State v. Paris , 2016 Ohio 8175 ( 2016 )

[Cite as State v. Paris, 2016-Ohio-8175.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 15 MA 0045
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
RONALD PARIS )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 2014 CR 740
JUDGMENT: Convictions and Sentence Affirmed.
Postrelease Control Vacated.
Remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Ross T. Smith
Huntington Bank Building
26 Market Street, Suite 610
Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: December 15, 2016
[Cite as State v. Paris, 2016-Ohio-8175.]
WAITE, J.
{¶1} Appellant Ronald Paris appeals a March 9, 2015 Belmont County
Common Pleas Court sentencing entry. Appellant argues that the trial court stated at
the sentencing hearing that he “could be” subject to a three-year period of
postrelease control. Appellant argues that this contradicts the mandatory three-year
period of postrelease control stated in the court’s sentencing entry. The state
confesses judgment. Pursuant to State v. Ericson, 7th Dist. No. 09 MA 109, 2010-
Ohio-4315, Appellant’s argument has merit and a limited remand is granted only for
purposes of correcting the postrelease control portion of his sentence.
Factual and Procedural History
{¶2} Appellant was indicted on one count of intimidation, a felony of the third
degree in violation of R.C. 2912.03(A), (B). On January 23, 2015, Appellant entered
into a Crim.R. 11 plea agreement. On March 9, 2015, the trial court sentenced
Appellant to thirty months of incarceration with credit for 198 days served. At the
sentencing hearing, the trial court indicated that Appellant “could be subject to a
period of postrelease control for up to three years.” (Emphasis added.) (Sentencing
Hrg. Tr., p. 8.) In its sentencing entry, the trial court stated that the sentence was to
be: “followed by an [sic] mandatory period of post-release control of three (3) years.”
(Emphasis added.) (3/9/15 Sentencing Entry, p. 1.)
ASSIGNMENT OF ERROR
-2-
THE TRIAL COURT FAILED TO PROPERLY ADVISE THE
DEFENDANT THAT HE WAS SUBJECT TO MANDATORY POST-
RELEASE CONTROL AT SENTENCING.
{¶3} Appellant argues that the trial court entered inconsistent judgments as
the court referred to the imposition of postrelease control as discretionary at his
hearing and mandatory within its entry. Citing to Ericson, supra, Appellant argues
that the use of “could be subject to” when warning of mandatory postrelease control
is erroneous. The state confesses judgment.
{¶4} In relevant part, R.C. 2967.28(C) provides that “[a]ny sentence to a
prison term for a felony of the third, fourth, or fifth degree that is not subject to
division (B)(1) or (3) of this section shall include a requirement that the offender be
subject to a period of post-release control of up to three years after the offender's
release from imprisonment.” A trial court’s statement that an offender could be
subject to a three-year period of postrelease control is erroneous when the offender
is subject to a mandatory imposition of postrelease control. Ericson at ¶ 40.
{¶5} As Appellant pleaded guilty to a third-degree felony, he was subject to a
mandatory three-year period of postrelease control. At the sentencing hearing, the
trial court indicated that Appellant could be subject to a three-year period of
postrelease control. Pursuant to Ericson, this statement was erroneous.
{¶6} As to Appellant’s remedy,
Effective July 11, 2006, R.C. 2929.191 establishes a procedure to
remedy a sentence that fails to properly impose a term of postrelease
-3-
control. It applies to offenders who have not yet been released from
prison and who fall into at least one of three categories: those who did
not receive notice at the sentencing hearing that they would be subject
to postrelease control, those who did not receive notice that the parole
board could impose a prison term for a violation of postrelease control,
or those who did not have both of these statutorily mandated notices
incorporated into their sentencing entries. R.C. 2929.191(A) and (B).
For those offenders, R.C. 2929.191 provides that trial courts may, after
conducting a hearing with notice to the offender, the prosecuting
attorney, and the Department of Rehabilitation and Correction, correct
an original judgment of conviction by placing on the journal of the court
a nunc pro tunc entry that includes a statement that the offender will be
supervised under R.C. 2967.28 after the offender leaves prison and that
the parole board may impose a prison term of up to one-half of the
stated prison term originally imposed if the offender violates postrelease
control.
Ericson at ¶ 43, citing State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434 at
¶ 23. The R.C. 2929.191 hearing solely applies to the erroneous imposition of
postrelease control “as the General Assembly apparently intended to ‘leave
undisturbed the sanctions imposed upon the offender that are unaffected by the
court's failure to properly impose postrelease control at the original sentencing.’ ”
Ericson at ¶ 44.
-4-
{¶7} Accordingly, as Appellant was not properly notified of the mandatory
nature of his postrelease control, his sole assignment of error has merit and is
sustained.
Conclusion
{¶8} Appellant argues that the trial court erroneously referred to his
mandatory three-year period of postrelease control as discretionary at the sentencing
hearing. The state confesses judgment. Appellant’s convictions and sentence are
affirmed. However, we vacate the postrelease control portion of Appellant’s sentence
and remand the matter for a limited R.C. 2929.131 hearing to correct the postrelease
control portion of Appellant’s sentence.
Donofrio, P.J., concurs.
DeGenaro, J., concurs.