State v. Fletcher ( 2018 )

[Cite as State v. Fletcher, 2018-Ohio-3726.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
JASMIN FLETCHER,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 17 MA 0034
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2012 CR 224 A
BEFORE:
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed in Part. Reversed in Part and Remanded.
Atty. Ralph Rivera, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th
Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee, and
Atty. Desirae DiPiero, 7330 Market Street, Youngstown, Ohio 44512, for Defendant-
Appellant.
Dated:
September 10, 2018
–2–
Donofrio, J.
{¶1} Defendant-appellant, Jasmin Fletcher, appeals her convictions and
sentence following guilty pleas in the Mahoning County Common Pleas Court for one
count of tampering with evidence in violation of R.C. 2921.12(A)(1)(B) and one count of
obstruction of justice in violation of R.C. 2921.32(A)(5)(C)(4), felonies of the third
degree.
{¶2} One of the central issues in this appeal was the trial court’s denial of
appellant’s motion to withdraw her guilty pleas. Appellant entered her guilty pleas on
February 24, 2014. Her motion to withdraw those pleas was filed on January 9, 2017,
almost three years after she entered her guilty pleas.
{¶3} On March 8, 2012, appellant was indicted on the above listed counts.
Appellant was indicted along with a co-defendant, Michael Paige. Paige was indicted on
the same counts as appellant but also faced three other counts for aggravated murder,
murder, and a separate tampering with evidence count.
{¶4} As part of a plea agreement with the plaintiff-appellee, the State of Ohio,
appellant agreed to testify against Paige at Paige’s trial. In exchange for testifying
against Paige and pleading guilty as charged, the written guilty plea appellant signed
provided that the state would “recommend 36 [months] conditioned upon [appellant’s]
truthful testimony consistent [with] her proffer given 2/24/14.” According to appellant, her
understanding was that the 36 months recommendation from the state would be for
probation and not incarceration. Appellant entered her guilty pleas at a hearing on
February 24, 2014 and her written guilty plea was dated February 25, 2014. The trial
court accepted the guilty pleas and ordered a presentence investigation. The trial court
scheduled appellant’s sentencing hearing for April 2, 2014.
{¶5} In a judgment entry dated April 3, 2014, the trial court continued the
sentencing hearing but did not schedule a date for a new sentencing hearing. On
February 22, 2016, appellant’s counsel filed an unopposed motion to withdraw as
counsel. In a judgment entry dated March 4, 2016, the trial court granted appellant’s
counsel’s motion and appointed appellant a new attorney.
Case No. 17 MA 0034
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{¶6} On January 9, 2017, appellant filed a motion to vacate her guilty pleas.
This motion was filed before appellant was sentenced. The basis of appellant’s motion
was that her prior attorney did not fully advise her about charges and her prior attorney
misadvised her about the state’s sentencing recommendation. The motion also argued
that appellant maintained her innocence and a potential meritorious defense was never
explored by her prior attorney. Appellant argued that the advice or lack thereof from her
prior counsel rendered her guilty plea not voluntary or intelligent.
{¶7} The stated filed a memo in opposition to appellant’s motion. In this memo,
the state argued that the First District’s decision in State v. Fish, 104 Ohio App.3d 236,
661 N.E.2d 788 (1st Dist. 1995), provided nine factors to consider when a trial court
should grant a motion to withdraw a guilty plea. The state argued that all nine of these
factors weighed in its favor and the motion to withdraw should be denied.
{¶8} On January 26, 2017, a hearing was held on appellant’s motion to
withdraw. At this hearing, appellant testified that she was under the impression that the
36 month recommendation from the state would be with the Adult Parole Authority and
not with the Ohio Department of Rehabilitation and Corrections. (Withdraw/Sentencing
Tr. 10-12). Appellant pointed out that the state’s recommendation in the written guilty
plea she signed did not reference prison or the Ohio Department of Rehabilitation and
Corrections. (Withdraw/Sentencing Tr. 7-8). Appellant testified that she also pled guilty
because the extended duration of the proceeding was causing a lot of people to suffer.
(Withdraw/Sentencing Tr. 9).
{¶9} On cross-examination of appellant, the state referenced several sections
of the transcript of appellant’s change of plea hearing. These sections indicated that:
appellant stated that everything in the written guilty plea was explained to her, appellant
read the written guilty plea with her attorney, and she had no questions for her attorney
at the change of plea hearing (Plea Tr. 8, Withdraw/Sentencing Tr. 13-14).
