Case Information
*1
[Cite as
State v. Provens
,
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : William B. Hoffman, P.J.
: Julie A. Edwards, J.
Plaintiff-Appellee : Patricia A. Delaney, J.
:
-vs- : Case No. 2011CA00089
:
: ARMONE PROVENS : O P I N I O N Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No. 2006CR0193 JUDGMENT: Reversed and Remanded DATE OF JUDGMENT ENTRY: September 26, 2011 APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant JOHN D. FERRERO CRAIG M. JAQUITH Prosecuting Attorney Office of the Ohio Public Stark County, Ohio Defender’s Office
250 East Broad Street, Suite 1400 BY: KATHLEEN O. TATARSKY Columbus, Ohio 43215 Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
[Cite as
State v. Provens
,
Edwards, J.
{¶1} Defendant-appellant, Armone Provens, appeals from the March 16, 2011, Judgment Entry of the Stark County Court of Common Pleas overruling his Motion to Vacate and Correct Sentence. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE On March 17, 2006, the Stark County Grand Jury indicted appellant on one count of murder in violation of R.C. 2903.02(B), a felony of the first degree, one count of felonious assault in violation of R.C. 2903.11(A)(1) and/or (A)(2), a felony of the second degree, and one count of having weapons while under disability in violation of R.C. 2923.13(A)(2), a felony of the third degree. The charges of murder and felonious assault were accompanied by firearm specifications. At his arraignment on March 24, 2006, appellant entered a plea of not guilty to the charges. Appellant’s trial commenced on July 17, 2006. During a break in the trial,
appellant pleaded guilty to the crime of having weapons while under disability. At the conclusion of the evidence and the end of deliberations, the jury, on July 20, 2006, found appellant guilty of the lesser included offense of reckless homicide. The jury found that appellant had a firearm on or about his person. The trial court declared a mistrial on the charges of murder and felonious assault. Pursuant to a Judgment Entry filed on July 25, 2006, appellant was
sentenced to five years in prison for reckless homicide and five years in prison for having weapons while under disability, to be served consecutively. A three-year sentence was imposed for the gun specification. Appellant was sentenced to an aggregate sentence of thirteen (13) years. In addition, because appellant was on post- *3 release control in Stark Case No. 1998CR0124(B) at the time of the shooting, an additional three (3) years and fifty-four days was tacked on to his sentence. In all, appellant received a prison sentence of sixteen (16) years and fifty-four (54) days. Appellant appealed his conviction and sentence. Pursuant to an Opinion filed on April 14, 2008 in State v. Provens , Stark App. No. 2007CA00034, this Court affirmed the judgment of the trial court. Subsequently, appellant filed a Motion to Reopen his direct appeal
pursuant to App. R. 26(B). Such motion was denied as memorialized in an Opinion filed on August 4, 2008 in State v. Provens , Stark App. No. 2007-CA-00034, 2008-Ohio- 3933. Thereafter, on September 2, 2010, appellant filed a Motion to Vacate and
Correct Sentence. Appellant in his motion, alleged that his sentencing entry in Stark Case No. 1998CR0124(B) was void because, in such case, he was improperly advised of post-release control. Appellant alleged that the trial court, in Case No. 1998CR0124(B), incorrectly stated that appellant would be subject to post-release control for “up to five years” when “R.C. 2967.28(B) mandated that [appellant’s] sentence include a mandatory period of post-release control of five years.” Appellant argued that because he could not be forced to serve time for violating the void term of post-release control in such case, the trial court in the case sub judice was required to vacate that portion of his sentence tacking on the three (3) years and fifty-four (54) days onto his sentence. Appellant, in his motion, also argued that the trial court’s entry in Case No. 1998CR0124(B) failed to advise him that he faced the possibility of serving up *4 to one-half of his original prison term as a new prison sentence if he violated the terms of his release.
{¶8} Appellee filed a response to such motion on March 7, 2011. As memorialized in a Judgment Entry filed on March 16, 2011, the trial court overruled appellant’s motion.
