State v. MundyState v. Mundy
Dated: December 7, 2009
WHITMORE, Judge.
{¶1} Defendant-Appellant, Raymont Mundy, appeals from his convictions in the Medina County Court of Common Pleas. This Court vacates his sentence.
I
{¶2} On October 27, 2004, Mundy was indicted on two counts of felonious assault on a peace officer in violation of
II
Assignment of Error Number Three
“MUNDY‘S SENTENCE IS VOID.”
{¶3} In his third assignment of error, Mundy argues that his sentence is void because the trial court failed to comply with certain statutory mandates, one of which was the imposition of post-release control.
{¶4}
“(B) Each sentence to a prison term for a felony of the first degree, *** shall include a requirement that the offender be subject to a period of post-release control imposed by the parole board after the offender‘s release from imprisonment. *** [The] period of post-release control *** shall be[,] *** [f]or a felony of the first degree[,] *** five years[.]”
Mundy was convicted of and sentenced for assault on a peace officer, which is a first-degree felony. Therefore, under the terms of
{¶5} “When sentencing a felony offender to a term of imprisonment, a trial court is required to notify the offender at the sentencing hearing about post[-]release control and is further required to incorporate that notice into its journal entry imposing sentence.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, paragraph one of the syllabus. “[A] sentence that does not conform to statutory mandates requiring the imposition of post[-]release control is a nullity and void, [and] it must be vacated.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, at ¶22. Moreover, “where a sentence is void because it does not contain [an accurate post-release control notification,] the proper remedy is *** to resentence the defendant.” Jordan at ¶23. Here, the trial court failed to properly impose post-release control for a definite term of five years as required by statute when it journalized Mundy‘s sentence. Accordingly, Mundy‘s sentence is void and must be vacated. Simpkins at ¶22.
{¶6} When a “journal entry is void because it included a mistake regarding post-release control *** there is no final, appealable order.” State v. Bedford, 9th Dist. No 24431, 2009-Ohio-3972, at ¶11. Accordingly, this Court does not have jurisdiction to consider the merits of Mundy‘s appeal. Id. at ¶14.
Assignment of Error Number One
“MUNDY‘S PRIOR APPELLATE COUNSEL WAS DEFICIENT AND INEFFICTIVE, MUNDY WAS PREJUDICED BY THE DEFICIENCY AND INEFFECTIVENESS, AND AS SUCH THIS COURT SHOULD VACATE ITS
Assignment of Error Number Two
“MUNDY WAS ENTITLED TO A HEARING ON HIS MOTION FOR RE-SENTENCING AND/OR MOTION FOR RECONSIDERATION OF JUDGMENT DENYING THE MOTION.”
{¶7} Because Mundy‘s sentence is void and must be vacated, we lack jurisdiction to consider his two remaining assignment of error. Id.
III
{¶8} Because Mundy‘s sentence is void and must be vacated, we cannot address the merits of his appeal. The judgment of the Medina County Court of Common Pleas is vacated and this cause is remanded for resentencing.
Judgment vacated, and cause remanded.
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 Medina, 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.
BETH WHITMORE
FOR THE COURT
MOORE, P. J. CONCURS
CARR, J. DISSENTS, SAYING:
{¶9} I respectfully dissent. This case highlights the practical drawbacks with the current legal framework surrounding the imposition of post-release control. Mundy was convicted in 2005 and appealed his case to this Court on two separate occasions prior to initiating the instant appeal. By the time this case is resolved, the amount of judicial and financial resources expended will be extraordinary. Moreover, it evidences that the goal of ensuring finality in sentencing is becoming increasingly more difficult to achieve.
APPEARANCES:
MICHAEL J. CALLOW, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MICHAEL P. MCNAMARA, Assistant Prosecuting Attorney, for Appellee.