{¶10} The trial court overruled appellant’s motion on the basis that appellant was
aware she faced a prison sentence and that she never stated during her plea hearing
that she did not agree to a prison sentence. (Withdraw/Sentencing Tr. 18). The trial
court immediately proceeded to sentencing. The trial court sentenced appellant to 36
months of incarceration on the tampering with evidence charge and 24 months of
Case No. 17 MA 0034
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incarceration on the obstruction of justice charge. (Withdraw/Sentencing Tr. 28-29). The
trial court ordered these sentences to be served consecutively. (Withdraw/Sentencing
Tr. 28). The trial court also advised appellant that, upon her release from prison, she
was subject to a mandatory post-release control term of three years.
(Withdraw/Sentencing Tr. 29).
{¶11} Appellant’s sentence and the trial court’s ruling on the motion to withdraw
the guilty pleas were memorialized in a judgment entry dated February 6, 2017.
Appellant timely filed this appeal on February 21, 2017. Appellant now raises three
assignments of error.
{¶12} Appellant’s first assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
OVERRULED APPELLANT’S MOTION TO WITHDRAW HER PLEAS.
{¶13} Appellant argues that her guilty pleas were based on improper advice
given to her by her original counsel. Appellant argues that allowing her to withdraw her
plea would not prejudice the state and that her motion was timely filed after her
subsequent appointed counsel informed her she faced a prison term.
{¶14} Pursuant to Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no
contest may be made only before sentence is imposed; but to correct manifest injustice
the court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw his or her plea.”
{¶15} Appellant’s motion to withdraw her pleas was made prior to sentencing. A
pre-sentence motion to withdraw a guilty plea should be freely and liberally
granted. State v. Ocel, 7th Dist. No. 08 JE 22, 2009-Ohio-2633, ¶ 21, citing State v. Xie,
62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). “A motion made pursuant to Crim.R.
32.1 is addressed to the sound discretion of the trial court, and the good faith, credibility
and weight of the movant's assertions in support of the motion are matters to be
resolved by that court.” Ocel at ¶ 22, citing State v. Smith, 49 Ohio St.2d 261, 264, 361
N.E.2d 1324 (1997), paragraph two of the syllabus.
Case No. 17 MA 0034
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{¶16} When determining whether a trial court abused its discretion in denying a
pre-sentence motion to withdraw a plea, a reviewing court looks to nine factors. Those
factors are:
(1) Whether the state will be prejudiced by withdrawal; (2) the
representation afforded to the defendant by counsel; (3) the extent of
the Crim.R. 11 plea hearing; (4) whether the defendant understood the
nature of the charges and potential sentences; (5) the extent of the
hearing on the motion to withdraw; (6) whether the trial court gave full and
fair consideration to the motion; (7) whether the timing of the motion was
reasonable; (8) the reasons for the motion; and (9) whether the accused
was perhaps not guilty or had a complete defense to the charge.
State v. Scott, 7th Dist. No. 08 MA 12, 2008-Ohio-5043, ¶ 13 citing Fish, supra.{¶17} No one factor is conclusive for the determination of whether the trial court
should have granted the motion to withdraw. State v. Morris, 7th Dist. No. 13 MA 19,
2014–Ohio–882, ¶ 22, citing State v. Leasure, 7th Dist. No. 01BA42, 2002–Ohio–5019,
¶ 19.
{¶18} Addressing whether the state will be prejudiced by withdrawal, the state
concedes that this element weighs in appellant’s favor. (Brief of Appellee 6-7). But the
state, citing this Court’s decision in State v. Leasure, 7th Dist. No 01 BA 42, 2002-Ohio-
5019, argues that minimal prejudice or no prejudice to the state is not dispositive of
whether a trial court should have granted a motion to withdraw a plea. See Id. at ¶ 42.
The state also argues that other districts do not consider this factor. See State v. Harris,
8th Dist. No. 100002, 2014-Ohio-1423, ¶ 9, see also State v. Field, 11th Dist. No. 2011-
G-3010, 2012-Ohio-5221, ¶ 11.
{¶19} But this Court does consider the prejudice to the state factor. State v.
