State v. Adams , 2011 Ohio 6428 ( 2011 )

[Cite as State v. Adams, 2011-Ohio-6428.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 11 MA 65
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
DUJUAN ADAMS, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 00 CR 102.
JUDGMENT: Affirmed in Part; Reversed in Part;
And Remanded
.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Assistant Prosecuting Attorney
21 W. Boardman St., 6th Floor
Youngstown, OH 44503
For Defendant-Appellant: DuJuan Adams, Pro-se
#395-395
Trumbull Correctional Institution
5701 Burnett Road
P.O. Box 901
Leavittsburgh, OH 44430
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: December 8, 2011
[Cite as State v. Adams, 2011-Ohio-6428.]
DeGenaro, J.
{¶1} Pro-se Defendant-Appellant, DuJuan Adams, appeals the March 31, 2011
judgment of the Mahoning County Court of Common Pleas overruling his Pro-se "Motion
for Sentencing." On appeal, Adams contends that the court erred by overruling his
motion because his sentencing entry fails to comport with State v. Baker, 119 Ohio St. 3d
197, 2008-Ohio-3330, 893 N.E.2d 163, and because it failed to properly impose post-
release control.
{¶2} Upon review, Adams' arguments are meritorious in part. Adams is entitled
to a sentencing entry that comports with Baker and to a resentencing hearing and revised
sentencing entry to correct his post-release control status pursuant to R.C. 2929.191(C),
both of which apply retroactively to Adams’ 2000 conviction and 2006 Foster
resentencing. Accordingly, the judgment of the trial court is affirmed in part, reversed in
part and remanded for further proceedings.
Facts and Procedural History
{¶3} On August 28, 2000, Adams was convicted of two counts of attempted
murder (R.C. 2923.02(A)(E) and 2903.02(A)(D)), first-degree felonies, both with R.C.
2941.145(A) firearm specifications, following a jury trial in the Mahoning County Court of
Common Pleas. Adams filed a timely direct appeal with this court, which was dismissed
for failure to prosecute. This court granted Appellant's delayed application for reopening
his appeal on April 22, 2005, and ultimately affirmed his convictions but vacated his
sentence pursuant to State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470.
See State v. Adams, 7th Dist. No. 00 CA 211, 2006-Ohio-1761. On October 20, 2006,
pursuant to the Foster remand, the trial court resentenced Adams, and this court affirmed
on appeal. State v. Adams, 7th Dist. No. 06 MA 179, 2007-Ohio-5352.
{¶4} On March 28, 2011, Adams filed a pro-se "Motion for Sentencing," in the
trial court. Therein he contended that his sentence must be declared void and that the
trial court must conduct a de novo sentencing hearing because his October 2006
sentencing entry failed to state the method by which he was convicted, pursuant to
Crim.R. 32, and was silent as to post-release control. After the State responded, the trial
court overruled Adams' motion on April 1, 2011 and Adams appealed. This court
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overruled Adams' motion for appointment of counsel since this is a post-conviction appeal
from the denial of a resentencing motion.
Deficiency in Sentencing Entry pursuant to State v. Baker
{¶5} In his first of two assignments of error, Adams asserts:
{¶6} "The trial court erred when it did not grant a new sentencing hearing
pursuant to State v. Baker, as the journal entry did not contain a METHOD OF
CONVICTION."
{¶7} Adams seeks to compel the trial court to hold a new sentencing hearing
because his October 26, 2006 sentencing entry does not state the method of conviction
pursuant to Crim.R. 32(C), as explained by the Ohio Supreme Court in Baker. "A
judgment of conviction is a final appealable order under R.C. 2505.02 when it sets forth
(1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is
based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the
clerk of court. (Crim.R.32(C), explained.)" Id. at syllabus.
{¶8} Adams' sentencing entry does not specify the manner of his conviction, i.e.,
following a jury verdict. Instead it states, in pertinent part: "The Court finds that the
defendant has been convicted of Two Counts of Attempted Murder, violations of Ohio
Revised Code 2923.02(A)(E) and 2903.02(A)(D), Felonies of the First Degree, both with a
firearm specification in violation of R.C. 2941.145(A)." (Id., emphasis added.)
