State v. Thompson , 2016 Ohio 8401 ( 2016 )

[Cite as State v. Thompson, 2016-Ohio-8401.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 3-16-01
v.
PATRICK A. THOMPSON, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 3-16-12
v.
PATRICK A. THOMPSON, OPINION
DEFENDANT-APPELLANT.
Appeals from Crawford County Common Pleas Court
Trial Court No. 13-CR-0233
Judgments Affirmed
Date of Decision: December 27, 2016
APPEARANCES:
Adam Charles Stone for Appellant
Ryan M. Hoovler for Appellee
Case Nos. 3-16-01 and 3-16-12
PRESTON, J.
{¶1} Defendant-appellant, Patrick A. Thompson (“Thompson”), appeals the
December 9, 2015 and June 20, 2016 judgment entries of the Crawford County
Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} On November 13, 2013, the Crawford County Grand Jury indicted
Thompson on two counts: Count One of possession of drugs in violation of R.C.
2925.11(A)(C)(6)(b), a fourth-degree felony; and Count Two of engaging in a
pattern of corrupt activity in violation of R.C. 2923.32(A)(1), a second-degree
felony. (Doc. No. 1). The case was assigned case number 13-CR-0233. (Id.). On
November 18, 2013, Thompson appeared for arraignment and entered pleas of not
guilty. (Doc. Nos. 5, 6).
{¶3} On January 16, 2014, a change-of-plea hearing was held. (Doc. No.
12). Pursuant to a negotiated plea agreement, Thompson pled guilty to the counts
of the indictment in case number 13-CR-0233, and pled guilty to a count in another
case.1 (Id.). The trial court accepted Thompson’s guilty pleas and found Thompson
guilty. (Id.).
{¶4} That same day, the trial court sentenced Thompson, based on the joint-
sentencing recommendation of the parties, to 12 months in prison as to the count in
the other case, 11 months in prison as to Count One and 3 years in prison as to Count
1
Thompson pled guilty to a receiving-stolen-property count in case number 12-CR-0166—a fifth-degree
felony under R.C. 2913.51(A).
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Case Nos. 3-16-01 and 3-16-12
Two in case number 13-CR-0233, and ordered that Thompson serve the terms
consecutively for an aggregate sentence of 4 years and 11 months. (Doc. No. 13).
{¶5} On May 11, 2015, Thompson, pro se, filed a motion for judicial release.
(Doc. No. 23). On May 14, 2015, the State filed its response to Thompson’s motion
and recommended that Thompson be judicially released from prison. (Doc. No.
24). On September 10, 2015, the trial court granted Thompson’s motion for judicial
release, suspended the remainder of Thompson’s prison sentence, and released
Thompson under conditions of judicial release. (Doc. No. 28).2
{¶6} On November 9, 2015, the State filed a motion requesting a hearing to
determine whether there was probable cause to revoke Thompson’s judicial release
based on Thompson’s violation of the conditions of his judicial release. (Doc. No.
30). After determining on November 10, 2015 that there was probable cause that
Thompson violated the conditions of his judicial release, a hearing was held on
December 7, 2015 to determine whether Thompson violated the conditions of his
judicial release. (Doc. Nos. 33, 36); (Dec. 7, 2015 Tr. at 1). On December 9, 2015,
the trial court concluded that Thompson violated the conditions of his judicial
2
The trial court issued a nunc pro tunc entry on September 17, 2015 correcting its September 10, 2015 entry
granting Thompson’s judicial release to reflect that its entry granting Thompson’s judicial release should be
dated September 3, 2015. (Doc. No. 29).
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Case Nos. 3-16-01 and 3-16-12
release and reimposed the remainder of Thompson’s original sentence. (Doc. No.
