State v. HarrisonState v. Harrison
Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant
O P I N I O N
POWELL, J.
{¶1} Defendant-appellant, Samuel Lee Harrison, appeals his sentence by arguing that the Butler County Court of Common Pleas committed errors when it imposed a fine, notified him of postrelease control, and held a second sentencing hearing after an appeal was filed.
{¶2} Appellant pled guilty in 2009 to the first-degree felony offense of
{¶3} Appellant filed an appeal. In December 2009, the trial court brought appellant back and held a second sentencing hearing, wherein the trial court again informed appellant that he was subject to a mandatory five years of postrelease control, and re-imposed his prison term and financial sanction. The trial court issued a judgment entry as a result of the second sentencing hearing, which was captioned as a “RE-SENTENCING ENTRY,” and in which it stated that appellant was subject to “mandatory” postrelease control “up to a maximum of five (5) years.”
{¶4} Appellant filed a second appeal, challenging the resentencing. Both cases were consolidated for purposes of appeal. Appellant presents three assignments of error for our review. For ease of discussion, we address some of appellant‘s assignments of error out of order.
{¶5} Assignment of Error No. 2:
{¶6} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT IMPOSED A FINE IN THE AMOUNT OF $10,000 UPON APPELLANT.”
{¶7} Appellant argues that the record does not support the trial court‘s determination that he possessed the present and future ability to pay the fine and the trial court abused its discretion in imposing that financial sanction.
{¶9} Compliance with
{¶10} The record in the case at bar indicates that appellant was found to be indigent for purposes of obtaining appointed counsel. A determination that a criminal defendant is indigent for purposes of receiving appointed counsel does not prohibit the trial court from imposing a financial sanction. See State v. Rice, Butler App. No. CA2006-04-091, 2007-Ohio-1367, ¶7 (ability to pay a fine over a period of time is not equivalent to ability to pay legal counsel a retainer fee at the onset of criminal proceedings); cf. State v. Gipson, 80 Ohio St.3d 626, 1998-Ohio-659.
{¶11} The trial court stated at the hearing and in the judgment entry that it reviewed appellant‘s PSI, and considered appellant‘s resources and his present and future ability to pay financial sanctions. We have reviewed the PSI and further note
{¶12} We are aware that appellant‘s criminal history may have some bearing on his future ability to gain employment, but we find nothing in the record indicating any health or other issues that would prohibit appellant, who was 26 years of age, from obtaining employment upon his release from prison. See State v. Collier, 184 Ohio App.3d 247, 252-253, 2009-Ohio-4652.
{¶13} Accordingly, the record lacks clear and convincing evidence that the fine imposed on appellant is contrary to law and, no indication that the trial court abused its discretion in imposing it. Cf. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. Appellant‘s second assignment of error is overruled.
{¶14} Assignment of Error No. 1:
{¶15} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN IMPOSING A SENTENCE WHICH WAS CONTRARY TO LAW AND VOID.”
{¶16} Appellant argues that the trial court failed to provide accurate notification of postrelease control in the judgment entry and, therefore, his case should be remanded for resentencing.
{¶17} As we previously noted, the trial court correctly notified appellant at the sentencing hearing that he was subject to a mandatory term of five years postrelease control and the consequences of a violation. However, the judgment entry incorrectly indicated an optional term of up to three years.
{¶18}
{¶19} We are aware that this court previously remanded cases for resentencing under the same or similar circumstances as presented here. See, e.g., State v. Stevens, Butler App. No. CA2009-01-031, 2009-Ohio-6045 (correctly told of mandatory five years postrelease control at hearing, but entry indicated optional three years); State v. Addis, Brown App. No. CA2009-05-019, 2010-Ohio-1008 (correctly told of mandatory five years postrelease control at hearing, but entry indicated “up to” a maximum of five years; remanded for
{¶20} However, this court will rely on the trend we perceive in more recent Supreme Court cases to find that under these facts – where proper notification was given and the judgment entry is not silent, but is an inaccurate reflection of the notification – a resentencing hearing is not necessary. Cf. State ex rel. Pruitt v. Cuyahoga Cty. Court of Common Pleas, Slip Opinion No. 2010-Ohio-1808, citing Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082 (habeas corpus not available when sentencing entries, while incorrect, are sufficient to afford notice to a
{¶21} See Singleton, 2009-Ohio-6434 at ¶23 (
{¶22} We do not find that the factual situation presented by the instant case requires a
{¶24} 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);
{¶25} Therefore, we overrule appellant‘s second assignment of error to the extent that we do not find the sentence is void and requires resentencing. However, we recognize the clerical error in the original entry and will remand this cause to the trial court with instructions to correct the entry to conform to the sentence pronounced at the sentencing hearing, to wit: a mandatory postrelease control term of five years. State v. Sneed, Cuyahoga App. No. 91414, 2008-Ohio-5247; see State v. Hollingsworth, Franklin App. Nos. 07AP-863, 07AP-864, 07AP-865, 2008-Ohio-2424; see
{¶26} Assignment of Error No. 3:
{¶27} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
{¶28} Under this assignment of error, appellant argues that the trial court was without jurisdiction to hold a second sentencing hearing after he had filed an appeal and, as a result, the second judgment entry should be vacated as void.
{¶29} Under the circumstances presented in this case, we agree with appellant‘s argument. As we previously noted, appellant had already filed his first appeal when the trial court brought appellant back and held a second sentencing hearing and issued a resentencing entry.
{¶30} When a case is appealed, the trial court is divested of jurisdiction over matters that are inconsistent with the reviewing court‘s jurisdiction to reverse, modify, or affirm the judgment. See State ex rel. Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252, ¶17; Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141, 146, 1994-Ohio-219; State v. Southerland (Dec. 30, 1999), Butler App. No. CA99-01-013, 1999 WL 1279304.1
{¶31} The trial court in the case at bar was clearly not operating under the assumption that it was simply correcting a clerical error. The trial court brought appellant back to court for a sentencing hearing and resentenced him after an appeal of the judgment had been filed. Cf. Ramsey at ¶23 (by not issuing nunc pro tunc
{¶32} Judgment affirmed in part, reversed in part, and remanded to the trial court to vacate the December 18, 2009, sentencing entry and with instructions to correct the clerical error in the October 20, 2009 sentencing entry, nunc pro tunc, to conform to the mandatory postrelease control term of five years pronounced at the sentencing hearing.
YOUNG, P.J., and HENDRICKSON, J., concur.