STATE OF OHIO v. BRIAN A. JOHNSON
Case No. 16CAA030011
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 23, 2016
2016-Ohio-4617
Hon. Sheila G. Farmer, P.J.; Hon. John W. Wise, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 14 CR 1 01 0019. JUDGMENT: AFFIRMED.
For Plaintiff-Appellee: CAROL O‘BRIEN DELAWARE CO. PROSECUTOR JAHAN KARAMALI 140 N. Sandusky St., 3rd Floor Delaware, OH 43015
For Defendant-Appellant: BRIAN A. JOHNSON, pro se #707-245 Chillicothe Correctional Inst. P.O. Box 5500 Chillicothe, OH 45601
Delaney, J.
{¶1} Appellant Brian A. Johnson appeals from the March 3, 2016 “Judgment Entry Denying the Defendant‘s 3/2/16 Motion for Resentencing” of the Delaware County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case has a lengthy procedural history. A statement of the facts underlying appellant‘s convictions upon two counts of rape is not necessary to our resolution of this appeal.
{¶3} Appellant was charged by indictment upon one count of rape pursuant to
{¶4} At trial, the trial court amended Counts III, IV, VII, and VIII to attempted offenses and appellant was found guilty as charged.
{¶5} At sentencing, the trial court found Counts I, II, V, and VI merge, and Counts III, IV, VII, and VIII merge. The trial court sentenced appellant upon Counts II and IV to an aggregate prison term of 14 years.
{¶6} Appellant directly appealed the convictions and sentence; we affirmed in State v. Brian A. Johnson, 5th Dist. Delaware No. 14CAA070039, 2015-Ohio-1676, appeal not allowed, 43 Ohio St.3d 1501, 2015-Ohio-4468, 39 N.E.3d 1271. Appellant applied to reopen both appeals and the applications were overruled.
{¶7} Appellant filed his first petition for postconviction relief on February 26, 2015 and the trial court denied the petition without a hearing on March 12, 2015. A motion to reconsider was overruled. Appellant appealed from the trial court‘s decision but we dismissed the appeal in State v. Johnson, 5th Dist. Delaware No. 15CAA030027.
{¶8} Appellant filed a second petition for postconviction relief on October 21, 2015, which the trial court overruled the next day. Appellant appealed from that decision in State v. Johnson, 5th Dist. Delaware No. 15 CAA 11 0092, 2016-Ohio-1213. A memorandum in support of jurisdiction is pending before the Ohio Supreme Court in case number 2016-0650.
{¶9} On November 25, 2015, appellant moved for appointment of counsel and the trial court overruled the motion. Appellant appealed the decision in State v. Johnson, 5th Dist. Delaware No. 15 CAA 12 0096 and we dismissed the appeal.
{¶10} Appellant then filed, e.g., a motion to compel and a motion for judicial release, both of which were overruled.
{¶11} On March 3, 2016, appellant filed a motion for resentencing and the trial court overruled the motion in a judgment entry dated March 3, 2016.
{¶12} Appellant now appeals from the March 3, 2016 “Judgment Entry Denying the Defendant‘s 3/2/16 Motion for Resentencing.”
{¶13} Appellant raises two assignments of error:
{¶14} “I. APPELLANT‘S FUNDAMENTAL RIGHT TO ‘DUE PROCESS OF LAW’ AND ‘EQUAL PROTECTION OF THE LAW,’ GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION;
{¶15} “II. APPELLANT‘S FUNDAMENTAL RIGHT TO ‘DUE PROCESS OF LAW,’ EQUAL PROTECTION OF THE LAW,’ AND THE ‘EFFECTIVE ASSISTANCE OF COUNSEL,’ GUARANTEED BY THE FIFTH, SIXTH, AND
ANALYSIS
{¶16} This case comes to us on the accelerated calendar. App.R. 11.1 governs accelerated-calendar cases and states in pertinent part:
(E) Determination and judgment on appeal.
The appeal will be determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the reason for the court‘s decision as to each error to be in brief and conclusionary form. The decision may be by judgment entry in which case it will not be published in any form.
{¶17} One of the most important purposes of the accelerated calendar is to enable an appellate court to render a brief and conclusory decision more quickly than in a case on the regular calendar where the briefs, facts, and legal issues are more complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th Dist.1983).
I.