36).3
{¶7} On January 25, 2016, Thompson, pro se, filed a motion for leave to file
a delayed appeal. (Doc. No. 40). Thompson filed his notice of appeal with his
motion for leave to file a delayed appeal. (Doc. No. 41). The State filed with this
court a memorandum in opposition to Thompson’s motion on March 2, 2016. This
court granted Thompson’s motion for leave to file a delayed appeal on March 30,
2016. That appeal was assigned appellate case number 3-16-01.
{¶8} While Thompson’s appeal was pending with this court, the State filed
on May 18, 2016 a “Motion on Defendant’s Motion to Correct a Judgment of
Conviction.”4 (Doc. No. 53). After a hearing on June 14, 2016, the trial court issued
an entry on June 20, 2016 informing Thompson of his postrelease-control sanction.
(Doc. No. 59). Thompson, represented by counsel, filed an appeal from that entry
on June 21, 2016. (Doc. No. 60). That appeal was assigned appellate case number
3-16-12. This court consolidated appellate case numbers 3-16-12 and 3-16-01.
{¶9} Thompson raises three assignments of error. For ease of our discussion,
we will first address together Thompson’s second and first assignments of error,
followed by his third assignment of error.
3
On February 9, 2016, the trial court issued a nunc pro tunc entry correcting its December 9, 2015 entry to
state that Thompson was convicted of a fourth-degree felony under Count One of the indictment in case
number 13-CR-0233, not a fifth-degree felony. (Doc. No. 47).
4
The record does not reflect that Thompson filed a motion to correct a judgment of conviction.
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Case Nos. 3-16-01 and 3-16-12
Assignment of Error No. II
The trial court’s findings of fact under R.C. §2929.11, R.C.
§2929.112, R.C. §2929.13(E)(2), R.C.§2929.14, and
R.C.§2929.15(B) are not supported by clear and convincing
evidence in the record of the proceedings held by the trial court
on May 25, 2016.
Assignment of Error No. I
The trial court committed plain error in violation R.C.§2929.13
(E)(2) when it revoked Appellant’s community control and
sanctioned him to any prison term in connection with the violation
of Appellant’s community control in direct contravention of the
statute’s prohibition.
{¶10} In his second assignment of error, Thompson argues that the trial
court’s reimposition of the remainder his original sentence is clearly and
convincingly unsupported by the record. In his first assignment of error, Thompson
argues that the trial court erred by reimposing the remainder of his original prison
term instead of ordering a sanction in accordance with R.C. 2929.13(E)(2). In
particular, he argues that the trial court should not have reimposed the remainder of
his prison term because Thompson’s violation of the conditions of his judicial
release is based on his personal drug abuse.
{¶11} A trial court’s decision to revoke a defendant’s judicial release based
on a violation of the conditions of his judicial release will not be disturbed absent
an abuse of discretion. State v. Arm, 3d Dist. Union Nos. 14-14-03 and 14-14-04,
2014-Ohio-3771, ¶ 22, citing State v. Jenkins, 4th Dist. Scioto No. 10CA3389,
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Case Nos. 3-16-01 and 3-16-12
2011-Ohio-6924, ¶ 9.5 An abuse of discretion implies that the trial court acted
unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St. 2d 151,
157-158 (1980).
{¶12} For the reasons that follow, we conclude that the trial court did not
abuse its discretion by revoking Thompson’s judicial release and reimposing
Thompson’s original term of incarceration with credit for time already served.
Ohio’s judicial-release statute, R.C. 2929.20, provides, in relevant part:
If the court grants a motion for judicial release under this section, the
court shall order the release of the eligible offender, shall place the
eligible offender under an appropriate community control sanction,
under appropriate conditions, and under the supervision of the
5
Thompson urges this court to apply the standard of review in State v. Marcum to the reimposition of the
remainder of a defendant’s original sentence under R.C. 2929.20(K) after he violates the conditions of his
judicial release. See 146 Ohio St. 3d 516, 2016-Ohio-1002. Under Marcum, appellate courts must modify or
vacate original sentences if there is clear and convincing evidence that the sentence is unsupported by the
record or is contrary to law. Id. at ¶ 22. This court addressed on numerous occasions the difference between
an original sentence of community control and early judicial release. See, e.g., State v. Johnson, 3d Dist.