Scott, 2008-Ohio-5043, ¶ 13. There is no evidence in the record that the state would be
prejudiced by the withdraw of appellant’s guilty pleas. Because the state concedes this
element weighs in appellant’s favor and because no evidence in the record exists of
prejudice to the state, this factor weighs in appellant’s favor.
Case No. 17 MA 0034
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{¶20} Addressing the representation afforded to appellant, appellant argues that
her original counsel gave her improper advice which led her to believe that the state
would recommend probation and not prison. In appellant’s written guilty plea dated
February 25, 2014, the state’s recommendation provides: “State will recommend 36
[months] conditioned upon the defendant’s truthful testimony consistent [with] her
proffer given 2/24/14.”
{¶21} The written guilty plea contains nothing about whether the 36 months
would be served with the Adult Parole Authority or with the Ohio Department of
Rehabilitation and Corrections. But the written guilty plea also states that the maximum
term of each offense was 36 months.
{¶22} The only evidence of deficiencies in appellant’s representation was
appellant’s testimony at her motion to withdraw hearing. Appellant testified that her
attorney advised her that she would be serving her sentence with the Adult Parole
Authority. (Withdraw/Sentencing Tr. 8). In response, the state points out that its
recommendation at appellant’s change of plea hearing was for the 36 months to be
served with the Ohio Department of Rehabilitation and Corrections. (Plea Tr. 2-3). The
trial court advised appellant that it could “sentence [appellant] anywhere from 6 to 36
months on each count, for a possible total of 72 * * *.” (Plea Tr. 5). At no point did
appellant challenge this during the change of plea hearing. Appellant also stated at her
change of plea hearing that her attorney explained everything fully to her, she
thoroughly read her written guilty plea with her attorney, and she had no questions for
her attorney. (Plea Tr. 8). Because the state stated at the change of plea hearing that it
was recommending appellant’s sentence be served in prison and because appellant
understood her sentence carried a potential prison term, this element weighs in favor of
the state.
{¶23} Addressing the extent of the plea hearing, appellant concedes that the
hearing was adequate. Therefore, this factor weighs in favor of the state.
{¶24} Addressing whether appellant understood the nature of the charges and
potential sentences, appellant concedes that she understood them. Therefore, this
factor weighs in favor of the state.
Case No. 17 MA 0034
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{¶25} Addressing the extent of the motion to withdraw hearing, appellant had an
oral hearing on her motion in which she was able to present testimony and exhibits. The
state argues that appellant’s hearing on her motion was sufficient pursuant to State v.
Griffin, 8th Dist. No. 82832, 2004-Ohio-1246. In Griffin, Griffin pled guilty to aggravated
robbery. Id. at ¶ 3. At the sentencing hearing, prior to the sentence being issued, Griffin
made an oral motion to withdraw his plea. Id. The trial court inquired as to why Griffin
wanted to withdraw his plea. Id. at ¶ 11. Griffin wanted to withdraw his plea because he
felt that he could prevail at trial. Id. at ¶ 12. The trial court denied Griffin’s motion. Id. at
¶ 3.
{¶26} The Eighth District affirmed the trial court’s denial of Griffin’s motion. Citing
State v. Holloman, 2d Dist. No. 2000CA82, 2001 WL 699533, the Eighth District held
that the trial court held a hearing to take evidence and consider Griffin’s motion, even
though such hearing was brief. Griffin at ¶ 18-19.
{¶27} Appellant’s hearing on her motion was sufficient. She was able to take the
stand, present testimony, and present exhibits in support of her motion. Therefore, this
factor weighs in favor of the state.
{¶28} Addressing whether the trial court gave full and fair consideration to the
motion, appellant testified at the motion to withdraw hearing on direct examination that
her prior attorney advised her that the 36 months would be under the supervision of the
Adult Parole Authority and she pled guilty because the extended duration of the
proceeding was causing a lot of people to suffer. (Withdraw/Sentencing Tr. 8-9).
Appellant also submitted her written guilty plea and the transcript from the change of
plea hearing as exhibits.
{¶29} On cross examination, appellant testified that: everything in the written
guilty plea was explained to her, she read the written guilty plea with her attorney, and
she had no questions for her attorney at the change of plea hearing (Plea Tr. 8,
Withdraw/Sentencing Tr. 13-14). At appellant’s change of plea hearing, the state
informed the court that the 36 month recommendation would be with the Ohio
Department of Rehabilitation and Corrections, not the Adult Parole Authority. (Plea Tr.
