2007 Ohio 6850 | Ohio Ct. App. | 2007
Lead Opinion
{¶ 2} On December 19, 1997, following a jury trial, appellant was convicted on one count of rape and one count of theft. The trial court sentenced appellant to nine years in prison on the rape conviction, to run concurrently with a sentence of six months in prison on a theft conviction from another case. Appellant's conviction was affirmed by this court on appeal.1
{¶ 3} On October 11, 2006, two days prior to appellant's scheduled release from prison, the state filed a "Motion for Correction of Journal Entry for Judgment of Conviction," asking the court to correct the record pursuant to R.C.
{¶ 4} Over appellant's objection, the trial court notified appellant that at the expiration of his prison term he would be placed on postrelease control for a period of up to five years for the rape conviction. The court further advised appellant that he may be placed on postrelease control for a period of up to three years for the theft conviction, but that it would run concurrent to the other postrelease control. The court did not stay the application of postrelease control pending appeal, and defense counsel advised appellant to follow the terms of postrelease control that would be given to him upon his release.
{¶ 5} Using the procedure provided in R.C.
{¶ 6} "ASSIGNMENT OF ERROR I:
{¶ 7} "THE TRIAL COURT'S ADDITION OF POST-RELEASE CONTROL TO APPELLANT'S ORIGINAL SENTENCE CONSTITUTED A DOUBLE JEOPARDY VIOLATION."
{¶ 8} Appellant asserts that the trial court cannot simply add postrelease control to the original sentence. He argues that double jeopardy requires a trial court to hold a de novo sentencing hearing in order to include postrelease control as part of a defendant's sentence. Appellant further argues that the statute authorizes an impermissible use of a nunc pro tunc entry. *5
{¶ 9} The state argues that the trial court properly followed the procedures outlined in R.C.
{¶ 10} This court recently addressed the exact issue in this case under almost identical facts and vacated the imposition of postrelease control sanctions. See State v. Schneider, Cuyahoga App. No. 89033,
{¶ 11} In State v. Bezak,
{¶ 12} In the instant case, it is not disputed that the trial court failed to properly advise appellant of postrelease control when it sentenced him in December 1997. That sentence is therefore void. The trial court had the authority to correct its void judgment. State v.Beasley (1984),
{¶ 13} The record demonstrates that the trial court followed the statutory requirements in R.C.
{¶ 14} The court's October 12, 2006 sentencing entry is likewise insufficient to impose a valid sentence. "Although courts possess inherent authority to correct *7
clerical errors in judgment entries so that the record speaks the truth, `nunc pro tunc entries' are limited in proper use to reflecting what the court actually decided, not what the court might or should have decided." State ex rel. Cruzado v. Zaleski,
{¶ 15} In light of the Bezak decision and this court's recent decision in Schneider, the trial court's October 12, 2006 order is void. We therefore vacate the sentence imposed by that order. If appellant were still incarcerated, the proper procedure would be to remand the matter for a new sentencing hearing. However, as appellant has already completed his prison sentence, he is not subject to resentencing.Bezak at _18. We therefore remand the matter to the trial court to *8
order the termination of appellant's postrelease control. See State v.Bond, Hamilton App. No. C-060611,
{¶ 16} Appellant's remaining assignments of error need not be addressed because his first assignment is dispositive of the case.3 App.R. 12. *9
{¶ 17} This cause is reversed and remanded for proceedings consistent with this opinion.
It is, therefore, ordered that said appellant recover of said appellee his costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE MARY EILEEN KILBANE, J., CONCURS ANTHONY O. CALABRESE, JR., P.J., DISSENTS *10 WITH SEPARATE OPINION
"ASSIGNMENT OF ERROR II:
"THE TRIAL COURT'S `AFTER-THE-FACT' IMPOSITION OF POST-RELEASE CONTROL VIOLATED R.C.
2929.14 (F) AND R.C.2967.28 ."ASSIGNMENT OF ERROR III:
"THE TRIAL COURT'S IMPOSITION OF POST-RELEASE CONTROL BY VIDEOCONFERENCE VIOLATED CRIM.R. 43(A) AND APPELLANT'S DUE PROCESS RIGHT TO BE PHYSICALLY PRESENT AT EVERY STAGE OF HIS CRIMINAL PROCEEDING.
"ASSIGNMENT OF ERROR IV:
"THE TRIAL COURT'S IMPOSITION OF POST-RELEASE CONTROL BY VIDEOCONFERENCE ONE DAY BEFORE APPELLANT'S RELEASE AFTER SERVING A SEVEN-YEAR PRISON TERM VIOLATED HIS DUE PROCESS RIGHTS.
"ASSIGNMENT OF ERROR V:
"THE TRIAL COURT ERRED IN ADDING POST-RELEASE CONTROL TO APPELLANT'S ORIGINAL SENTENCE AS THE ADDITION WAS PRECLUDED BY THE DOCTRINE OF RES JUDICATA WHEN THE STATE FAILED TO APPEAL THE OMISSION OF POST-RELEASE CONTROL FROM APPELLANT'S ORIGINAL SENTENCE.
"ASSIGNMENT OF ERROR VI:
"APPELLANT WAS DENIED THE RIGHT TO COUNSEL AS PROVIDED BY THE SIXTH AMENDMENT.
"ASSIGNMENT OF ERROR VII:
"AM. SUB. H.B. 137 VIOLATES THE ONE-SUBJECT PROVISION OF THE OHIO CONSTITUTION AND IS THEREFORE UNCONSTITUTIONAL."
Dissenting Opinion
{¶ 18} I respectfully dissent from my learned colleagues in the majority. I believe that there is substantial evidence in the record to support the trial court's decision. I believe the trial court's actions were proper and should be affirmed.
{¶ 19} Accordingly, I would affirm the lower court. *1