Seneca Nos. 13-15-08 and 13-15-09, 2015-Ohio-4802, ¶ 18. “This Court has previously stated that ‘“the
rules dealing with a violation of an original sentence of community control (R.C. 2929.15) should not be
confused with the sections of the Revised Code regarding early judicial release (R.C. 2929.20) even though
the language of R.C. 2929.20[(K)] contains the term ‘community control’ in reference to the status of an
offender when granted early judicial release.”’” State v. Jones, 3d Dist. Mercer Nos. 10-07-26 and 10-07-
27, 2008-Ohio-2117, ¶ 12, quoting State v. Alexander, 3d Dist. Union No. 14-07-45, 2008-Ohio-1485, ¶ 7,
quoting State v. Mann, 3d Dist. Crawford No. 3-03-42, 2004 Ohio 4703, ¶ 6. “Under R.C. 2929.15, a
defendant’s original sentence is community control and he will not receive a term of incarceration unless he
violates the terms of his community control.” Id., citing Alexander at ¶ 7, citing State v. McConnell, 143
Ohio App. 3d 219, 224-225 (3d Dist.2001), citing State v. Gardner, 3d Dist. Union No. 14-99-24, 1999 WL
1075424, *2-3 (Dec. 1, 1999). However, “when a defendant is granted judicial release under R.C. 2929.20,
he ‘“has already served a period of incarceration, and the remainder of that prison sentence is suspended
pending either the successful completion of a period of community control or the defendant’s violation of a
community control [as a condition of supervision].”’” Id., quoting Alexander at ¶ 7, quoting Mann at ¶ 8,
citing R.C. 2929.20(K). Because Thompson was granted judicial release, the Marcum standard of review is
not the appropriate standard of review for the issues presented in Thompson’s second and first assignments
of error. Instead, R.C. 2929.20 controls and we will address his argument accordingly. See id. at ¶ 13.
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Case Nos. 3-16-01 and 3-16-12
department of probation serving the court and shall reserve the right
to reimpose the sentence that it reduced if the offender violates the
sanction. If the court reimposes the reduced sentence, it may do so
either concurrently with, or consecutive to, any new sentence imposed
upon the eligible offender as a result of the violation that is a new
offense.
R.C. 2929.20(K).6
{¶13} “Accordingly, if a defendant violates the conditions of judicial release,
the trial court is limited to reimposing the original term of incarceration with credit
for time already served.” State v. Jones, 3d Dist. Mercer Nos. 10-07-26 and 10-07-
27, 2008-Ohio-2117, ¶ 15. “The trial court may not alter the defendant’s original
sentence except to reimpose the sentence consecutively to or concurrently with a
new sentence it imposes as a result of the judicial release violation that is a new
criminal offense.” Id. It is error for a trial court, after revoking judicial release, to
impose a greater or lesser sentence than the original sentence. State v. Salter, 10th
Dist. Franklin No. 14AP-211, 2014-Ohio-5524, ¶ 8. See also Jones at ¶ 15.
{¶14} Because the trial court is limited to reimposing the remainder of the
defendant’s original sentence when the defendant’s judicial release is revoked,
Thompson’s argument that the trial court was required to fully consider the statutory
6
Prior to its 2009, amendment, the portion of the judicial-release statute currently reflected in R.C.
2929.20(K) was codified under R.C. 2929.20(I). See Am.Sub.H.B. No. 130, 2008 Ohio Laws 173.
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Case Nos. 3-16-01 and 3-16-12
factors as if it were sentencing him anew is misplaced. See State v. Mann, 3d Dist.
Crawford No. 3-03-42, 2004-Ohio-4703, ¶ 15-16. When the trial court is
reimposing the remainder of the defendant’s original sentence after revoking his
judicial release, the trial court need not make the statutory findings that are required
when a felony sentence is originally imposed. Id. at ¶ 16, citing State v. Gardner,
3d Dist. Union No. 14-99-24, 1999 WL 1075424, *3 (Dec. 1, 1999) (“if the
conditions of that release are violated, the statute clearly provides that the trial court
may ‘reimpose’ the suspended term without making the findings that are required
to issue an original felony sentence”). Accordingly, Thompson’s argument is
erroneous, and his second assignment of error is overruled.
