STATE OF OHIO, Plaintiff-Appellee, v. RICHARD T. WILLIAMS, Defendant-Appellant.
CASE NO. CA2018-03-055
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
10/1/2018
2018-Ohio-3990
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2005-06-1135
Richard T. Williams, #A547019, London Correctional Institution, 1580 State Route 56, SW London, OH 43140, defendant-appellant, pro se
M. POWELL, J.
{¶ 1} Defendant-appellant, Richard Williams, appeals a decision of the Butler County Court of Common Pleas denying his motion for resentencing.1
{¶ 2} Appellant was indicted in 2005 on three counts of rape and four counts of gross sexual imposition for sexually abusing two pre-teenage children over a period
{¶ 3} Subsequently, appellant unsuccessfully challenged his conviction and sentence collaterally in two postconviction motions. See State v. Williams, 12th Dist. Butler No. CA2014-06-144, 2015-Ohio-1090 (upholding the denial of appellant‘s 2014 motion to dismiss the case for lack of subject-matter jurisdiction); and State v. Williams, 12th Dist. Butler No. CA2015-08-052 (Jan. 11, 2016) (Accelerated Calendar Judgment Entry) (upholding the denial of appellant‘s 2015 motion for resentencing and to declare the verdict forms void).
{¶ 4} On August 14, 2017, appellant filed a pro se motion for resentencing, arguing that the March 19, 2007 sentencing entry was “defective” because the trial court failed to properly impose postrelease control, include in the sentencing entry that appellant was classified a sexual predator pursuant to
{¶ 5} On March 1, 2018, the trial court denied appellant‘s motions on the ground that they were untimely postconviction relief petitions and that appellant could not avail himself of the exceptions to the timeliness requirement in
{¶ 6} Appellant now appeals, raising one assignment of error:
{¶ 7} THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION FOR RESENTENCING THEREBY DENYING HIS RIGHT TO A FINAL APPEALABLE ORDER AND DENYING APPELLANT OF A SENTENCING ENTRY THAT COMPLIES WITH THE LAW AS DETERMINED BY STATUTE AND CASE LAW SET BY THE OHIO SUPREME COURT AND IN VIOLATION OF DUE PROCESS AS GUARANTEED TO APPELLANT BY THE OHIO CONSTITUTION AND THE UNITED STATES CONSTITUTION.
{¶ 8} Appellant argues the trial court erred in denying his motion for resentencing. Specifically, appellant argues that the trial court failed to both fulfill its obligations under former
{¶ 9} Appellant is correct that the trial court failed to fulfill its obligations under
{¶ 10}
{¶ 11}
{¶ 12} A habitual sex offender is “a person who is convicted of or pleads guilty to a sexually oriented offense and who previously has been convicted of or pleaded guilty to one or more sexually oriented offenses.” See former
{¶ 13} The transcript of the sentencing and sex offender classification hearing
{¶ 14} Because the trial court‘s failure to comply with
{¶ 15} We note that appellant is not entitled to a de novo sentencing hearing in order for the trial court to correct its error under
{¶ 16} Appellant is further correct that the trial court failed to properly impose postrelease control in the March 19, 2007 sentencing entry.
{¶ 17} A trial court must properly impose postrelease control at the sentencing hearing and in the sentencing entry. State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶ 18-19. Pursuant to
{¶ 18} When a trial court fails to properly impose statutorily mandated postrelease control, “that part of the sentence * * * is void and must be set aside.” (Emphasis added.) State v. Fisher, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 26. Appellant is incorrect that the proper remedy for the trial court‘s error is a de novo sentencing hearing. When a trial court properly notified a defendant of postrelease control at the sentencing hearing, but the initial sentencing entry did not accurately reflect the details of the notification, the essential purpose of notice has been fulfilled and there is no need for a new sentencing hearing to remedy the law. Qualls at ¶ 24. Rather, the imperfect sentencing entry can be corrected through a nunc pro tunc entry. Id. at ¶ 13, 24, citing State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229; see also State v. Barnes, 12th Dist. Warren No. CA2014-03-049, 2015-Ohio-651. Because the trial court failed to properly impose postrelease control, we set aside that
{¶ 19} We note that the trial court denied appellant‘s August 14, 2017 motions for resentencing and to reinstate his Alford plea on the ground that they were untimely postconviction relief petitions and that his claims were barred by res judicata. We find that the trial court properly construed appellant‘s motion to reinstate his Alford plea on grounds of ineffective assistance of counsel as a petition for postconviction relief subject to the timeliness requirements of
{¶ 20} The trial court, however, erred in denying appellant‘s motion for resentencing relating to the trial court‘s improper imposition of postrelease control and failure to comply with
{¶ 21} Because appellant‘s motion for resentencing brought to the trial court‘s attention its failure to comply with
{¶ 22} We therefore affirm the trial court‘s dismissal of appellant‘s motion to reinstate his Alford plea and reverse the trial court‘s denial of appellant‘s August 14, 2017 motion for resentencing. We remand the matter to the trial court for the limited purpose of determining whether appellant was a habitual sex offender as required by
{¶ 23} Judgment affirmed in part, reversed in part, and remanded for further proceedings.
