State v. LeeState v. Lee
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Julia R. Bates, Lucas County Prosecuting Attorney, and Andrew J. Lastra, Assistant Prosecuting Attorney, for appellee.
Johnny Lee, Jr., pro se.
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COSME, J.
{¶ 1} This appeal arises from the filing by the Lucas County Court of Common Pleas of a nunc pro tunc entry attempting to correct its omission of the mandatory term of postrelease control in appellant‘s sentencing order. Because appellant was sentenced before the effective date of
I. BACKGROUND
{¶ 2} Appellant pled guilty to one count of felonious assault, a second degree felony, and was sentenced to seven years of incarceration on September 17, 2003. Appellant was informed of the postrelease control during sentencing pursuant to
{¶ 3} On August 12, 2009, appellant moved for resentencing arguing that the trial court had failed to comply with the statutory sentencing requirements. Without hearing, the trial court filed a nunc pro tunc entry on September 22, 2009, which states only: “Entry should reflect: Post Release Control Notice under
II. PRE-JULY 11, 2006 SENTENCES
{¶ 4} Appellant‘s first assignment of error asks:
{¶ 5} “Whether a nunc pro tunc order can be used to supply the omitted action of ‘mandatory’ postrelease control, Norris v. Schotten, 146 F.3d 314, at: 333-336 (6th Cir. 1998), quoting State v. Gruelich, __ N.E.2d __ (citation omitted). see also: State v. Boswell, 121 Ohio St.3d 575.”
{¶ 7} The state asserts that the nunc pro tunc entry was proper because
{¶ 8} In State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, paragraph two of the syllabus, superseded by statute, State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Supreme Court of Ohio held that the notice of the postrelease control requirement at sentencing is mandatory, and the trial court must also include that notice in its journal entry imposing sentence. The failure to notify a defendant about postrelease control requires reversal of the sentence and a remand for resentencing.
{¶ 9} In State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶ 6, certiorari denied (2008), ___ U.S. ___, 129 S.Ct. 463, 172 L.Ed.2d 332, superseded by statute on other grounds as stated in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Supreme Court of Ohio stated: “[I]n cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in
{¶ 10} Most recently, in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Supreme Court of Ohio addressed the statutory remedy to correct a failure to properly impose postrelease control. Am.Sub.H.B. No. 137, effective July 11, 2006, amended
{¶ 11} Consistent with Singleton, we find that the trial court‘s nunc pro tunc entry was not adequate to remedy its failure to include the mandatory postrelease control language in the original sentencing order. Accordingly, appellant‘s first assignment of error is well-taken.
III. SENTENCING TRANSCRIPT
{¶ 12} Appellant‘s second assignment of error sets forth the following question:
{¶ 13} “Where the transcript of the proceedings (plea and sentencing) has been destroyed, may a reviewing court accept a belated nunc pro tunc entry which insufficiently seeks to impose a term of * [sic] undefined postrelease control as
{¶ 14} In his second assignment of error, appellant implies that the sentencing transcript has been destroyed, and the unavailability of the transcript would bar the imposition of postrelease control. The record reflects, however, that a transcript of the sentencing proceedings on September 17, 2003, is part of the record through appellant‘s own “Motion for ‘Sentencing” filed with the common pleas court on August 12, 2009. As such, we need not reach the question of whether the unavailability of a transcript would bar the imposition of postrelease control. Appellant‘s second assignment of error is moot.
IV. CONCLUSION
{¶ 15} We hold that for sentences imposed prior to the effective date of
{¶ 16} Here, the trial court failed to notify appellant—in the sentencing entry—of mandatory postrelease control. The nunc pro tunc entry is insufficient to cure the defect in notice. Because appellant was not advised of his mandatory postrelease control in the sentencing entry, the de novo sentencing procedure detailed in the decisions of the Supreme Court of Ohio is the appropriate method to correct appellant‘s criminal sentence which was imposed in 2003.
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, P.J. _______________________________
Keila D. Cosme, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.