{¶15} For similar reasons, Thompson’s first assignment of error is erroneous.
That is, R.C. 2929.13(E)(2) sanctions are not applicable when a trial court is
revoking a defendant’s judicial release under R.C. 2929.20. R.C. 2929.13(E)(2)
provides:
(2) If an offender who was convicted of or pleaded guilty to a felony
violates the conditions of a community control sanction imposed for
the offense solely by reason of producing positive results on a drug
test or by acting pursuant to division (B)(2)(b) of section 2925.11 of
the Revised Code with respect to a minor drug possession offense, the
court, as punishment for the violation of the sanction, shall not order
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Case Nos. 3-16-01 and 3-16-12
that the offender be imprisoned unless the court determines on the
record either of the following:
(a) The offender had been ordered as a sanction for the felony to
participate in a drug treatment program, in a drug education program,
or in narcotics anonymous or a similar program, and the offender
continued to use illegal drugs after a reasonable period of participation
in the program.
(b) The imprisonment of the offender for the violation is consistent
with the purposes and principles of sentencing set forth in section
2929.11 of the Revised Code.
{¶16} As we stated above, when a trial court concludes that a defendant
violated the conditions of his judicial release, the trial court cannot impose on the
defendant a sanction other than the remainder of the defendant’s original sentence.7
See R.C. 2929.20(K). See also Jones, 2008-Ohio-2117, at ¶ 15. Stated differently,
imposition of a sanction under R.C. 2929.13(E)(2) applies only when a defendant
violates the conditions of a community-control sanction under R.C. 2929.15, not
when a defendant violates the conditions of his or her judicial release under R.C.
2929.20. Although this court in State v. Riddle considered the merits of whether the
7
If the trial court reimposes the defendant’s reduced sentence, the trial court may also impose consecutively
or concurrently to the reimposed sentence a new sentence for the violation of the conditions of the defendant’s
judicial release. R.C. 2929.20(K).
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Case Nos. 3-16-01 and 3-16-12
trial court erred by not imposing a sanction under R.C. 2929.13(E)(2) when Riddle
violated the conditions of his judicial release under R.C. 2929.20, it is unnecessary
to consider the merits of Thompson’s argument because the imposition of a sanction
under R.C. 2929.13(E)(2) does not apply to the revocation of judicial release under
R.C. 2929.20. See 3d Dist. Defiance No. 4-02-18, 2003-Ohio-478, ¶ 24-29.
Thompson’s first assignment of error is overruled.
Assignment of Error III
The trial court lacked jurisdiction to hold the hearing, held herein
on June 14, 2016, and modify its final sentencing order advising
the Appellant of the mandatory terms and conditions of Post-
Release Control after the Appellant timely filed his Notice of
Appeal and the case has been certified for appeal.
{¶17} In his third assignment of error, Thompson argues that the trial court
lacked jurisdiction while his appeal of the trial court’s judicial-release-revocation
entry was pending before this court to take action on the State’s “Motion on
Defendant’s Motion to Correct a Judgment of Conviction.” (See Doc. No. 53). In
that motion, the State requested “a hearing on Defendant’s Motion to Correct
Judgment of Conviction.” (Id.). As we previously noted, the record does not reflect
that Thompson filed a motion to correct his judgment of conviction in this case.
Nevertheless, at the hearing on the State’s motion, the trial court characterized the
State’s motion as “a motion to correct” “a technical issue with the sentencing” and
proceeded to notify Thompson of his postrelease-control sanction. (See June 14,
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2016 Tr. at 3, 6-7). The State did not object to the trial court’s characterization of
its motion.
{¶18} “[I]n order to comply with separation-of-powers concerns and to fulfill
the requirements of the postrelease-control-sentencing statutes, especially R.C.
