STATE OF OHIO v. RAYMONT MUNDY
C.A. No. 15CA0001-M
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 30, 2016
2016-Ohio-4685
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE Nо. 04-CR-0551
CARR, Presiding Judge.
{¶1} Appellant, Raymont Mundy, appeals the judgment of the Medina County Court of Common Pleas. This Court affirms.
I.
{¶2} Eleven years ago, Mundy was convicted of one count of felonious assault on а peace officer, three additional counts of felonious assault, and one count of trafficking in drugs. The trial court imposed a thirteen-year prison sentence. Mundy’s convictions were affirmed on direct appeal. State v. Mundy, 9th Dist. Medina No. 05CA0025-M, 2005-Ohio-6608.
{¶3} In 2009, Mundy successfully moved this Court to reopen his appeal pursuant to
{¶5} The trial court conducted a limited resentencing hearing and imposed a mandatory three-year driver’s license suspension, with the suspension made retroactive to the original sentencing date. The sentencing entry was issued оn October 11, 2012. Mundy did not appeal from that sentencing entry.
{¶6} On June 25, 2014, Mundy filed a pro se motion to vacate his sentence based on errors made during his 2010 resentencing. The trial court denied Mundy’s motion, but issued a separate nunc pro tunc entry addressing several issues.
{¶7} On appeal, Mundy raises two assignments of error.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED MUNDY HIS FOURTEENTH AMENDMENT DUE PROCESS PROTECTIONS WHEN THE COURT ISSUED A NUNC PRO TUNC SENTENCING ENTRY TO CORRECT OMISSIONS OF THE ORIGINAL SENTENCING COURT[.]
{¶8} Mundy raises two issues in his first assignment of error. First, Mundy contends that the trial court erred by using a nunc pro tunc entry to correct an omission in the 2010 resentencing entry relating to the consequences of violating post-release control. Second, Mundy contends that the trial court erred by using a nunc pro tunc entry to set forth the sequence in which he was supposed to serve his individual sentences for the purposes of running those sentences consecutively. This Court disagrees with both propositions.
{¶9} This case has a long and tortured procedural history. For the purposes of clarity, we reiterate that the trial court conducted a de novo resentencing hearing in 2010, aftеr this Court determined that Mundy’s original sentence contained an error in the imposition of post-release control. Four years later, in his June 25, 2014 motion, Mundy raised two arguments in support of his рosition that his 2010 sentence was void and should be vacated. First, Mundy argued that the trial court failed to adequately notify him of the consequences for violating the terms of post-releаse control. Second, Mundy argued that in running his sentences consecutively, the trial court failed to set forth the order in which the sentences were to be served.
POST-RELEASE CONTROL
{¶10} In his June 25, 2014 motion, Mundy argued that his sentence should be vacated because the trial court failed to inform him, both at his sentencing hearing and in the sentencing entry, that he could receive a prison term of up to оne-half of the stated prison term originally imposed if he violated the terms of post-release control pursuant to
{¶11} On appeal, Mundy contends that the trial court exceeded the scope of its authority when it issued a nunc pro tunc entry to correct the omission in post-releasе control notification in the 2010 resentencing entry. The Supreme Court of Ohio has held that “[w]hen a defendant is notified about postrelease control at the sentencing hearing, but notifiсation is inadvertently omitted from the sentencing entry, the omission can be corrected with a nunc pro tunc entry and the defendant is not entitled to a new sentencing hearing.” State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, syllabus. Here, the trial court orally informed Mundy at the February 22, 2010 sentencing hearing that, pursuant to
{¶12} Mundy further argues on appeal that the trial court’s use of a nunc pro tunc entry was improper because its oral post-relеase control notification at the 2010 resentencing hearing did not include a discussion of
SEQUENCE OF SENTENCES
{¶13} The second issue Mundy raised in his motion to vacate was the trial court’s alleged failure to set forth the sequence in which the sentences for the individual counts were to be served for the purposes of running the sentences consecutively. The trial court denied Mundy’s motion but issued a nunc pro tunc entry clarifying that the individual counts were to be served in the order that they appeared in the indictment. On appeal, Mundy argues that the trial court’s use of a nunc pro tunc entry was improper because the entry did not reflect what the trial court decided during the 2010 resentencing. A trial court does not err by not expressly setting forth the order for service of consecutive sentences as there are statutes and rules that govern the order of how sentences are to be served. State v. Jackson, 7th Dist. Mahoning No. 13 MA 121, 2014-Ohio-2249, 43-45; State v. Robinson, 8th Dist. Cuyahoga No. 103559, 2016-Ohio-2931, ¶ 11. Although there is no requirement for the trial court to indicate the order for service of consecutive sentences in its judgmеnt entry, a review of the March 18, 2010 resentencing entry reveals that the trial court addressed the sentences for the individual counts to be served in the order that they appeared in the indictment. The trial court’s nunc pro tunc entry merely
{¶14} Mundy’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED MUNDY HIS FOURTEENTH AMENDMENT DUE PROCESS PROTECTIONS WHEN THE COURT IMPOSED POST RELEASE CONTROL FOR SENTENCES THAT HAD EXPIRED.
{¶15} In his second assignment of error, Mundy argues that the trial court erred by imposing post-release control in the December 12, 2014 nunc pro tunc entry because he had served almost ten years in prison and completed several of his sentences by that date. This Court disagrees.
{¶16} As noted in our resolution of Mundy’s first assignment of error, the trial cоurt properly utilized a nunc pro tunc entry to correct an omission from the March 18, 2010 sentencing entry regarding post-release control. A nunc pro tunc entry has retroactive legal effect and “by its very nature applies retrospectively to the judgment it corrects.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, ¶ 19. While Mundy contends that the trial court erred by imposing post-release control in the Deсember 12, 2014 nunc pro tunc entry, the nunc pro tunc entry applied retrospectively to the sentencing entry journalized March 18, 2010. Mundy, as the appellant in this matter, bears the burden of demonstrating error on appeal. Tadmor v. Huntington Natl. Bank, 9th Dist. Summit No. 23021, 2006-Ohio-3818, ¶ 7. As Mundy has failed to demonstrate that he completed any of his sentences at the time the trial court imposed post-release control in 2010, he has not met his burden of demonstrating error on appeal. The second assignment of error is overruled.
{¶17} Mundy’s first and second assignments of error are overruled. The judgment of the Medina County Cоurt of Common Pleas 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 Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by thе Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
SCHAFER, J.
CONCUR.
RAYMONT MUNDY, pro so, Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting Attorney, for Appellee.