S. POWELL, P. J., concurs.
PIPER, J., concurs separately.
PIPER, J., concurring separately.
{¶ 24} Williams’ assignment of error claims the trial court violated his constitutional due process in not granting him an opportunity for resentencing and a new final appealable order. While Williams’ claims have no merit, three issues can be identified and remedied with an entry nunc pro tunc. Thus, I concur with the judgment of the majority, but respectfully do not concur in the analysis which deems portions of Williams’ sentencing void.
Postrelease Control
{¶ 25} What controls Williams’ postrelease control is the notice Williams was given at his sentencing hearing. State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, ¶ 14. The Ohio Supreme Court has determined that the main focus “in interpreting the sentencing statutes regarding postrelease control has always been a notification itself and not on the entry itself.” State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶ 19.
{¶ 26} Williams was correctly informed at the sentencing hearing that his period of postrelease control was a mandatory five years. The essential purpose of the notice was given to Williams and thus he experienced no substantial prejudice when the trial court‘s entry incorrectly stated “up to five years.” See id. at ¶ 23-24. While “up to five years” can include “five years,” Williams should have a correctly worded entry. Id. at ¶ 23. However, the wording incorrectly reported in the initial entry does not render his sentence void.
{¶ 27} Trial courts generally lack authority to reconsider their own valid final judgments in criminal cases, while they retain continuing jurisdiction to correct clerical errors with the use of nunc pro tunc entries to reflect what the court actually decided. Id. at ¶ 13. Such an error is particularly ripe for correction with the use of a nunc pro tunc entry when a claimed error does not involve altering the decision-making or judgment rendered at the sentencing hearing.
{¶ 28} Respectfully, I must disagree with the majority that Williams’ postrelease control sentencing hearing is void. He was given the correct postrelease control notice at his hearing. Because the entry incorrectly records what was said at the hearing, I agree with the majority in their determination that the remedy is a nunc pro tunc entry by the trial court.
Habitual Sexual Offender
{¶ 29} Similar to my conclusion regarding the postrelease control issue, I concur with the use of a nunc pro tunc entry to correct the error pertaining to Williams’ habitual sexual offender status. However, I cannot concur that this portion of Williams’ sentence is void.
{¶ 30} As the majority correctly points out, the trial court was required to make a determination as to whether or not Williams was a habitual sexual offender. At the
a). Habitual Sexual Offender v. Postrelease Control
{¶ 31} The Ohio Supreme Court has applied the concept of a “void” sentence involving postrelease control. The concept has been applied specifically due to the importance of the “notice” involved in postrelease control situations. However, on each occasion, the court has stressed its application is “narrow” and “limited” to postrelease control situations. Id. at ¶ 29; Grimes, 2017-Ohio-2927 at ¶ 20. Neither the Ohio Supreme Court nor any appellate court has determined a sentence to be “void” in situations involving whether or not a habitual sexual offender determination was made. The majority has not cited any authority for the proposition that Williams’ sentence in regard to his habitual sexual offender status is void. I decline to expand the application of a “void” sentence as used in postrelease control situations to those situations where the court omitted in its entry to record it did not find the offender to be a habitual sexual offender.
{¶ 32} The majority references State v. Gopp, 154 Ohio App.3d 385, 2003-Ohio-4908 (9th Dist.), yet Gopp makes no reference to the sentence being void. The fact that the trial court did not find Williams to be a habitual sex offender means Williams was not considered by the trial court to be a habitual sex offender. The absence of an expressed determination is of no prejudice to Williams since the trial court also did not find Williams was a habitual sexual offender. The omission of such a determination in the entry can be corrected with the use of a nunc pro tunc entry. An omission in an
Sexual Predator Determination
{¶ 33} The trial court correctly determined at the sentencing hearing that Williams was a sexual predator pursuant to the criteria of
{¶ 34} The legislature, at the time, specifically required the judgment entry of conviction contain a reference to the statute and the factors relied upon to determine an offender‘s status. I concur with the use of an entry nunc pro tunc to correct the deficiency in the judgment entry because the court properly determined at the hearing Williams’ sexual predator status. I do not find the deficiency is because the trial court‘s judgment entry involved a preprinted, check box format. Rather, the deficiency is because the entry failed to contain the references required by the statute in place at the time of the hearing. However, Crim.R. 36 anticipates the need for corrections such as those identified herein with the use of a nunc pro tunc entry.6
Conclusion
{¶ 35} I therefore concur in judgment, but for reasons separate from those of the majority.