2-3, Withdraw/Sentencing Tr. 13).
Case No. 17 MA 0034
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{¶30} The trial court denied appellant’s motion for two reasons. First, the court
noted that appellant admitted she went over the plea agreement with her attorney and
at no point did appellant say “I didn’t agree to prison or the Department of Rehabilitation
and Corrections * * *.” (Withdraw/Sentencing Tr. 18). The trial court also noted that
appellant made no objection when she was informed during the change of plea hearing
that the sentences for those convictions could be served in prison.
(Withdraw/Sentencing Tr. 18). Second, the trial court noted that appellant had
previously been to prison so the appellant knew what the Department of Rehabilitation
and Corrections was. (Withdraw/Sentencing Tr. 18). The trial court gave appellant’s
motion full and fair consideration. Therefore, this factor weighs in favor of the state.
{¶31} Addressing the timing of the motion, appellant entered her guilty pleas on
February 4, 2014. Appellant’s motion to vacate her guilty pleas was filed on January 9,
2017, almost three years after she pled guilty to the charges. According to appellant,
after her original counsel withdrew from the case and her appointed counsel began
representing her, she requested that her counsel file the motion as soon as she was
informed the recommendation was for a prison term. (Brief of Appellant 7).
{¶32} In response, the state cites this Court’s decisions in State v. Calloway, 7th
Dist. No. 10 MA 147, 2011-Ohio-4257 and State v. Gallagher, 7th Dist. No. 08 MA 178,
2009-Ohio-2636, in support of its argument that appellant’s motion was untimely. But in
both of these cases, the motions to withdraw guilty pleas were made at the sentencing
hearing.
{¶33} While appellant’s motion was made prior to her sentencing hearing, the
almost three year delay between the guilty pleas and motion to withdraw renders
appellant’s motion untimely. Therefore, this factor weighs in favor of the state.
{¶34} Addressing appellant’s reasons for her motion, appellant argues that her
original counsel misadvised her regarding the state’s recommendation on her sentence.
As previously stated, the state specifically informed the court during appellant’s change
of plea hearing that it was recommending appellant be under the supervision of the
Ohio Department of Rehabilitation and Corrections. Appellant did not object to this
during the change of plea hearing. Moreover, as the trial court noted that appellant has
served a prison term prior to these convictions, appellant knew that the Ohio
Case No. 17 MA 0034
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Department of Rehabilitation and Corrections meant prison. Therefore, this factor
weighs in favor of the state.
{¶35} Addressing whether appellant was not guilty or had a complete defense,
appellant argues that she maintained her innocence or had a viable defense to the
tampering with evidence charge. But her motion to vacate her pleas offers no facts in
support of this factor. Appellant argued that she always maintained her innocence and
had a meritorious defense that was never explored by her prior counsel. But there were
no arguments about what defense appellant’s counsel sought to explore or why
appellant was potentially innocent.
{¶36} In response, the state cites the Eleventh District’s decision in State v.
Holin, 174 Ohio App.3d 1, 2007-Ohio-6255, 880 N.E.2d 515 (11th Dist.). In Holin, the
Eleventh District held that a claim of innocence does not provide a reasonable basis for
withdrawing the plea; otherwise withdrawal would effectively be an automatic right. Id. at
¶ 20 citing U.S. v. Barker, 514 F.2d 208 (D.C. Cir. 1975).
{¶37} The state also cites the First District’s decision in State v. Calloway, 1st
Dist. No. C-040066, 2004-Ohio-5613. In Calloway, the First District held that absent
facts or inferences supporting a claim of innocence, the trial court’s judgment denying a
motion to withdraw a plea was not an abuse of discretion. See Id. at ¶ 15-22. Because
appellant did not argue any facts which support her claim of innocence or support any
defense, this factor weighs in favor of the state.
{¶38} In total, only one of the Fish factors weighs in appellant’s favor; lack of
prejudice to the state. With only one Fish factor in appellant’s favor, it cannot be said
that the trial court abused its discretion in denying appellant’s motion.
{¶39} Accordingly, appellant’s first assignment of error lacks merit and is
overruled.