{¶9} Appellant now raises the following assignment on appeal: “THE TRIAL COURT ERRED WHEN IT DENIED MR. PROVENS’ MOTION TO VACATE AND CORRECT HIS SENTENCE.”
I Appellant, in his sole assignment of error, argues that the trial court erred
when it denied his Motion to Vacate and Correct Sentence. We agree. As is stated above, appellant in his motion, alleged that his sentencing
entry in Stark Case No. 1998CR0124(B) was void because the trial court, in Case No. 1998CR0124(B), incorrectly stated that appellant would be subject to post-release control for “up to five years” when “R.C. 2967.28(B) mandated that [appellant’s] sentence include a mandatory period of post-release control of five years.” Appellant argued that because he could not be forced to serve time for violating the void term of post-release control in such case, the trial court, in the case sub judice, erred in tacking on three (3) years and fifty-four (54) days onto his sentence. Appellant, in his motion, also argued that the trial court’s entry in Case No. 1998CR0124(B) failed to advise him that he faced the possibility of serving up to one-half if his original prison term as a new prison sentence if he violated the terms of his release. *5 R.C. 2929.14(F)(1) provides that if a court imposes a prison term for a
felony, the sentence shall include a requirement that the offender be subject to a period
of post-release control after the offender's release from imprisonment. R.C.
2929.19(B)(3) requires that the sentencing court notify the offender that the offender will
be supervised under R.C. 2967.28 after the offender leaves prison. The Supreme Court
of Ohio has interpreted these provisions as requiring a trial court to give notice of post-
release control both at the sentencing hearing and by incorporating it into the
sentencing entry. State v. Jordan, 104 Ohio St.3d 21, 2004–Ohio–6085, 817 N.E.2d
864, paragraph one of the syllabus. The trial court must do so regardless of whether the
term of post-release control is mandatory or discretionary. Id. at paragraph two of the
syllabus; Hernandez v. Kelly,
notify an offender about post-release control at the sentencing hearing, but incorporates that notice into its journal entry imposing sentence, it fails to comply with the mandatory provisions of R.C. 2929.19(B)(3)(c) and (d), and, therefore, the sentence must be vacated and the matter remanded to the trial court for resentencing.” Id. at paragraph two of the syllabus. “[T]he effect of vacating the sentence places the parties in the same
position as they were had there been no sentence.” State v. Bezak,
{¶16}
A trial court retains jurisdiction to correct a void sentence and is authorized
to do so when its error is apparent. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-
6085, 817 N.E.2d 864 at paragraph 23. Res Judicata does not act to bar a trial court
from correcting the error. State v. Simpkins,
{¶17}
In State v. Fischer,
1998CR0124(B) stated, in relevant part, as follows: “The Court has further notified the defendant that post release control is
mandatory in this case up to a maximum of five (5) years, as well as the consequences for violating conditions of post release control imposed by the Parole Board under Revised Code Section 2967.28. The defendant 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.” Appellant argues his sentence in such case was void because he was not
informed that the mandatory term was five years as opposed to “up to” five years. R.C.
*7
2967.28(B)(1). We agree with appellant's argument. The trial court failed to satisfy “our
existing precedent—that it notify the offender of the mandatory nature of the term of
post-release control and the length of that mandatory term and incorporate that
notification into its entry.” State v. Bloomer,
reversed and this matter is remanded for resentencing.
By: Edwards, J.
Hoffman, P.J. concurs
Delaney, J. dissents
______________________________ ______________________________ ______________________________
JUDGES
JAE/d0623
Delaney, J., dissenting
I respectfully dissent from the majority opinion and would affirm the judgment of the trial court based upon this Court’s prior decision in State v. Miller , Stark App. No. 2010CA001175, 2010-Ohio 6001.
__________________________ JUDGE PATRICIA A. DELANEY
[Cite as
State v. Provens
,
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
: -vs- : JUDGMENT ENTRY
:
ARMONE PROVENS :
:
Defendant-Appellant : CASE NO. 2010CA00089 For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Common Pleas is reversed and remanded to the trial court for further proceedings. Costs assessed to appellee.
_________________________________ _________________________________ _________________________________ JUDGES