State v. Harris ( 2012 )

[Cite as State v. Harris, 2012-Ohio-2185.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 11CA15
:
vs. :
:
DERRICK L. HARRIS, : DECISION AND JUDGMENT ENTRY
:
Defendant-Appellant. : RELEASED 05/14/12
:
________________________________________________________________
APPEARANCES:
Derrick L. Harris, Chillicothe, Ohio, Appellant pro se.
Judy C. Wolford, Pickaway County Prosecuting Attorney, Circleville, Ohio, for
Appellee.
________________________________________________________________
Harsha, J.
{¶1} Derrick L. Harris appeals the trial court’s decision that denied his
motion for de novo sentencing. He contends that he is entitled to a new
sentencing hearing because the trial court’s sentencing entry failed to state that
the parole board could impose up to one-half of Harris’ originally-imposed prison
term if he violated post-release control. Because the trial court notified Harris at
the sentencing hearing that he could be subject to up to one-half of his originally-
imposed prison term if he violated post-release control, Harris is not entitled to a
new sentencing hearing. However, because the trial court failed to incorporate
this mandated language into its sentencing entry, we remand to the trial court for
the limited purpose of correcting the sentencing entry. Accordingly, we sustain
Harris’ assignment of error in limited part and remand to the trial court.
Pickaway App. No. 11CA15 2
I. FACTS
{¶2} On December 20, 2005, the trial court convicted Harris of
aggravated robbery with a firearm specification, felonious assault with a firearm
specification, and having a weapon while under a disability. The court sentenced
Harris to a total of fifteen years in prison. The court additionally notified Harris
that he would be subject to post-release control for five years. Its sentencing
entry states: “The Court has further notified the defendant that he will be subject
to a period of post-release control of Five (5) years, to be imposed by the Parole
Board after his release from imprisonment, as well as the consequences for
violating conditions of post release control imposed by the Parole Board under
[R.C.] 2967.28. The defendant is ordered to serve as part of this sentence any
such term of Five (5) years of post release control imposed by the Parole Board
and any prison term for violation of that post release control.”
{¶3} On May 4, 2011, Harris filed a pro se motion for “de novo
sentencing.” He argued that he was entitled to resentencing because the trial
court’s sentencing entry failed to specify that the parole board may impose up to
one-half of Harris’ originally-imposed prison term if he violates post-release
control.
{¶4} The trial court denied Harris’ motion. The court determined that its
sentencing entry complied with the applicable statutes, because it informed
Harris that he would be subject to post-release control for five years and that he
may have to serve “any prison term for violation of that post release control.”
The court further noted that it had verbally informed Harris “of the consequences,
Pickaway App. No. 11CA15 3
including the prison term of up to one-half of the prison term originally imposed.”
The court explained: “[Harris] is correct that a court speaks only through its
journal entry. However, this Court’s December 20, 2005, Entry clearly states that
[Harris] is subject to five years of post release control and that he may have to
serve ‘any prison term for violation of that post release control.’ This Court orally
advised and explained to [Harris] of what that prison term may consist. Ohio law
never intended for a court’s entry to state verbatim that which is stated in open
court and placed on the record.”
II. ASSIGNMENT OF ERROR
{¶5} Harris raises one assignment of error:
“The court erred when it failed to impose post-release control as
required by the Ohio Statutes.”
III. ANALYSIS
{¶6} In his sole assignment of error, Harris argues that the trial court
erred when it denied his motion for de novo sentencing. He asserts that the
court should have conducted a new sentencing hearing, because its original
sentencing entry failed to inform Harris that violating his post-release control
conditions could result in the imposition of up to one-half of his originally-imposed
stated prison term.
{¶7} Former R.C. 2929.19(B)(3)(c) and (e), which were in effect when
the court sentenced Harris (the present versions are codified at R.C.
2929.19(B)(2)(c) and (e)), required a trial court to notify certain felony offenders
at the sentencing hearing that: (1) the offender is subject to statutorily mandated
post-release control; and (2) the parole board may impose a prison term of up to
Pickaway App. No. 11CA15 4
one-half of the offender’s originally-imposed prison term if the offender violates
post-release control conditions. State v. Singleton, 124 Ohio St.3d 173, 2009-
Ohio-6434, 920 N.E.2d 958, ¶11; State v. Triplett, 4th Dist. No. 10CA35, 2011-
Ohio-4628, ¶4 The Ohio Supreme Court has made it clear that the trial court not
only must give the offender both notifications at the sentencing hearing, but it
also must incorporate both notifications into its sentencing entry. State v. Qualls,
Slip Opinion No. 2012-Ohio-1111, ¶¶18-19 (stating that 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” and
that court must incorporate these notifications into its sentencing entry but also
recognizing that the “main focus” is “on the notification itself and not on the
sentencing entry”); State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954
N.E.2d 596, ¶¶308-309 (remanding to trial court to correct sentencing entry when
entry failed to specify that if Lang violated post-release control, the parole board
could impose a maximum prison term of up to one-half of the prison term
originally imposed); State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935
N.E.2d 9, ¶77 (stating that trial court’s language in sentencing entry that “[t]he
defendant is ordered to serve as part of this sentence any term of post-release
control imposed by the Parole Board, and any prison term for violation of that
post-release control” did not comply with mandate to inform offender that the
parole board could impose an additional prison term of up to one-half of his
prison sentence for violating post-release control) (emphasis sic); Singleton
Pickaway App. No. 11CA15 5
(affirming remand to trial court when trial court’s sentencing entry failed to 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). We also have
recognized that a trial court must inform the offender at the sentencing hearing of
the “up to one-half” prison term penalty for violating post-release control and
must repeat that information in its sentencing entry. State v. Evans, 4th Dist. No.
