State v. Craft , 2019 Ohio 4662 ( 2019 )

[Cite as State v. Craft, 2019-Ohio-4662.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29420
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHRISTOPHER CRAFT COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2005-07-2434-D
DECISION AND JOURNAL ENTRY
Dated: November 13, 2019
SCHAFER, Judge.
{¶1} Defendant-Appellant, Christopher Craft, appeals from the judgment of the
Summit County Court of Common Pleas denying his motion to modify sentence. This Court
reverses.
I.
{¶2} On November 14, 2005, the trial court accepted Mr. Craft’s guilty plea and found
him guilty of involuntary manslaughter in violation of R.C. 2903.04, a felony of the first degree,
with a firearm specification. The trial court sentenced Mr. Craft to a total of thirteen years in
prison: ten years for involuntary manslaughter and three years on the firearm specification,
which the court ordered him to serve prior to and consecutively with the sentence imposed on the
involuntary manslaughter charge as required by law. Relevant to this appeal is the portion of the
trial court’s sentencing entry stating:
After release from prison, [Mr. Craft] is ordered subject to post-release control to
the extent the parole board may determine as provided by law.
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{¶3} After completing his sentence, Mr. Craft was released from prison. Thereafter, he
filed a “motion to modify sentence.” In the motion, he asserted that the trial court erred when it
sentenced him to an indefinite period of post-release control instead of imposing the statutory
five-year period of postrelease control. Consequently, Mr. Craft contended, the post-release
portion of his sentence was void as a matter of law. Mr. Craft moved the trial court for an entry
vacating the “void portion of its sentence imposing an indefinite term of post[-]release control *
* *.”
{¶4} The State did not oppose Mr. Craft’s motion to modify sentence. However, the
trial court issued an order denying the motion, finding that Mr. Craft “had notice of the
requirement of [p]ost-[r]elease [c]ontrol pursuant to the [j]ournal [e]ntry of November 14, 2005
as required by R.C. 2[96]7.28.” Mr. Craft timely appealed the trial court’s decision, raising a
single assignment of error for our review.
II.
Assignment of Error
The trial court erred in denying the motion to modify sentence when the
period of post[-]release control imposed was “to the extent the parole board
may determine as provided by law” although the Revised Code mandated a
term of post[-]release control of five years, and [Mr. Craft] had already
completed his term of incarceration.
{¶5} Mr. Craft argues that the trial court erred by denying his motion to modify the
portion of sentence imposing post-release control. Citing to R.C. 2967.28(B), Mr. Craft
contends that the trial court was required to advise him at sentencing that he was subject to a
mandatory term of five years post-release control. Because the trial court incorrectly advised
him that he would be subject to a period of post-release control to be determined by the parole
board, Mr. Craft asserts that the trial court should have recognized that the failure to properly
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advise him as to the mandatory period of five years of post-release control rendered that portion
of his sentence void. Further, because such an error cannot be remedied after the term of
incarceration has been completed, Mr. Craft contends that the trial court should have entered an
order terminating his pos-release control.
{¶6} In response, the State concedes that Mr. Craft was not properly notified of his
mandatory term of post-release control in the sentencing entry. The State further concedes that,
following Mr. Craft’s release from prison, his sentence is not subject to correction or revision
and, therefore, the judgment of the trial court should be reversed.
{¶7} When a trial court fails to impose a statutorily mandated term of post-release
control as part of a defendant’s sentence, that portion “of the sentence is void and must be set
aside.” State v. Keyes, 9th Dist. Lorain No. 14CA010561, 2015-Ohio-1757, ¶ 10, quoting State
v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, ¶ 26; see State v. Grimes, 151 Ohio St. 3d 19,
2017-Ohio-2927, ¶ 1, 8-11 (Analyzing the requirements for providing proper notice to a
defendant regarding the imposition of post-release control at a sentencing hearing and in the
subsequent sentencing entry.) If the error in sentencing is not addressed until after the defendant
has completed the prison term, the court then lacks the authority to impose post-release control.
Keyes at ¶ 10, quoting State v. Leasure, 9th Dist. Summit No. 25596, 2011-Ohio-3665, ¶ 7.
{¶8} Upon review of the record, we agree that the trial court did not provide the
statutorily required post-release control notice in its entry sentencing Mr. Craft. Therefore, the
trial court erred when it denied Mr. Craft the relief requested in his motion to modify sentence.
Accordingly, this Court “‘remands this matter to the trial court to vacate the portion [of Mr.
Craft’s] sentencing entry that attempted to impose post-release control’” and hereby instructs the
trial court to note on the record that, “‘because [Mr. Craft] has completed his prison sentence, he
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will not be subject to resentencing * * *.’” Id. at ¶ 14, quoting State v. Thomas, 9th Dist.
Summit No. 26699, 2013-Ohio-2078, ¶ 7.
III.
{¶9} Mr. Craft’s assignment of error is sustained. The judgment of the Summit County
Court of Common Please is reversed, and this matter is remanded to the trial court for further
proceedings consistent with this decision.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
JULIE A. SCHAFER
FOR THE COURT
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TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
MATT FORTADO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, assistant
Prosecuting Attorney, for Appellee.