State v. ParisState v. Paris
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Ross T. Smith, Huntington Bank Building, 26 Market Street, Suite 610, Youngstown, Ohio 44503
OPINION
{¶1} Appellant Ronald Paris appeals a March 9, 2015 Belmont County Common Pleas Court sentencing entry. Appellant argues that the trial court stated at the sentencing hearing that he “could be” subject to a three-year period of postrelease control. Appellant argues that this contradicts the mandatory three-year period of postrelease control stated in the court‘s sentencing entry. The state confesses judgment. Pursuant to State v. Ericson, 7th Dist. No. 09 MA 109, 2010-Ohio-4315, Appellant‘s argument has merit and a limited remand is granted only for purposes of correcting the postrelease control portion of his sentence.
Factual and Procedural History
{¶2} Appellant was indicted on one count of intimidation, a felony of the third degree in violation of
ASSIGNMENT OF ERROR
THE TRIAL COURT FAILED TO PROPERLY ADVISE THE DEFENDANT THAT HE WAS SUBJECT TO MANDATORY POST-RELEASE CONTROL AT SENTENCING.
{¶3} Appellant argues that the trial court entered inconsistent judgments as the court referred to the imposition of postrelease control as discretionary at his hearing and mandatory within its entry. Citing to Ericson, supra, Appellant argues that the use of “could be subject to” when warning of mandatory postrelease control is erroneous. The state confesses judgment.
{¶4} In relevant part,
{¶5} As Appellant pleaded guilty to a third-degree felony, he was subject to a mandatory three-year period of postrelease control. At the sentencing hearing, the trial court indicated that Appellant could be subject to a three-year period of postrelease control. Pursuant to Ericson, this statement was erroneous.
{¶6} As to Appellant‘s remedy,
Effective July 11, 2006,
R.C. 2929.191 establishes a procedure to remedy a sentence that fails to properly impose a term of postreleasecontrol. It applies to offenders who have not yet been released from prison and who fall into at least one of three categories: those who did not receive notice at the sentencing hearing that they would be subject to postrelease control, those who did not receive notice that the parole board could impose a prison term for a violation of postrelease control, or those who did not have both of these statutorily mandated notices incorporated into their sentencing entries. R.C. 2929.191(A) and (B). For those offenders,R.C. 2929.191 provides that trial courts may, after conducting a hearing with notice to the offender, the prosecuting attorney, and the Department of Rehabilitation and Correction, correct an original judgment of conviction by placing on the journal of the court a nunc pro tunc entry that includes a statement that the offender will be supervised underR.C. 2967.28 after the offender leaves prison and that the parole board may impose a prison term of up to one-half of the stated prison term originally imposed if the offender violates postrelease control.
Ericson at ¶ 43, citing State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434 at ¶ 23. The
Conclusion
{¶8} Appellant argues that the trial court erroneously referred to his mandatory three-year period of postrelease control as discretionary at the sentencing hearing. The state confesses judgment. Appellant‘s convictions and sentence are affirmed. However, we vacate the postrelease control portion of Appellant‘s sentence and remand the matter for a limited
Donofrio, P.J., concurs.
DeGenaro, J., concurs.