{¶40} Appellant’s second assignment of error states:
THE TRIAL COURT ERRED WHEN IT NOTIFIED APPELLANT
THAT SHE WAS SUBJECT TO A MANDATORY THREE-YEAR PERIOD
OF POST-RELEASE CONTROL AND FAILED TO NOTIFY HER THAT
SHE COULD SERVE UP TO ONE-HALF OF HER STATED PRISON
TERM FOR A POST-RELEASE CONTROL VIOLATION.
Case No. 17 MA 0034
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{¶41} Appellant argues that the trial court failed to properly advise her regarding
post-release control. First, appellant argues that the trial court failed to inform her that, if
she violated post-release control, she could serve up to one-half of her original prison
term. Second, appellant argues that the trial court improperly advised her that post-
release control was mandatory in this case.
{¶42} The state concedes that the trial court improperly advised appellant that
she would be subject to a mandatory period of post-release control and requests that
this assignment of error be sustained.
{¶43} An appellate court may vacate or modify a felony sentence on appeal only
if it determines by clear and convincing evidence that the record does not support the
trial court’s findings under relevant statutes or that the sentence is otherwise contrary to
law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 ¶ 1 citing
R.C. 2953.08(G)(2).
{¶44} Addressing appellant’s post-release control violation argument, the trial
court’s judgment entry dated February 6, 2017 states that if appellant violates the terms
of her post-release control, she can face a prison term of up to one-half of the stated
prison term originally imposed. But at the sentencing hearing, the trial court only
advised appellant that if she violated the terms of her post-release control, “the time
you’re on post-release control can be increased, the sanctions against you could be
increased, or you could be placed back in prison.” (Withdraw/Sentencing Tr. 29).
{¶45} The trial court is required to notify the defendant of the consequences of
violating post-release control. State v. Cologie, 7th Dist. No. 17 BE 0009, 2017-Ohio-
9217, ¶ 19 citing R.C. 2929.19(B)(2)(e). Pursuant to R.C. 2929.19(B)(2)(e), a trial court
is required to notify the defendant that if the defendant violates the terms of post-release
control, the parole board can issue a prison sentence of up to one-half of the stated
prison term originally imposed upon the offender. Therefore, the trial court erred by not
advising appellant that she could face up to one-half of the stated prison term if she
violated the terms of her post-release control.
{¶46} Addressing appellant’s argument that the sentence of mandatory post-
release control was error, appellant’s written guilty plea dated February 25, 2014 states
that she is subject to a mandatory post-release control period of three years. The trial
Case No. 17 MA 0034
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court made a similar finding at appellant’s sentencing hearing. (Withdraw/Sentencing Tr.
29). The trial court’s judgement entry dated February 6, 2017 also states that appellant
is subject to a mandatory three year period of post-release control.
{¶47} Pursuant to R.C. 2967.28(B)(3), a defendant who is convicted of a third
degree felony of violence is subject to a mandatory period of three years of post-release
control. Pursuant to R.C. 2967.28(C), felonies of the third degree that are not offenses
of violence are only subject to post-release control “if the parole board * * * determines
that a period of postrelease control is necessary for that offender.”
{¶48} Appellant’s convictions were for tampering with evidence and obstruction
of justice. These are not violent felonies. As such, the trial court’s sentence of three
years of mandatory post-release control is clearly and convincingly contrary to law. The
proper remedy when an appellant was not properly notified of post-release control by
the trial court is to vacate the post-release control portion of the sentence and remand
the matter for a limited R.C. 2929.131 hearing to correct the post-release control portion
of the sentence. State v. Paris, 7th Dist. No. 15 MA 0045, 2016-Ohio-8175, ¶ 5-8.
{¶49} Accordingly, appellant’s second assignment of error has merit and is
sustained.
{¶50} Appellant’s third assignment of error states:
THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT
TO CONSECUTIVE SENTENCES WITHOUT MAKING THE
APPROPRIATE STATUTORY FINDINGS IN ITS SENTENCING ENTRY
AND WHEN IT INCLUDED TWO SENTENCES FOR THE SAME COUNT
IN THE SENTENCING ENTRY.
{¶51} Appellant argues that the trial court made two errors in its sentencing
entry. First, the trial court merely recited the consecutive sentence statute in R.C.
