State v. WilliamsState v. Williams
Dated: October 20, 2010
WHITMORE, Judge.
{¶1} Defendant-Appellant, Marvin Williams, appeals from the judgment of the Summit County Court of Common Pleas. This Court vacates.
I
{¶2} On September 9, 2005, a grand jury indictеd Williams on the following counts: (1) receiving stolen property, in violation of
{¶3} On March 23, 2006, the court issued Williams’ sentencing entry. The entry did not include sentences for two of Williams’ minоr misdemeanors. This Court dismissed Williams’ first appeal, in part, for lack of a final, appealable order with respect to the two misdemeanors, but affirmed the remainder of his convictions. State v. Williams, 9th Dist. No. 23176, 2007-Ohio-622. This Court did not address the fact that the March 23, 2006 sentencing entry did not contain a proper post-release control notification.
{¶4} After this Court‘s partial dismissal, the triаl court sentenced Williams solely with regard to his minor misdemeanors. On June 24, 2009, the court issued another sentencing entry, nunc pro tunc. The entry reiterated the entirety of Williams’ sentencе and included a notification that Williams would be subject to post-release control. Yet, the entry did not inform Williams of the penalty for violating post-release control. On August 21, 2009, thе court issued a second nunc pro tunc sentencing entry. The August 21, 2009 sentencing entry included Williams’ post release control term and the penalty for violating any post-releasе control conditions.
{¶5} Williams now appeals from the court‘s August 21, 2009 nunc pro tunc sentencing entry and raises five assignments of error for our review. We consolidate the assignments оf error.
Assignment of Error Number One
“APPELLANT‘S CONVICTION WAS BASED UPON INSUFFICIENT EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]”
Assignment of Error Number Two
“THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S CRIM.R. 29 MOTION. THE TRIAL COURT ERRED BY REFUSING TO RULE ON THE APPELLANT‘S SUPPLEMENTAL MOTION FOR ACQUITTAL, CRIM.R. 29 AT THE CLOSE OF THE CASE IN THE TRIAL COURT[.]”
Assignment of Error Number Three
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT PERMITTING THE JURY TO VIEW EVIDENCE IN A TIMELY MANNER AND IN THAT POISONED THE MINDS OF THE JURY CREATING A MISCARRIAGE OF JUSTICE[.]”
Assignment of Error Number Four
“WHEN COUNSEL‘S PERFORMANCE IS DEFICIENT IN THE CONDUCT OF TRIAL COUPLED WITH PREJUDICE INURING TO THE DETRIMENT OF THE APPELLANT, HIS RIGHT TO A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL ARE VIOLATED CONTRA THE OHIO AND FEDERAL CONSTITUTION[.]”
Assignment of Error Number Five
“THE TRIAL COURT ERRED BY PROVIDING APPELLANT WITH THE JOURNAL ENTRY IN LIGHT OF THIS APPEAL. THE TRIAL COURT IS DENYING APPELLANT DUE PROCESS OF LAW IN THAT THE JOURNAL ENTRY HAS FALSE STATEMENT‘S (sic) AND THE APPEARANCE THAT APPELLANT WAS PREAENT (sic) AT A SENTENCING HEARING FEBRUARY 15, 2007, AND WAS AFFORDED ALL RIGHT‘S (sic) PURSUANT TO CRIM.R. 32[.]”
{¶6} All of Williams’ assignments of error attack various aspects of his convictions on the merits. Because Williams has appealed from a void sentencе, this Court cannot address his assignments of error.
“For criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose post[-]release control, trial courts shall conduct a de nоvo sentencing hearing in accordance with decisions of the Supreme Court of Ohio.” State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, at paragraph one of the syllabus.
A trial court may not correct a pre-July 11, 2006 criminal sentence by way of a nunc pro tunc entry because the sentence itself is void and therefore “there is no existing judgment for a sentencing court to correct.” Singleton at ¶26. See, also, State v. Yeager, 9th Dist. No. 25125, 2010-Ohio-3848, at ¶13. Thus, for pre-July 11, 2006 criminal sentences, the trial сourt must follow the de novo sentencing procedures as prescribed by Ohio Supreme Court precedent. Id.
{¶8} Williams never received a de novo sentencing hearing. The сourt instead attempted to correct Williams’ sentence on more than one occasion by way of a nunc pro tunc entry. The nunc pro tunc entries the court issued did nоt change the status of Williams’ void sentence. Singleton at ¶26. As such, Williams still has not received a valid criminal sentence from which he may appeal, and this Court may not address his assignments of error on the merits. Williams’ prior sentencing entries, including those designated “nunc pro tunc” are vacated, and this matter is remanded to the trial court for a de novo sentencing hеaring.
III
{¶9} Because Williams’ sentence is void, this Court cannot address his assignments of error. Williams’ sentence is vacated, and the cause is remanded for the trial court to conduсt a de novo sentencing hearing in accordance with the foregoing opinion.
Sentence vacated,
and cause remanded.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of thе Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J.
CONCURS
CARR, J.
DISSENTS, SAYING:
{¶10} I respectfully dissеnt from the majority‘s decision vacating Williams’ sentence and remanding to the trial court. I would dismiss Williams’ appeal as untimely.
{¶11} The trial court first attempted to sentence Williams on Mаrch 21, 2006. Williams was present at that hearing. The trial court, however, failed to properly impose post-release
{¶12} On June 19, 2009, the trial court revisited the issue of Williams’ sentence and issued what it described as a nunc pro tunс entry designed to correct the February 22, 2007 sentencing entry. However, the trial court‘s June 24, 2009 journal entry sentenced Williams on all charges for which he was originally found guilty in February 2006. Notwithstanding thе trial court‘s assertion that it was merely correcting the February 22, 2007 journal entry nunc pro tunc, it in fact substantively changed that entry by sentencing Williams for the first time on the felonies and higher lеvel misdemeanors. The trial court sentenced Williams by way of the June 24, 2009 entry which contained all the elements of a final judgment of conviction. See State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, at ¶18. Moreover, this Court has held that a judgment entry of conviction which incorrectly imposes postrelease control is voidable and triggers the right to timely appeal. State v. Jones, 9th Dist. No. 25254, 2010-Ohio-3850, at ¶8. The trial court‘s mislabeling of the judgment as an entry nunc pro tunc does not negate its finality. State v. Hopkins, 3d Dist. No. 17-08-01, 2008-Ohio-2611, at ¶14. Accordingly, the trial court‘s June 19, 2009 contemplation of the matter constituted a de novo sentencing hearing at whiсh Williams had the right to be present. See Singleton, at paragraph one of the syllabus.
{¶14}
{¶15} I would further acknowledge the significance of the status of the June 24, 2009 entry as a voidable judgment, rather than a void one. A void judgment is one that has no effect from its inception. A voidable judgment, on the other hand, remains effective and requires some action by the trial court to terminate the efficacy of the order. The trial court‘s August 21, 2009 journal entry, which purported to fully address the issue of postrelease control, did not vacate the June 24, 2009 judgment. Had it done so, I would be inclined to conclude that the trial court held
APPEARANCES:
MARVIN L. WILLIAMS, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.