State v. Valentine , 2015 Ohio 5396 ( 2015 )

[Cite as State v. Valentine, 2015-Ohio-5396.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 15-COA-020
:
STEPHEN J. VALENTINE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court
of Common Pleas, Case No. 14-CRI-
172
JUDGMENT: REVERSED, VACATED, AND
REMANDED
DATE OF JUDGMENT ENTRY: December 21, 2015
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CHRISTOPHER R. TUNNELL CHRISTINA I. REIHELD
ASHLAND CO. PROSECUTOR P.O. Box 532
GARY D. BISHOP Danville, OH 43014
110 Cottage St.
Ashland, OH 44805
Ashland County, Case No. 15-COA-020 2
Delaney, J.
{¶1} Appellant Stephen J. Valentine appeals from the May 1, 2015 Judgment
Entry - Sentencing of the Ashland County Court of Common Pleas. Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s criminal convictions is not
necessary to our resolution of this appeal. Appellant entered negotiated pleas of guilty
to three offenses: murder, an unspecified felony pursuant to R.C. 2903.02(A); domestic
violence, a felony of the third degree pursuant to R.C. 2919.25(A); and tampering with
evidence, a felony of the third degree pursuant to R.C. 2921.12(A)(1). In exchange for
the pleas of guilty, other charges against appellant were dismissed and appellant
waived his right to appeal the convictions and sentences.
{¶3} The plea agreement did not prevent appellant from arguing the murder
and domestic violence counts should merge for purposes of sentencing. During the
plea hearing, the trial court advised appellant he would be subject to three years of
mandatory post-release control if the domestic violence count did not merge, and three
years of discretionary post-release control if the counts did merge.
{¶4} At sentencing, the parties agreed the domestic violence count merged
with the count of murder. Appellant was thus sentenced upon one count of murder and
one count of tampering with evidence: the trial court imposed a term of 15 years to life
consecutive to a term of 36 months. At the sentencing hearing, the trial court stated
appellant was subject to three years of mandatory post-release control.
Ashland County, Case No. 15-COA-020 3
{¶5} The resulting sentencing judgment entry stated appellant would be subject
to five years of mandatory post-release control.
{¶6} Appellant now appeals from the judgment entry of his convictions and
sentence.
{¶7} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶8} "I. THE TRIAL COURT ERRED BY FAILING TO NOTIFY VALENTINE
OF THE PROPER TERM OF POST-RELEASE CONTROL AT SENTENCING OR
FAILING TO IMPOSE THE PROPER TERM OF POST RELEASE CONTROL IN ITS
SENTENCING ENTRY."
ANALYSIS
{¶9} In his sole assignment of error, appellant argues the trial court failed to
advise appellant of the correct term of post-release control at sentencing and failed to
impose the correct term of post-release control. Appellee concedes the term of post-
release control should be a 3-year discretionary term. We agree with the parties and
therefore reverse and vacate the trial court’s imposition of post-release control. We
remand this matter to the trial court for further proceedings.
{¶10} Appellant is not subject to post-release control upon the count of murder
because he is subject to parole supervision pursuant to R.C. 2967.01(E) and
2967.13(A). Nor is he subject to post-release control upon the count of domestic
violence which merged with the count of murder.
Ashland County, Case No. 15-COA-020 4
{¶11} Appellant is thus subject to a discretionary 3-year period of post-release
control upon the count of tampering with evidence, a felony of the third degree. R.C.
2921.12(B); R.C. 2967.28(C).
{¶12} The term of post-release control was misstated at the sentencing hearing
and in the resulting judgment entry, requiring remand for a de novo hearing as to post-
release control only.1 R.C. 2929.191 sets forth a procedure for the trial court to correct
a judgment of conviction when the trial court, either at the sentencing hearing or in the
final judgment, failed to properly notify a defendant about the requisite post-release
control. State v. Crawley, 5th Dist. Stark No. 2010-CA-00057, 2010-Ohio-5098, ¶ 68.
Under that statute, the trial court must conduct a hearing as described by R.C.
2929.191(C):
(C) On and after the effective date of this section, a court that
wishes to prepare and issue a correction to a judgment of
conviction of a type described in division (A)(1) or (B)(1) of this
section shall not issue the correction until after the court has
conducted a hearing in accordance with this division. Before a court
holds a hearing pursuant to this division, the court shall provide
notice of the date, time, place, and purpose of the hearing to the
offender who is the subject of the hearing, the prosecuting attorney
of the county, and the department of rehabilitation and correction.
1Under these circumstances, a nunc pro tunc entry pursuant to Crim.R. 36 to modify a
sentencing entry cannot serve to correct the errors. A nunc pro tunc entry cannot go
beyond correcting a clerical error to conform the sentencing entry to reflect that proper
notification occurred when it did not; such action would improperly change the
substance of the entry to include events that never occurred. State v. Qualls, 131 Ohio
St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 26.
Ashland County, Case No. 15-COA-020 5
The offender has the right to be physically present at the hearing,
except that, upon the court's own motion or the motion of the
offender or the prosecuting attorney, the court may permit the
offender to appear at the hearing by video conferencing equipment
if available and compatible. An appearance by video conferencing
equipment pursuant to this division has the same force and effect
as if the offender were physically present at the hearing. At the
hearing, the offender and the prosecuting attorney may make a
statement as to whether the court should issue a correction to the
judgment of conviction.
{¶13} In the instant case, because the trial court misstated the term of post-
release control both at the hearing and in the sentencing entry, a remand for a de novo
hearing is required because R.C. 2929.19(B)(3)(c) requires the court to “notify” the
offender about post-release control and the Ohio Supreme Court has held that this
notification must come during the sentencing hearing. State v. Harris, 8th Dist.
Cuyahoga No. 95097, 2011-Ohio-1072, ¶ 7, citing State v. Jordan, 104 Ohio St. 3d 21,
2004-Ohio-6085, 817 N.E.2d 864 at paragraph two of the syllabus. Accordingly, we are
bound to find that appellant's sentence with regard to post-release control must be
corrected in accordance with R.C. 2929.191, including having a hearing using the
procedures set forth in R.C. 2929.191(C). State v. Crawley, 5th Dist. Stark No. 2010-
CA-00057, 2010-Ohio-5098, ¶ 7.
{¶14} A complete de novo resentencing is not required; the limited resentencing
must cover only the imposition of post-release control and the remainder of the
Ashland County, Case No. 15-COA-020 6
sentence is valid under the principles of res judicata. State v. Fischer, 128 Ohio St. 3d
92, 97, 2010-Ohio-6238, 942 N.E.2d 332, 338-39, ¶ 17.
{¶15} Accordingly, the judgment of the trial court is reversed and the matter
remanded for the purpose of a limited resentencing pursuant to R.C. 2929.191. See,
Crawley, supra, 2010-Ohio-5098.
CONCLUSION
{¶16} Appellant’s sole assignment of error is sustained, the judgment of the trial
court regarding post-release control is reversed and vacated, and this matter is
remanded to the trial court for a hearing pursuant to R.C. 2929.191.
By: Delaney, J. and
Gwin, P.J.
Baldwin, J., concur.