{¶9} Adams asserts that the remedy for this error is a de novo sentencing
hearing. However, as the State correctly points out, the Ohio Supreme Court has recently
clarified that where a defendant's sentencing entry does not comply with Crim.R. 32(C),
the proper remedy is to issue a nunc pro tunc sentencing entry that does comply with the
rule. State ex rel. DeWine, 128 Ohio St. 3d 236, 2011-Ohio-235, 943 N.E.2d 535, at ¶18.
"[I]f a judgment entry of conviction does not indicate how a defendant's conviction was
effected, whether it was by a guilty plea, a no-contest plea upon which the court has
made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict
resulting from a jury trial, and if it is not corrected by the court sua sponte, as was done in
this case, a party may obtain a correction to the judgment entry by a motion filed with the
-3-
trial court to correct the judgment of conviction." State v. Lester, Slip Opinion No. 2011-
Ohio-5204, at ¶16.
{¶10} Accordingly, Adams' first assignment of error is meritorious in part. While
Adams is not entitled to a new sentencing hearing on these grounds, he is entitled to a
corrected sentencing entry that comports with Baker.
Sentencing Entry Devoid of Statement regarding Post-Release Control
{¶11} In his second and final assignment of error, Adams asserts:
{¶12} "The trial court erred by overruling controlling law. see: State v. Bezak, 114
Ohio St. 3d 94; State v. Jordan, 104 Ohio St. 3d 21; State v. Simpkins, 117 Ohio St. 3d
420."
{¶13} Adams argues that the trial court erred in overruling his resentencing motion
because his sentencing entry did not include his applicable term of post-release control.
The State concedes the error.
{¶14} R.C. 2967.28(B) requires that a sentencing court imposing a prison term on
first-or second-degree felony offenders and certain other offenders "shall include a
requirement that the offender be subject to a period of post-release control imposed by
the parole board after the offender's release from imprisonment." (Emphasis added.)
Pursuant to R.C. 2967.28(B)(1), first-degree felonies require a five-year mandatory period
of post-release control.
{¶15} In State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434, 920 N.E.2d 958,
the Ohio Supreme Court held that for "sentences imposed on and after July 11, 2006, in
which a trial court failed to properly impose post-release control, trial courts shall apply
the procedures set forth in R.C. 2929.191." Id. at paragraph two of the syllabus. Further,
in Singleton, the Court specifically recognized that R.C. 2929.191 does not afford de novo
sentencing hearings for defendants sentenced after July 11, 2006, but rather that the
resentencing pertains only to the flawed imposition of post-release control. Id. at ¶24.
{¶16} Adams was sentenced on October 20, 2006, and subject to the sentence-
correction mechanism of R.C. 2929.191. See Singleton at ¶27. The fact that his original
sentence occurred before July 11, 2006 does not affect the applicability of R.C.
-4-
2929.191(C) to this case. See State v. Craddock, 8th Dist. No. 94387, 2010-Ohio-5782
(applying R.C. 2929.191(C) where defendant was originally sentenced before July 11,
2006, but resentenced de novo pursuant to a Foster remand after that date.)
{¶17} "At any time before the offender is released from imprisonment under that
term and at a hearing conducted in accordance with division (C) of this section, the court
may prepare and issue a correction to the judgment of conviction that includes in the
judgment of conviction the statement that the offender will be supervised under section
2967.28 of the Revised Code after the offender leaves prison." R.C. 2929.191(A)(1).
{¶18} "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. * * * 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." R.C. 2929.191(C).
{¶19} Thus, Adams' second assignment of error is meritorious in part. He is
entitled to a resentencing hearing regarding the limited issue of post-release control.
Further, the trial court must enter a corrected sentencing entry that states Adams' post-
release control requirements along with the manner of his conviction pursuant to Baker,
supra. Accordingly, the judgment of the trial court is affirmed in part, reversed in part and
remanded for further proceedings pursuant to R.C. 2929.191(C).
Donofrio, J., concurs.
Vukovich, J., concurs.