2929.19(B) and 2967.28, a trial court must provide statutorily compliant notification
to a defendant regarding postrelease control at the time of sentencing, including
notifying the defendant of the details of the postrelease control and the
consequences of violating postrelease control.” State v. Qualls, 131 Ohio St. 3d 499,
2012-Ohio-1111, ¶ 18. “When a judge fails to properly impose statutorily mandated
postrelease control as part of a defendant’s sentence, the postrelease-control
sanction is void.” State v. Holdcroft, 137 Ohio St. 3d 526, 2013-Ohio-5014,
paragraph two of the syllabus, applying State v. Fischer, 128 Ohio St. 3d 92, 2010-
Ohio-6238.
{¶19} Generally, trial courts lack authority to reconsider their own valid
judgments in criminal cases. Qualls at ¶ 13. However, trial courts retain continuing
jurisdiction (1) “under R.C. 2929.191 to correct a void sentence at any time by
holding a hearing as mandated under that section if the sentence was imposed after
July 11, 2006, so long as the offender has not completed the prison term imposed in
his original sentence” and (2) “‘to correct clerical errors in judgments by nunc pro
tunc entry to reflect what the court actually decided.’” State v. Williams, 12th Dist.
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Case Nos. 3-16-01 and 3-16-12
Warren No. CA2011-08-085, 2012-Ohio-2152, ¶ 24, citing State v. Perry, 12th Dist.
Butler Nos. CA2011-01-008 and CA2011-02-017, 2011-Ohio-3637, ¶ 19; Qualls at
¶ 13, quoting State ex rel. Womack v. Marsh, 128 Ohio St. 3d 303, 2011-Ohio-229,
¶ 13, citing State ex rel. Cruzado v. Zeleski, 111 Ohio St. 3d 353, 2006-Ohio-5795,
¶ 18-19, superseded by statute on other grounds, State v. Singleton, 124 Ohio St. 3d
173, 2009-Ohio-6434, and citing Crim.R. 36.
{¶20} Moreover, “[o]nce an appeal is taken, the trial court is divested of
jurisdiction except ‘over issues not inconsistent with that of the appellate court to
review, affirm, modify or reverse the appealed judgment, such as the collateral
issues like contempt.’” State ex rel. State Fire Marshal v. Curl, 87 Ohio St. 3d 568,
570 (2000), quoting State ex rel. Special Prosecutors v. Judges, Court of Common
Pleas, 55 Ohio St. 2d 94, 97 (1978). See also Williams at ¶ 21-26.
{¶21} We need not reach Thompson’s argument because his sentence is
neither void nor contains a clerical error—therefore, his original sentence is valid,
and he was not prejudiced by any “re-notification” of his postrelease-control
sanction. “‘When sentencing a felony offender to a term of imprisonment, a trial
court is required to notify the offender at the sentencing hearing about postrelease
control and is further required to incorporate that notice into its journal entry
imposing sentence.’” See State v. Davenport, 3d Dist. Defiance Nos. 4-12-05 and
4-12-06, 2012-Ohio-4013, ¶ 19, quoting State v. Jordan, 104 Ohio St. 3d 21, 2004-
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Case Nos. 3-16-01 and 3-16-12
Ohio-6085, paragraph one of the syllabus, superseded by statute on other grounds,
Singleton.
{¶22} In this case, Thompson did not provide for the record a transcript of
the sentencing hearing. As such, we must presume the propriety of that hearing and
find that Thompson was properly notified of postrelease control at the sentencing
hearing. See State v. Murray, 6th Dist. Lucas No. L-10-1059, 2012-Ohio-4996, ¶
25, citing State v. Tribue, 6th Dist. Lucas Nos. L-10-1250 and L-10-1251, 2011-
Ohio-4282, ¶ 9. See also State v. Ball, 5th Dist. Licking No. 13-CA-17, 2013-Ohio-
3443, ¶ 24-25, citing Murray at ¶ 24. Therefore, “we address only the issue of
whether the trial court provided the notice required by law in the sentencing
judgment.” Murray at ¶ 25. See also Tribue at ¶ 9 (limiting appellate review of
Tribue’s postrelease-control argument to the sentencing entry because Tribue did
not provide a transcript of the sentencing hearing), citing Knapp v. Edwards
Laboratories, 61 Ohio St. 2d 197, 1999 (1980).