{¶18} In his first assignment of error, appellant argues the trial court failed to properly advise him his prison sentence is mandatory and therefore we should vacate his sentence. We agree to the extent that the trial court must enter a nunc pro tunc sentencing entry stating the prison terms upon the rape counts are mandatory.
{¶19} Appellant was convicted upon two counts of rape pursuant to
Subject to division (B)(3) of this section, if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:
(a) Impose a stated prison term and, if the court imposes a mandatory prison term, notify the offender that the prison term is a mandatory prison term;
(b) In addition to any other information, include in the sentencing entry the name and section reference to the offense or offenses, the sentence or sentences imposed and whether the sentence or sentences contain mandatory prison terms, if sentences are imposed for multiple counts whether the sentences are to be served concurrently or consecutively, and the name and section reference of any specification or specifications for which sentence is imposed and the sentence or sentences imposed for the specification or specifications[.]
{¶20} Appellee acknowledges the trial court did not explicitly describe the prison terms as “mandatory” at the sentencing hearing.
{¶21} Neither party provided us with the Judgment Entry on Sentence of July 8, 2014. Upon our review of the sentencing entry and of the sentencing hearing, we note the trial court did not state that the prison terms are mandatory. This omission, however, does not render the sentence void.
The failure of the court to notify the offender that a prison term is a mandatory prison term pursuant to division (B)(2)(a) of this section or to include in the sentencing entry any information required by division (B)(2)(b) of this section does not affect the validity of the imposed sentence or sentences. If the sentencing court notifies the offender at the sentencing hearing that a prison term is mandatory but the sentencing entry does not specify that the prison term is mandatory, the court may complete a corrected journal entry and send copies of the corrected entry to the offender and the department of rehabilitation and correction, or, at the request of the state, the court shall complete a corrected journal entry and send copies of the corrected entry to the offender and department of rehabilitation and correction.
{¶22} Appellant argues the error requires us to vacate his sentence and remand to the trial court to permit him to accept appellee‘s pretrial plea offer, but this suggestion is without merit. Several courts have addressed the appropriate remedy under these circumstances: the trial court should issue a nunc pro tunc sentencing entry adding a statement that the prison term is mandatory. See, State v. McFarland, 7th Dist. Mahoning No. 15 MA 17, 2015-Ohio-4839; State v. Benitez-Maranon, 9th Dist. Summit Nos. 26461, 26659, 2014-Ohio-3575; State v. Rasul, 8th Dist. Cuyahoga No. 101625, 2016-Ohio-200, appeal not allowed, 145 Ohio St.3d 1472, 2016-Ohio-3028; see also State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082 [omission of the term “mandatory” is irrelevant because defendant‘s prison term is still mandatory].
{¶23} We therefore remand this matter to the trial court to issue a nunc pro tunc sentencing entry stating that appellant‘s rape sentences are mandatory. Accordingly, appellant‘s first assignment of error has merit only to the extent that the matter will be remanded for a nunc pro tunc sentencing entry. McFarland, supra, 2015-Ohio-4839 at ¶ 27.
II.
{¶24} In his second assignment of error, appellant argues trial counsel was ineffective on a number of bases including failure to advise him of the mandatory nature of the prison term imposed and failure to explain the benefits of entering an Alford plea.
{¶25} The record does not support appellant‘s argument that trial counsel failed to advise him of the mandatory nature of the prison terms or that appellant would have accepted a plea offer under different circumstances. Appellant alleges rejection of a plea offer and a general “failure to object” but relies upon facts outside the record. State v. Coles, 5th Dist. Delaware No. 15CAA010001, 2015-Ohio-4159, 10. Postconviction relief, rather than a direct appeal, is generally the means by which a defendant may bring claims of constitutional violations based upon matters outside the record. Id., citing State v. Kreischer, 5th Dist. Perry No. 01-CA-04, 2002-Ohio-357, 2002 WL 106683, *3 and State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraphs four and nine of the syllabus.
{¶27} A trial court may entertain a late or successive petition for postconviction relief only if a petitioner satisfies the statutory requirements set forth in
{¶28} Appellant‘s second assignment of error is overruled.
{¶29} For the reasons stated above, the trial court‘s judgment is hereby affirmed. The matter is remanded solely for the trial court to issue a nunc pro tunc sentencing entry providing that appellant‘s sentences for rape are mandatory.
By: Delaney, J. and
Farmer, P.J.
Wise, J., concur.