2007 Ohio 1545 | Ohio Ct. App. | 2007
{¶ 2} Leonard was convicted in 2002 of aggravated vehicular assault, a felony of the third degree and sentenced on July 26, 2002 to five years in prison. The trial court's judgment entry of sentence did not contain a notice regarding postrelease control. *2
{¶ 3} On September 5, 2006, the trial court entered a nunc pro tunc judgment entry of sentence. This latter judgment entry again imposed a five-year prison sentence and did contain a notice that Leonard would be on postrelease control for three years. Leonard asserts that the trial court was without authority to resentence him, raising the following single assignment of error:
{¶ 4} "The trial erred when it re-sentenced appellant following the decision of Hernandez v. Kelly."
{¶ 5} In this assignment of error, Leonard is relying on the decision from the Supreme Court of Ohio in the case of Hernandez v.Kelly.1 In that decision, that court held that the Ohio Adult Parole Authority may not impose postrelease control unless the trial court notified the defendant at his sentencing hearing that he would be subject to postrelease control and incorporated postrelease control into its sentencing order.2
{¶ 6} Leonard argues that a trial court has authority to correct a sentence only in connection with a direct appeal; that allowing the trial court to correct a sentence in the absence of a direct appeal undermines the sentencing statutes; that res judicata bars the trial court from initiating a correction to a previous judgment entry; and that a sentence, newly imposed so close to his stated prison term, violates Leonard's "expectation of finality" and triggers double jeopardy and due process concerns.
{¶ 7} However, Leonard's argument ignores the statutory enactments that permit the trial court to enter a nunc pro tunc judgment entry to correct a previous sentencing order that omitted the notice regarding postrelease control. *3
{¶ 8} Specifically, R.C.
{¶ 9} R.C.
{¶ 10} "Section
{¶ 11} We note that Leonard's conviction was for a third-degree felony offense where he caused physical harm to another person.
{¶ 12} R.C.
{¶ 13} "If, prior to the effective date of this section [July 11, 2006], a court imposed a sentence including a prison term of a type described in division (B)(3)(c) of section
{¶ 14} We note that the trial court did conduct a hearing in accordance with R.C.
{¶ 15} R.C.
{¶ 16} "The court's placement upon the journal of the entry nunc pro tunc before the offender is released from imprisonment under the term shall be considered, and shall have the same effect, as if the court at the time of original sentencing had included the statement in the sentence and the judgment of conviction entered on the journal and had notified the offender pursuant to division (B)(3)(e) of section
{¶ 17} Division (C) of R.C.
{¶ 19} Leonard does not challenge the validity of those statutory enactments.
{¶ 20} "It is well settled that legislation enjoys a presumption of constitutionality.4 A statute will be given a constitutional interpretation if one is reasonably available.5 The constitutional presumption remains unless it is proven beyond a reasonable doubt that the legislation is unconstitutional.6 "7
{¶ 21} Thus, the trial court had the requisite authority to resentence Leonard and to notify him that he would be on postrelease control for three years.
{¶ 22} The assignment of error is without merit.
{¶ 23} The judgment entry of the trial court is affirmed.
DIANE V. GRENDELL, J., MARY JANE TRAPP, J., concur.