{¶23} Thompson’s sentencing entry provides the following notice regarding
postrelease control:
FOR SECOND DEGREE FELONY – The Defendant
understands that upon completion of his/her prison term, he/she shall
be subject to a MANDATORY period of post-release control of three
years as determined by the Parole Board pursuant to O.R.C. 2967.28.
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In the other counts, he/she shall be subject to a period of post-
release control of three years as determined by the Parole Board
pursuant to O.R.C. 2967.28.
(Emphasis sic.) (Doc. No. 13).8
{¶24} This court previously concluded that a postrelease-control sanction in
a sentencing entry which “did not explicitly specify that the parole board could
impose an additional prison term of up to one-half of his prison sentence for a
violation of post-release control” is insufficient notice under Ohio law. See State v.
Perkins, 3d Dist. Seneca Nos. 13-10-50 and 13-10-51, 2011-Ohio-3129, ¶ 21. That
conclusion is different from what is required under Ohio law. In reaching that
conclusion, we stated, “The specific post-release control sanctions must be included
in the judgment entry journalized by the court, along with the potential penalty for
violating the sanctions.” (Emphasis added.) Id., citing Singleton at ¶ 11. Ohio
sentencing law does not require the “potential penalty for violating the [postrelease-
control] sanctions” to be included in the judgment entry of sentence. Instead,
R.C. 2929.19 mandates that a court, when imposing sentence, notify
the offender at the hearing that he will be supervised pursuant to R.C.
2967.28 and that the parole board may impose a prison term of up to
8
Under R.C. 2967.28, Thompson is subject to a mandatory three-year period of postrelease control for his
second-degree felony conviction, and is subject to a discretionary three-year period of postrelease control for
his fourth-degree-felony conviction. See R.C. 2967.28(B)(2), (C). See also Davenport, 2012-Ohio-4013, at
¶ 20.
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Case Nos. 3-16-01 and 3-16-12
one-half of the prison term originally imposed on the offender if he
violates supervision or a condition of postrelease control.
(Emphasis added.) Singleton at ¶ 11, overruled on other grounds, Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, citing R.C. 2929.19(B)(3)(c), (e). “And the imposed
postrelease-control sanctions are to be included in the judgment entry journalized
by the court.” Id.
{¶25} The postrelease-control sanctions that the trial court imposed on
Thompson are included in Thompson’s sentencing entry. See Singleton at ¶ 11. See
also State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831, ¶ 66-67 (applying the
Singleton framework regarding sufficient postrelease-control notice at the
sentencing hearing and in the sentencing entry).
{¶26} Indeed, the Supreme Court of Ohio stated that adequate notice of
postrelease control puts a reasonable person in the position of the defendant on
notice that postrelease control could be imposed following the expiration of the
person’s sentence. See Ketterer at ¶ 72, citing Watkins v. Collins, 111 Ohio St. 3d
425, 2006-Ohio-5082, ¶ 51. See also State v. Phillips, 3d Dist. Logan No. 8-06-14,
2007-Ohio-686, ¶ 32 (“[T]he preeminent purpose of R.C. 2967.28 [is] that offenders
subject to post-release control know at sentencing that their liberty could continue
to be restrained after serving their initial sentences.”), quoting Watkins at ¶ 52.
