State v. Bankston , 2019 Ohio 4637 ( 2019 )

[Cite as State v. Bankston, 2019-Ohio-4637.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
SYMEON BANKSTON,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 MA 0027
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 18-CR-376
BEFORE:
David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Reversed and Remanded.
Atty. Paul J. Gains, Mahoning County Prosecutor, and Atty. Ralph M. Rivera, Assistant
Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
for Plaintiff-Appellee and
Atty. Alexander Keane P.O. Box 92, Canfield, Ohio 44446, for Defendant-Appellant.
–2–
Dated: November 4, 2019
D’Apolito, J.
{¶1} Appellant, Symeon Bankston, appeals from the February 8, 2019 judgment
of the Mahoning County Court of Common Pleas, sentencing him to a jointly
recommended prison term of nine months in prison, with 317 days of credit for time
served, for having weapons under disability following a no contest plea.1 At issue on
appeal is whether the trial court properly imposed post-release control. For the reasons
stated, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
{¶2} On April 26, 2018, Appellant was indicted by the Mahoning County Grand
Jury on two counts: count one, having weapons under disability, a felony of the fifth
degree, in violation of R.C. 2923.13(A)(3) and (C); and count two, obstructing official
business, a misdemeanor of the second degree, in violation of R.C. 2921.31(A).2
Appellant was appointed counsel and pleaded not guilty at his arraignment.
{¶3} Thereafter, Appellant withdrew his former plea and entered a no contest
plea to count one, having weapons under disability, a felony of the third degree, in
violation of R.C. 2923.13(A)(3) and (C). Appellant and Appellee, the State of Ohio,
entered into an agreed recommendation of sentence which included nine months in
prison on count one, with 317 days of credit for time served, and dismissal on count two.
{¶4} A combined plea and sentencing hearing was held on February 7, 2019.
{¶5} During the plea portion of the hearing, post-release control was mentioned.
Specifically, the trial court conducted a Crim.R. 11 colloquy with Appellant and indicated
that he would be subject to three years of post-release control. Following the
advisements, the trial court accepted Appellant’s no contest plea and proceeded
immediately to sentencing.
{¶6} During the sentencing portion of the hearing, the trial court followed the
1A nunc pro tunc judgment entry was filed on February 20, 2019 to correct a clerical error. Neither the
February 8, 2019 entry nor the February 20, 2019 nunc pro tunc entry mention post-release control.
2 Count one was later amended from a fifth-degree felony to a third-degree felony.
Case No. 19 MA 0027
–3–
agreed recommendation of sentence between Appellant and the State. Appellant
received nine months in prison, with 317 days of credit for time served, and was ordered
released on this case. During this portion of the hearing, however, post-release control
was not mentioned. Also, post-release control was not mentioned in the trial court’s
February 8, 2019 sentencing entry. In addition, post-release control was not mentioned
in the trial court’s February 20, 2019 nunc pro tunc entry.3
{¶7} Appellant filed a timely appeal and raises one assignment of error.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY NOT INCORPORATING NOTICE OF
POST RELEASE CONTROL INTO ITS SENTENCING ENTRIES.
In sentencing a defendant, the trial court must notify the defendant at the
sentencing hearing of any term of post-release control and incorporate the
postrelease control notification into the sentencing entry. R.C.
2929.19(B)(2)(c)-(e); State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085,
817 N.E.2d 864, paragraph one of the syllabus, superseded by statute on
other grounds. See also State v. Bundy, 2013-Ohio-2501, 994 N.E.2d 9, ¶
10. If a trial court fails to impose the statutorily mandated term of post-
release control as part of a defendant’s sentence, that part of the sentence
is void and must be set aside. State v. Fischer, 128 Ohio St.3d 92, 2010-
Ohio-6238, 942 N.E.2d 332, ¶ 26. * * *
***
If the trial court * * * failed to incorporate that [post-release control]
advisement into the final judgment entry, the proper remedy is correction
through means of a nunc pro tunc entry. [State v.]Qualls, 131 Ohio St.3d
499, 2012-Ohio-1111, 967 N.E.2d 718 at ¶ 13. * * * The sentencing
judgment entry, however, must be corrected before the defendant
completes the prison term for the offense for which post-release control was
3 The nunc pro tunc entry merely corrected count one to reflect that it is a third-degree felony.
Case No. 19 MA 0027
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to be imposed. Qualls at ¶ 16, 24. If it is not corrected prior to the completion
of the sentence, post-release control cannot be imposed. Id.***
[A]n agreed upon sentence does not affect a defendant’s ability to appeal
the inadequacy of the post-release control advisement[.]
State v. Hill, 7th Dist. Jefferson No. 16 JE 0021, 2017-Ohio-4006, ¶ 12, 14, 18.
{¶8} As stated, the trial court conducted a combined plea and sentencing
hearing. During the plea portion, three years of post-release control was mentioned.
During the sentencing portion, the trial court followed the agreed sentence but did not
mention post-release control. Assuming that post-release control was properly provided
at the combined hearing, the trial court, however, never mentioned post-release control
in its sentencing entry nor in its nunc pro tunc entry. The Ohio Department of
Rehabilitation and Correction website reveals that although Appellant was released from
prison, he is currently under Adult Parole Authority supervision for a three-year period,
which began on June 5, 2019.
{¶9} The agreed upon sentence in this case does not affect Appellant’s ability to
appeal the inadequacy of the post-release control advisement. Hill, supra, at ¶ 18.
Because Appellant has been released from prison and given the deficient judgment
entries, he cannot now be subject to post-release control. Id. at ¶ 16.
CONCLUSION
{¶10} For the foregoing reasons, Appellant’s sole assignment of error is well-
taken. The judgment of the Mahoning County Court of Common Pleas is reversed and
the matter is remanded with instructions to discharge Appellant from his term of post-
release control.
Donofrio, J., concurs.
Robb, J., concurs.
Case No. 19 MA 0027
[Cite as State v. Bankston, 2019-Ohio-4637.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is sustained and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is reversed. We hereby remand
this matter to the trial court for further proceedings according to law and consistent with
this Court’s Opinion. Costs to be waived.
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.