THE STATE OF OHIO, APPELLANT, v. WARE, APPELLEE.
No. 2014-0425
Supreme Court of Ohio
Submitted September 10, 2014—Decided November 26, 2014.
2014-Ohio-5201
FRENCH, J.
{16} Because we find that Helbley and Wagner played virtually identical roles in the same underlying conspiracy—each served as a title agent although they handled different real estate transactions in furtherance of the conspiracy—and that each has been found to have violated Prof.Cond.R. 8.4(b) and (c), with comparable aggravating and mitigating factors, we adopt the board‘s recommended sanction.
{17} Accordingly, we indefinitely suspend William Charlеs Helbley Jr. from the practice of law in Ohio and grant credit for the time that he has served under the February 14, 2012 interim felony suspension. Costs are taxed to Helbley.
Judgment accordingly.
PFEIFER, LANZINGER, FRENCH, and O‘NEILL, JJ., concur.
O‘CONNOR, C.J., and O‘DONNELL and KENNEDY, JJ., dissent and would not grant credit for time served under the interim suspension.
David C. Comstock Jr. and Ronald E. Slipski, for relator.
John J. Juhasz, for respondent.
Background
{2} In March 2010, Ware pleaded guilty to two counts of trafficking in crack cocaine in violation of
{3} Ware‘s second-degree felony carried a mandatory prison tеrm—a fact Ware acknowledged when he pleaded guilty. The law in effect at the time required the sentencing court to “impose as a mandatory prison term one of the prison terms prescribed for a felony of the second degree.”
{4} At the April 2010 sentencing hearing, the trial court reminded Ware that his second-degree felony carried “mandatory time.” It then imposed a four-year prison term for that offense, to run concurrently with an 18-month prison term for Warе‘s fourth-degree felony, for a total prison term of four years. After announcing its sentence, however, the trial court concluded the hearing by telling Ware that, if he “change[d] [his] life around while in prison,” his attorney “may petition * * * for a judicial release when it‘s appropriate.” The trial court‘s sentencing entry incorporated Ware‘s four-year prison term, but did not refer to the term as mandatory.
{5} Beginning in November 2010, Ware began filing motions for judicial release. After the trial court denied his first motion, Warе filed a second,
{6} The trial court did not rule on the motion, but instead issued a nunc pro tunc entry, which referred to Ware‘s four-year prison term as “mandatory.” Ware withdrew his pending motion.
{7} On October 26, 2012, Ware filed a third motion for judicial release, arguing that the original sentencing entry imposed only a “minimum mandatory sentence of two (2) years.” After a hearing in February 2013, at which the state objected to Ware‘s early release, the trial court granted the motion and released Ware under intensive supervision for one year followed by general supervision for 48 months.
{8} Two days after it entered the final judgment granting Warе‘s release, the trial court held a “status hearing” to further explain its ruling. The trial court stated that it had not intended to make all four years of Ware‘s sentence mandatory: “My idea was if the mandatory minimum in a certain charge is two years and I gave you four, that you would be eligible after the two year period because that was the mandatory minimum.”
{9} The state appealed the judgment granting Ware‘s release and argued that Ware was ineligible for judicial release under
{10} The Eleventh District certified that its judgment was in conflict with the Third District‘s judgment in State v. Thomas, 3d Dist. Allen No. 1-04-88, 2005-Ohio-4616, 2005 WL 2129914. In Thomas, the Third District held that the mandatory prison term in
When the imposition of a mandatory prison term is statutorily-mandated for a specific felony offense, is the trial court permitted to impose a total prison term within the maximum allowed, only a portion of which is mandatory under the statute?
138 Ohio St.3d 1491, 2014-Ohio-2021, 8 N.E.3d 962.
Analysis
{11} Ohio law provides that a prisoner cannot apply for judicial release until a period of time “after the expiration of all mandatory prison terms” in the stated prison sentence.
{12} It bears repeating that judicial release is a privilege, not an entitlement. “There is no constitutional or inherent right * * * to be conditionally released before the expiration of a valid sentence.” State ex rel. Hattie v. Goldhardt, 69 Ohio St.3d 123, 125, 630 N.E.2d 696 (1994), quoting Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Courts have no inherent power to suspend execution of a sentence, and they must strictly construe statutes allowing such relief. State v. Smith, 42 Ohio St.3d 60, 61, 537 N.E.2d 198 (1989).
{13} In this case, Ware‘s second-degree felony was statutorily ineligible for judicial release from the very beginning. When he pleaded guilty, the punishment was clear: “the cоurt shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the second degree.” (Emphasis added.)
{14} The trial court did not change this result at sentencing. It imposed a four-year prison term, and that entire prison term was mandatory by operation of law. See
{15} The court of appeals agreed that Ware‘s “entire four-year sentence was mandatory,” 2013-Ohio-5833, 2013 WL 6881507, ¶ 24, and its analysis should have ended there. But rather than find Ware ineligible for judicial release, the court of appeals remanded for the trial court to issue a nunc pro tunc entry imposing the prison sentence that it had “intended,” that is, a “hybrid” sentence in which only two years would be mandatory. Id. at ¶ 44, 54.
{16} There are several problems with this analysis, starting with the court of appeals’ foсus on the prison sentence the trial court “intended” instead of the one it actually imposed. Only the latter is relevant in a judicial-release analysis. The trial court never imposed or purported to impose a hybrid sentence at the sentencing hearing or in its sentencing entry, and it did not announce a subjective intent to do so until the 2013 status hearing—years after it sentenced Ware and days after it entered the final judgment underlying this appeal. This hitherto unknown intent is inappropriate for a nunc pro tunc entry. A nunc pro tunc entry reflects what a court “actually decided, not what the court might or should have decided or what the court intended to decide.” State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 164, 656 N.E.2d 1288 (1995).
{17} Regardless, such a hybrid sentence would have been legally impossible. No sentencing statutе allows a court to divide a singular “mandatory prison term” into a hybrid of mandatory and discretionary sub-terms.
{18} Ware argues that the state cannot challenge his release because it did not object to his sentence at the sentencing hearing. There was nothing objectionable at sentеncing from the state‘s perspective, however. The trial court imposed a four-year prison term that was mandatory by operation of law and did not allow for early release. Although the trial court mistakenly referred to a possibility of judiciаl release at the end of the hearing, the misstatement was exactly that—a misstatement. It did not implicitly change Ware‘s sentence, or place his mandatory prison term into some default “hybrid” status. If Ware
{19} It is also irrelevant that the original sentencing entry did not refer to the four-year term as “mandatory.” The trial court used the term “mandatory” in its subsequent nunc pro tunc entry, and even if it had not, Ware‘s prison term still would have been mandatory.
{20} In the end, Ware did not qualify for judicial release under
Conclusion
{21} In summary, we answer the certified question in the negative and reverse the judgment of the court of appeals.
Judgment reversed.
O‘CONNOR, C.J., and O‘DONNELL, LANZINGER, KENNEDY, and O‘NEILL, JJ., concur.
PFEIFER, J., concurs, in judgment only.
Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela J. Holder, Assistant Prosecuting Attorney, for appellant.
Kane & Kane and Terry G.P. Kane, for appellee.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven DiMartino, Assistant Prosecuting Attorney, urging reversal for amicus curiae, Ohio Proseсuting Attorneys Association.