State v. JohnsonState v. Johnson
Dated: February 2, 2011
DICKINSON, Presiding Judge.
INTRODUCTION
{¶1} After serving eight years of his fourteen-year prison sentence, Bernard Johnson unsuccessfully moved the trial court to re-sentence him. Due to an error in the imposition of post-release control, this Court vacated his sentence. On remand, the trial court imposed the same sentence, but corrected the post-release control problem. Mr. Johnson, acting pro se, has appealed the new sentence, arguing that the trial court lacked jurisdiction to sentence him eight years after his guilty plea and that the trial court‘s journal entry incorrectly referred to the hearing as a re-sentencing hearing. This Court affirms because the trial court had jurisdiction to correct the void sentence and the trial court did not erroneously refer to the hearing as a re-sentencing hearing.
{¶2} In July 2001, Mr. Johnson pleaded guilty to three counts of rape of a child under the age of thirteen, all first-degree felonies. The trial court sentenced him to ten years in prison on one count and a consecutive four years on the other two to be served concurrently with one another, for a total of fourteen years. Mr. Johnson appealed, and this Court affirmed. State v. Johnson, 9th Dist. No. 20708, 2002-Ohio-1108. In January 2002, while his direct appeal was pending, the trial court denied Mr. Johnson‘s petition for post-conviction relief.
{¶3} In August 2008, Mr. Johnson moved the trial court for re-sentencing and to allow him to withdraw his guilty plea, arguing that the trial court had failed to notify him that he was subject to a mandatory five-year term of post-release control. The trial court denied his motion, and he appealed. This Court held that his sentence was void because the trial court had failed to include a statutorily mandated term of post-release control. State v. Johnson, 9th Dist. No. 24536, 2009-Ohio-3188, at ¶8. This Court vacated his sentence and remanded the matter for the trial court to hold a hearing on Mr. Johnson‘s motion to withdraw his plea. Id.
{¶4} On September 30, 2009, when the trial court held a de novo sentencing hearing for Mr. Johnson, he was represented by a lawyer. On the record, at the beginning of the hearing, Mr. Johnson withdrew his motion to withdraw his guilty plea. The trial court then sentenced him, de novo, to an aggregate term of fourteen years in prison on the three rape charges. The sentences were journalized on November 2, 2009. In the journal entry, the trial court referred to the September 30 hearing as a “re-sentencing hearing.”
JURISDICTION: DELAYED SENTENCING
{¶5} Mr. Johnson‘s second assignment of error is that the trial court violated his due process and equal protection rights by failing to sentence him until more than eight years after
{¶6} “An appellate court need not consider an error which a party complaining of the trial court‘s judgment could have called, but did not call, to the trial court‘s attention at a time when such error could have been avoided or corrected by the trial court.” State v. Williams, 51 Ohio St. 2d 112, paragraph one of the syllabus (1977). In this case, Mr. Johnson forfeited all but plain error by failing to raise this argument before the trial court issued the corrected sentence on September 30, 2009. State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642, at ¶23.
{¶7}
{¶8} In this case, Mr. Johnson had served approximately eight years of a fourteen-year prison term when the trial court corrected his sentence. The trial court retained jurisdiction to correct the void sentence. State ex rel. Cruzado v. Zaleski, 111 Ohio St. 3d 353, 2006-Ohio-5795, at ¶19 (citing State v. Beasley, 14 Ohio St. 3d 74, 75 (1984)). Therefore, Mr. Johnson‘s second assignment of error is overruled.
RE-SENTENCING
{¶9} Mr. Johnson‘s first assignment of error is that the trial court incorrectly referred to his September 30, 2009, sentencing hearing as a “re-sentencing” hearing. According to Mr. Johnson, that is a clerical error in the journal entry that must be corrected under
{¶10} Even if the journal entry contained a clerical error, Mr. Johnson‘s failure to indicate how he was prejudiced by the error would be fatal to his claim since this Court is required to disregard “[a]ny error, defect, irregularity, or variance which does not affect substantial rights . . . .”
{¶11} The Ohio Supreme Court has recently held that even those offenders sentenced before the effective date of
CONCLUSION
{¶12} The trial court had jurisdiction to re-sentence Mr. Johnson after this Court determined that his sentence was void. The trial court correctly referred to the subsequent hearing as a re-sentencing hearing. Mr. Johnson‘s assignments of error are overruled. The judgment of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
CLAIR E. DICKINSON
FOR THE COURT
MOORE, J.
BELFANCE, J.
CONCUR
APPEARANCES:
BERNARD JOHNSON, pro se, appellant.
SHERRI BEVAN WALSH, prosecuting attorney, and RICHARD S. KASAY, assistant prosecuting attorney, for appellee.