STATE OF OHIO, Plaintiff-Appellee -vs- GERRY H. PERSINGER, Defendant-Appellant
Case No. 2017CA0007
COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 22, 2018
2018-Ohio-1076
Hon. John W. Wise, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Morrow County Court of Commоn Pleas, Case No. 2008 CR 0086. JUDGMENT: REVERSED AND REMANDED FOR ISSUANCE OF NUNC PRO TUNC ENTRY.
APPEARANCES:
For Plaintiff-Appellee:
DAVID HOMER, Morrow Co. Asst. Prosecutor, 60 East High St., Mt. Gilead, OH 43338
For Defendant-Appellant:
GERRY A. PERSINGER, PRO SE, Marion Correctional Inst., P.O. Box 57, Marion, OH 43301
{¶1} Appellant Gerry H. Persinger appeals from the October 5, 2017 Judgment Entry of the Morrow County Court of Common Pleas overruling his “motion for arrest of judgment” and “motion to vacate void judgment.” Appеllee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} In 2008, appellant was convicted of four counts of unlawful sexual conduct with a minor, all felonies of the second degree
{¶3} In 2012, appellant filed a petition for post-conviction relief which was overruled. We dismissed аppellant‘s subsequent appeal because no brief was filed. State v. Persinger, 5th Dist. Morrow No. 12-CA-11.
{¶4} In 2014, appellant filed a motion to correct sentence which was overruled. We dismissed appellant‘s subsequent appeal as untimely. State v. Persinger, 5th Dist. Morrow No. 14 CA 0001.
{¶5} On May 3, 2017, appellant filed a “Motion to Arrest Judgment, Pursuant to
{¶6} Appellant now appeals from the trial court‘s Journal Entry of Judgment datеd October 5, 2017, overruling his motions for arrest of judgment and to vacate void judgment.
{¶7} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶8} “THE TRIAL COURT ERRED WHEN IT DENIED THE MOTION TO VACATE VOID JUDGMENT FOR IMPROPERLY IMPOSING POST-RELEASE CONTROL IN VIOLATION OF DUE PROCESS UNDER THE OHIO CONSTITUTION ART. I SECT. 16 U.S. CONSTITUTION 14TH AMENDMENT.”
ANALYSIS
{¶9} Appellant argues the trial court was required to vacate the void judgment for improperly imposing post-release control. We agree to the extent that we remand the matter to the trial сourt with instructions to issue a nunc pro tunc entry properly stating the duration of the post-release control period.
{¶10} “[A] trial court must prоvide statutorily compliant notification to a defendant regarding post release control at the time of sentencing, including notifying the defendant of the details of the post release control and the consequences of violating post release control.” State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18 (citations omitted). Further, “a trial court must incorporate into the sentencing entry the post release-control notice to reflect the notification that was given at the sentencing hearing.” Id. at ¶ 19.
{¶11} Because appellant was ultimately sentenced upon felony sex offеnses, he was subject to a five-year mandatory term of post-release control. See
{¶12} In the case of mandatory post-relеase control, the court at a sentencing
{¶13} Appellant has not provided a transcripts of the sentenсing hearing, so we presume the trial court‘s oral post-release control notifications were proper. State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 20, citing Natl. City Bank v. Beyer, 89 Ohio St.3d 152, 160, 729 N.E.2d 711 (2000); State v. Moore, 5th Dist. Muskingum No. CT2015-0027, 2015-Ohio-3435, ¶ 11, affirmed, 151 Ohio St.3d 276, 2017-Ohio-7851, 87 N.E.3d 1261.
{¶14} In Grimes, supra, the Ohio Suprеme Court identified what information the sentencing entry must contain to validly impose post release control in cases in which the trial cоurt made the proper advisements at the sentencing hearing:
[T]he sentencing entry must contain the following information: (1) whether post releаse control is discretionary or mandatory, (2) the duration of the post release-control period, and (3) a statement to the effеct that the Adult Parole Authority (“APA“) will administer the post release control pursuant to
R.C. 2967.28 and that any violation by the offender of the conditions оf post release control will subject the offender to the consequences set forth in that statute.State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 1.
{¶15} As appellee and the trial court recognized, the issue posed by this case is the effect of the words “up to.” The trial court‘s original sentencing entry of October 17, 2008 states the following regarding post-release control:
* * * *.
The Court has further notified [appellant] that post release control is mandatоry in this case up to a maximum of (5) years, as well as the consequences for violating conditions of post release control imposed by thе Parole Board under Revised Code Section 2967.28. [Appellant] is ordered to serve as part of this sentence any term of post release control imposed by the Parole Board, and any prison term for violation of that post release control. (Emphasis added).
* * * *.
{¶16} We appreciate appellee‘s concession that the duration of the post-release control period is misstated and “up to” 5 years does not properly describe the duration of the post-release control period. See, State v. Hall, 11th Dist. Ashtabula No. 2016-A-0069, 2017-Ohio-4376, ¶ 25, appeal not allowed, 151 Ohio St.3d 1428, 2017-Ohio-8371, 84 N.E.3d 1065 [“up to” is discretionary language and does not state a definite term].
{¶17} This is not a case, however, in which the trial court failed to mention post release control at all in the sentencing entry; appellant was notified he was subject to a mandatory term of post rеlease control. Grimes, supra, 2017-Ohio-2927 at ¶ 14 [“In this case, as in Qualls, Grimes does not dispute that he was notified at the sentencing hearing that he would be subject to post release control * * * * so we conclude that the court accomplished the primary purpose of notice“]. We find this is a case in which the essеntial purpose of notice has been fulfilled, there is no need for a new sentencing hearing to remedy the flaw, and the
{¶18} We therefore sustain appellant‘s sole assignment of error to the extent that we remand this matter to the trial court for preparation of a nunc pro tunc entry reflecting that the mandatory duration of post release control is five years.
CONCLUSION
{¶19} Appellant‘s sole assignment of error is sustained, the judgment of the Morrow County Court of Common Pleas is reversed, and this matter is remanded to the trial court for preparation of a nunc pro tunc entry as described herein.
By: Delaney, J.,
Wise, John, P.J. and
Baldwin, J., concur.