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Case Nos. 3-16-01 and 3-16-12
{¶27} Thompson’s sentencing entry is sufficient to put a reasonable person
in Thompson’s position on notice that postrelease control could be imposed
following the expiration of Thompson’s sentence. See State v. Clark, 2d Dist. Clark
No. 2012 CA 16, 2013-Ohio-299, ¶ 72-73 (concluding that Clark’s sentencing entry
was sufficient to put him on notice that “‘the courts were authorizing postrelease
control’” because “the trial court imposed the correct lawful term of post-release
control and informed him of the correct specific penalties for violating post-release
control” and imposed, in the sentencing entry, “the proper lawful term of post
release control and ordered the defendant to serve any post-release control ordered
by the Parole Board and any prison term for violation of that post-release control”),
citing Watkins at ¶ 51; Ball, 2013-Ohio-3443, at ¶ 25 (concluding that “the language
in Ball’s * * * sentencing entry [stating, “After imposition of sentence the Court
notified the Defendant orally and in writing [of] the applicable periods of post-
release control,”] combined with the presumption of regularity with which we must
accord the oral notification at Ball’s sentencing hearing, was sufficient to give
appellant notice of the post release control sanction”); Murray, 2012-Ohio-4996, at
¶ 25 (concluding that the language in Murray’s sentencing entry stating “‘Defendant
given notice of appellate rights under R.C. 2953.08 and post release control notice
under R.C. 2929.19(B)(3) and R.C. 2967.28” was sufficient to put Murray on notice
of his postrelease-control sanction); State v. Darks, 10th Dist. Franklin No. 12AP-
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Case Nos. 3-16-01 and 3-16-12
578, 2013-Ohio-176, ¶ 9, 11-13 (concluding that Darks’ sentencing entry, which
referenced the sentencing statute, R.C. 2929.19(B)(3)(c), (d), and (e), sufficiently
notified him of his postrelease-control sanction). See also Cruzado, 111 Ohio St. 3d
353, 2006-Ohio-5795, at ¶ 26 (noting that, notwithstanding that the trial court
misstated Cruzado’s postrelease-control term, the trial court provided “some notice”
to Cruzado that he would be subject to postrelease control). We conclude that
Thompson’s original sentencing entry is valid—that is, Thompson’s original
sentencing entry sufficiently notified him of his postrelease-control sanction
because it includes the postrelease-control sanction imposed by the trial court.
{¶28} Because Thompson’s original sentencing entry is not void and does
not contain a clerical error, there is no need for a subsequent sentencing entry. See
Clark at ¶ 73 (concluding that “there is no need for a subsequent entry” because
“Clark’s original sentence was not void”). As such, the subsequent entry is
surplusage and has no legal effect. See Cox v. Fogle, 84 Ohio App. 179, 182-183
(2d Dist.1948) (concluding that a portion of the “probation entry” “was surplusage
and of no legal effect”); State v. Norway, 3d Dist. Hancock No. 5-85-13, 1985 WL
8090, *6 (July 23, 1986) (“The actual entry of May 14, 1985 [denying Noway’s
motion to suppress evidence] was surplusage by the time it was filed” because
Norway’s motion to suppress evidence was previously “overruled by implication by
virtue of the admission of evidence at trial.”); State v. Lindsay, 1st Dist. Hamilton
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Case Nos. 3-16-01 and 3-16-12
No. C-970525, 1998 WL 226396, *1 (May 8, 1998) (concluding that the “trial court
has added nothing by labeling Lindsay a sexually oriented offender in its entry-this
part of the entry is only surplusage. Though the trial court should have limited its
entry to the sole issue of whether Lindsay is a sexual predator, we hold that Lindsay
has suffered no prejudice by the trial court’s entry here.”). See also Simpson v. Bd.
of Rev., 10th Dist. Franklin No. 76AP-850, 1976 WL 190471, *1 (Dec. 23, 1976)
(concluding that the original entry filed by the court affirming the decision of the
Board of Review controlled and that “the second judgment entry was a mere
surplusage”); Rossetti v. Sears, Roebuck and Co., 10th Dist. Franklin No. 81AP-
452, 1981 WL 3341, *1 (July 9, 1981) (“We are unable to determine why the April
20 journal entry was filed; at any rate, it is surplusage.”). Therefore, any arguments
related to Thompson’s postrelease-control notification are not well taken, and
Thompson’s third assignment of error is overruled.
{¶29} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
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