State v. StewartState v. Stewart
Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for defendant-appellant
O P I N I O N
POWELL, P.J.
{¶1} Defendant-Appellant, Dale Edward Stewart, appeals a decision of the Butler County Court of Common Pleas denying his motion to declare his sentence void. For the reasons outlined below, we reverse the decision of the trial court.
{¶2} In August 2000, appellant pleaded guilty to two counts of sexual battery in violation of
{¶3} Appellant was resentenced in August 2001 to two consecutive four-year prison terms. At his sentencing hearing, he was advised of his postrelease control obligations as follows:
{¶4} “* * * Sir, you are notified that upon release, from prison, you will be subjected to a five-year period of post release control, as to both counts. As a consequence of violating the conditions of your post release control imposed by the parole board, under Revised Control [sic] Section 2967.02(A) [sic].
{¶5} “The defendant‘s 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 post release control.
{¶6} “Sir, upon your release from prison, if you violate the terms and conditions of your post release control, your parole authority can return [you] to prison and require that you serve additional time.
{¶7} “Furthermore, while you‘re on post release control, if you commit a new felony offense, in addition to the sentence on the new felony offense, the court can sentence you up to one year, or the time remaining on post release control whichever is greater, as an additional penalty in addition to the sentence on the new felony. * * *”
{¶9} “The Court has notified the defendant that post release control is mandatory in this case up to a maximum of 5 years, as well as the consequences for violating conditions of post release control imposed by the Parole Board under
{¶10} Appellant again appealed to this court, arguing that the trial court erred by imposing consecutive prison terms and erred by denying him the opportunity to read and rebut sentencing evidence contained in victim impact statements. We overruled appellant‘s assignments of error and affirmed. State v. Stewart, Butler App. No. CA2001-09-217, 2002-Ohio-4124.
{¶11} Appellant completed his prison term, and in July 2008, he was released and placed on postrelease control. Almost two years later, on June 17, 2010, appellant filed a motion to declare his sentence void. Appellant argued that his sentence was void because the trial court‘s sentencing entry did not state that postrelease control was mandatory for a full five-year period, and because the trial court failed to notify him that a postrelease control violation could result in additional incarceration of up to one-half the time of his originally stated prison term. Furthermore, appellant argued that because he had already completed his stated prison term, he could not be resentenced. The trial court denied appellant‘s motion, holding that “the judgment of conviction entry coupled with the statements at the sentencing hearing * * * does include the notification of the consequences of violating
{¶12} Assignment of Error No.1:
{¶13} “[APPELLANT‘S] SENTENCE WAS VOID BECAUSE [POSTRELEASE CONTROL] WAS NOT LAWFULLY IMPOSED.”
{¶14} Appellant contends that the trial court erred by overruling his motion to declare his sentence void. Appellant argues that his sentence is void for two reasons. First, appellant contends that his sentence is void because the sentencing entry refers to an indeterminate amount of postrelease control. Second, appellant contends that his sentence is void because the trial court failed, both at the sentencing hearing and within its sentencing entry, to advise him that violating his postrelease control could result in additional incarceration of up to one-half the time of his originally stated prison term. He further contends that the court lacked jurisdiction to order a nunc pro tunc entry to correct the August 2001 sentencing entry since his prison term had already expired.
{¶15} ”
{¶16} In the case sub judice, the record demonstrates that the trial court unequivocally informed appellant at his sentencing hearing that “upon release, from prison, you will be subjected to a five-year period of post release control.” (Emphasis added.) The sentencing entry incorrectly indicated an optional or discretionary term of “up to” five years. The sentencing entry, therefore, did not accurately reflect the notification that appellant received at his sentencing hearing. Accordingly, a nunc pro tunc entry is the appropriate remedy for correcting this clerical mistake.
{¶17} Although the nunc pro tunc entry remedies appellant‘s challenge to his sentence with regards to the mandatory nature of postrelease control, it does not remedy the trial court‘s failure to advise appellant that the parole board may impose additional incarceration for as much as one-half the time of his originally stated prison term for violating conditions of postrelease control. The trial court had an affirmative
{¶18} “Because a sentence that does not conform to statutory mandates requiring the imposition of postrelease control is a nullity and void, it must be vacated. The effect of vacating the sentence places the parties in the same position that they would have been in had there been no sentence.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶22. The trial court retains jurisdiction to correct a void sentence; id. at 23; by conducting de novo sentencing for those sentences imposed prior to July 11, 2006 or by holding a
{¶20} Based on the foregoing, we find that the trial court erred in denying appellant‘s motion to declare his sentence void. Postrelease control was not properly imposed prior to appellant completing his stated term of imprisonment. Accordingly, appellant is discharged from postrelease control, and the trial court is instructed to note on the record that because appellant has completed his prison sentence, he will not be subject to resentencing pursuant to law. This matter is remanded for further proceedings according to law and consistent with this opinion.
{¶21} Judgment reversed and remanded.
BRESSLER and RINGLAND, JJ., concur.