation of that post-release control.” However, this is the exact language that the Ohio Supreme Court determined did not comply with the sentencing entry mandate. Ketterer, supra. Consequently, we must likewise conclude that the trial court did not comply with the mandate to incorporate into its sentencing entry a notification that Harris could serve up to one-half оf his originally-imposed prison term for violating post-release control.
{¶9} Although we agree with Harris that the trial court did not comply with the sentencing entry notification regarding the “up to one-half” prison term
{¶10} Accordingly, we sustain Harris’ assignment of error to the limited extent discussed and remand to the trial court so that it may enter a nunc pro tunc entry that incorporates the required language into its sentencing entry.
JUDGMENT REMANDED.
It is ordered that the JUDGMENT 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 Pickaway Cоunty Common Pleas Court 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 continued 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.
Abele, P.J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
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.