10CA33, 2011-Ohio-4630, ¶8. When a court fails to comply with either the
sentencing hearing or sentencing entry notification, “the offending portion of the
sentence is void, must be set aside, and is subject to review and correction.”
Triplett at ¶4, citing State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, 942
N.E.2d 332, ¶27–29.
{¶8} Here, no one disputes that the trial court’s sentencing entry failed to
state that the parole board could impose up to one-half of Harris’ originally-
imposed prison term if he violated post-release control. The trial court reasoned
that it complied with this sentencing entry mandate by stating that Harris would
have to serve “any prison term for violation of that post-release control.”
However, this is the exact language that the Ohio Supreme Court determined did
not comply with the sentencing entry mandate. Ketterer, supra. Consequently,
we must likewise conclude that the trial court did not comply with the mandate to
incorporate into its sentencing entry a notification that Harris could serve up to
one-half of his originally-imposed prison term for violating post-release control.
{¶9} Although we agree with Harris that the trial court did not comply
with the sentencing entry notification regarding the “up to one-half” prison term
Pickaway App. No. 11CA15 6
for violating post-release control, we do not agree that this failure entitles Harris
to a de novo sentencing hearing. An offender is entitled to a new sentencing
hearing only when the trial court failed to provide the statutorily required
notification at the sentencing hearing. Qualls at ¶24 (stating that “when the
notification of postrelease control was properly given at the sentencing hearing,
the essential purpose of notice has been fulfilled and there is no need for a new
sentencing hearing to remedy the flaw”). If the trial court provided the proper
notifications at the sentencing hearing but failed to carry over those notifications
to its sentencing entry, the proper remedy is for the trial court to enter a nunc pro
tunc entry. Id. at ¶15. A trial court may use a nunc pro tunc entry to correct a
failure to include in its sentencing entry a post-release control notification that it
properly provided at the sentencing hearing but failed to incorporate into the
sentencing entry. Id. Thus, “when a defendant is notified about postrelease
control at the sentencing hearing, but notification is inadvertently omitted from the
sentencing entry, the omission can be corrected with a nunc pro tunc entry and
the defendant is not entitled to a new sentencing hearing.” Id. at 30. Under
these circumstances, we may either remand the matter to the trial court so that it
may correct its sentencing entry or correct the entry ourselves. See Fischer at
¶¶29-30 (stating that “[c]orrecting a defect in a sentence without a remand is an
option” when trial court “does not impose postrelease control in accordance with
statutorily mandated terms”); Triplett at ¶6 (noting that appellate court “authorized
to correct certain errors without remanding for resentencing”). Here, we think the
better practice would be to remand this matter to the trial court for the limited
Pickaway App. No. 11CA15 7
purpose of correcting its sentencing entry to specifically state that the parole
board may impose up to one-half of Harris’ originally-imposed prison term if he
violates post-release control. Because Harris has not disputed that the trial court
provided the statutorily mandated notice at the sentencing hearing,1 the trial court
need not hold another sentencing hearing.
{¶10} Accordingly, we sustain Harris’ assignment of error to the limited
extent discussed and remand to the trial court so that it may enter a nunc pro
tunc entry that incorporates the required language into its sentencing entry.
JUDGMENT REMANDED.
1
A transcript of the sentencing hearing was not provided on appeal, but the trial court noted in its
decision denying Harris’ motion for de novo sentencing that at the original sentencing hearing, it
had orally informed Harris that the parole board could impose up to one-half of his originally-
imposed sentence for violating post-release control. Without a transcript, we can only presume
Pickaway App. No. 11CA15 8
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REMANDED. Appellee shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Pickaway County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS
COURT, it is temporarily continued for a period not to exceed sixty days upon the
bail previously posted. The purpose of a continued stay is to allow Appellant to
file with the Supreme Court of Ohio an application for a stay during the pendency
of proceedings in that court. If a stay is continued by this entry, it will terminate at
the earlier of the expiration of the sixty day period, or the failure of the Appellant
to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of sixty days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
th
the regularity of the sentencing hearing. E.g., State v. Delong, 4 Dist. No. 05CA815, 2006-Ohio-
2753, ¶6.