2929.14(C)(4) in the sentencing entry without setting forth any actual findings. Second,
appellant argues that the trial court erred in issuing two separate sentences of
incarceration for the obstruction of justice conviction.
{¶52} The state concedes that the necessary findings for consecutive sentences
are not in the sentencing entry and requests that this assignment of error be sustained.
Case No. 17 MA 0034
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{¶53} As this assignment of error challenges the validity of appellant’s sentence,
it is subject to the same standard of review previously set forth addressing appellant’s
second assignment of error.
{¶54} Addressing the trial court’s imposition of two separate prison terms for one
charge, the trial court’s judgment entry dated February 6, 2017 sets forth two separate
sentences for appellant’s obstruction of justice conviction: one for three years in prison
and one for 24 months in prison. But the trial court issued an amended sentencing entry
on March 14, 2017 which corrected this mistake.
{¶55} Addressing the consecutive sentence findings, a trial court must find that
(1) consecutive sentences are necessary to protect the public from future crime or to
punish the offender, (2) that consecutive sentences are not disproportionate to the
seriousness of the defendant’s conduct and to the danger he poses to the public, and
(3) one of the findings described in subsections (a), (b), or (c) of R.C. 2929.14(C)(4).
State v. Jackson, 7th Dist. No. 14 MA 99, 2015-Ohio-1365.
{¶56} At the sentencing hearing, the trial court found that consecutive sentences
were necessary to protect the public from future crime and were not disproportionate to
the seriousness of the underlying offenses. (Withdraw/Sentencing Tr. 28). The trial court
also found that appellant “committed multiple offenses while on * * * community control
or judicial release,” and that appellant’s offenses “were part of a course of conduct * * *
and that [appellant’s] criminal history and conduct demonstrates that it’s necessary to
protect the public.” (Withdraw/Sentencing Tr. 28). It can be seen from these passages
that the trial court made the necessary findings for consecutive sentences and applied
R.C. 2929.14(C)(4)(a)-(c) at the sentencing hearing.
{¶57} But the trial court’s sentencing entry dated February 6, 2017 does not
apply any of the findings to appellant as mandated by Jackson. The trial court simply
incorporated the language of R.C. 2929.14(C)(4)(a)-(c) into the sentencing entry without
making findings regarding appellant. Furthermore, the trial court incorrectly listed the
consecutive sentencing statute as R.C. 2924.14(C)(4).
{¶58} This issue was addressed by this court in State v. Williams, 7th Dist. No.
16 MA 0041, 2017-Ohio-856. In Williams, the trial court made the required consecutive
sentence findings at the sentencing hearing. Id. at ¶ 15-16. But the sentencing entry in
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Williams only recited the language of R.C. 2929.14(C)(4) and did not apply those
findings to Williams. Id. at ¶ 17-18. We held that the proper remedy was to remand the
case to the trial court for the purpose of issuing a nunc pro tunc entry setting forth the
applicable consecutive sentence findings. Id. at ¶ 23.
{¶59} Accordingly, appellant’s third assignment of error has merit and is
sustained.
{¶60} For the reasons stated above, appellant’s convictions are hereby affirmed.
That portion of appellant’s sentence imposing post-release control is hereby reversed.
Appellant’s sentence is affirmed in all other respects. This matter is remanded for a
new sentencing hearing limited to the proper imposition of post-release control.
Additionally, on remand, the trial court is instructed to issue a nunc pro tunc entry that
includes the consecutive sentencing findings it made at appellant’s sentencing hearing.
Waite, J., concurs
Robb, P. J., concurs
Case No. 17 MA 0034
[Cite as State v. Fletcher, 2018-Ohio-3726.]
For the reasons stated in the Opinion rendered herein, appellant’s first
assignment of error lacks merit and is overruled. Appellant’s second and third
assignments of error have merit and are sustained. Appellant’s convictions are hereby
affirmed. That portion of appellant’s sentence imposing post-release control is hereby
reversed. Appellant’s sentence is affirmed in all other respects. This matter is
remanded for a new sentencing hearing limited to the proper imposition of post-release
control. Additionally, on remand, the trial court is instructed to issue a nunc pro tunc
entry that includes the consecutive sentencing findings it made at appellant’s
sentencing hearing. It is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Mahoning County, Ohio, is affirmed in part, reversed in
part, and remanded. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.