State v. Maxwell , 2012 Ohio 1807 ( 2012 )

[Cite as State v. Maxwell, 2012-Ohio-1807.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. CT2011-0038
ARYON MAXWELL
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2005-0223
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 23, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX ARYON L. MAXWELL
PROSECUTING ATTORNEY PRO SE
RON WELCH Post Office Box 7010
ASSISTANT PROSECUTOR Chillicothe, Ohio 45601
27 North Fifth Street, P. O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2011-0038 2
Wise, J.
{¶1} Defendant-Appellant Aryon Maxwell appeals the decision of the Court of
Common Pleas, Muskingum County, which overruled his motion for a new sentencing
hearing. The relevant facts leading to this appeal are as follows.
{¶2} On or about February 16, 2006, Appellant Maxwell was found guilty in the
Muskingum Court of Common Pleas of one count of aggravated burglary with firearm
specification, a felony of the first degree, and one count of theft of a firearm, a felony of
the third degree. On April 10, 2006, appellant was sentenced to a total of 16 years in
prison. However, at the time of sentencing, the trial court failed to properly notify
appellant of his post release control (“PRC”) requirements in the sentencing entry. In
particular, the trial court incorrectly stated in the sentencing entry that PRC was
mandatory “up to” five years, rather than a straight five years.
{¶3} On April 25, 2011, appellant filed a “Motion for De Novo Re-Sentencing”
based on a claim of improper PRC notification. On July 21, 2011, the trial court
effectively denied the request for a de novo hearing and instead addressed appellant’s
motion via a nunc pro tunc sentencing entry, concluding in pertinent part as follows:
{¶4} “When the trial court has orally informed the defendant of post-release
control, but the post-release control language is not recorded in the judgment entry, the
proper remedy is to add the omitted post-release control language by using an entry
nunc pro tunc after the hearing. ***. The Transcript of Proceedings reflects that the
Defendant was properly notified of his PRC term and conditions during the sentencing
hearing, a fact not adequately reflected by the judgment entry. Under these facts, a de
Muskingum County, Case No. CT2011-0038 3
novo sentencing hearing is inappropriate and a nunc pro tunc entry is the proper
remedy to correct such a clerical error.” Judgment Entry at 1-2.
{¶5} On August 16, 2011, appellant filed a notice of appeal. He herein raises
the following sole Assignment of Error:
{¶6} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT
APPELLANT A DE NOVO SENTENCING HEARING TO CORRECT A VOID
SENTENCE.”
I.
{¶7} In his sole Assignment of Error, appellant contends the trial court erred in
declining to grant him a de novo sentencing hearing upon his motion. We disagree.
{¶8} R.C. 2929.191 reads in pertinent part as follows:
{¶9} “(A)(1) If, prior to July 11, 2006, a court imposed a sentence including a
prison term of a type described in division (B)(2)(c) of section 2929.19 of the Revised
Code and failed to notify the offender pursuant to that division that the offender will be
supervised under section 2967.28 of the Revised Code after the offender leaves prison
or to include a statement to that effect in the judgment of conviction entered on the
journal or in the sentence pursuant to division (D)(1) of section 2929.14 of the Revised
Code, at any time before the offender is released from imprisonment under that term
and at a hearing conducted in accordance with division (C) of this section, the court
may prepare and issue a correction to the judgment of conviction that includes in the
judgment of conviction the statement that the offender will be supervised under section
2967.28 of the Revised Code after the offender leaves prison.
Muskingum County, Case No. CT2011-0038 4
{¶10} “If, prior to July 11, 2006, a court imposed a sentence including a prison
term of a type described in division (B)(2)(d) of section 2929.19 of the Revised Code
and failed to notify the offender pursuant to that division that the offender may be
supervised under section 2967.28 of the Revised Code after the offender leaves prison
or to include a statement to that effect in the judgment of conviction entered on the
journal or in the sentence pursuant to division (D)(2) of section 2929.14 of the Revised
Code, at any time before the offender is released from imprisonment under that term
and at a hearing conducted in accordance with division (C) of this section, the court
may prepare and issue a correction to the judgment of conviction that includes in the
judgment of conviction the statement that the offender may be supervised under
section 2967.28 of the Revised Code after the offender leaves prison.
{¶11} “(2) If a court prepares and issues a correction to a judgment of conviction
as described in division (A)(1) of this section before the offender is released from
imprisonment under the prison term the court imposed prior to July 11, 2006, the court
shall place upon the journal of the court an entry nunc pro tunc to record the correction
to the judgment of conviction and shall provide a copy of the entry to the offender or, if
the offender is not physically present at the hearing, shall send a copy of the entry to
the department of rehabilitation and correction for delivery to the offender. If the court
sends a copy of the entry to the department, the department promptly shall deliver a
copy of the entry to the offender. The court's placement upon the journal of the entry
nunc pro tunc before the offender is released from imprisonment under the term shall
be considered, and shall have the same effect, as if the court at the time of original
sentencing had included the statement in the sentence and the judgment of conviction
Muskingum County, Case No. CT2011-0038 5
entered on the journal and had notified the offender that the offender will be so
supervised regarding a sentence including a prison term of a type described in division
(B)(2)(c) of section 2929.19 of the Revised Code or that the offender may be so
supervised regarding a sentence including a prison term of a type described in division
(B)(2)(d) of that section.
{¶12} “(B)(1) If, prior to July 11, 2006, a court imposed a sentence including a
prison term and failed to notify the offender pursuant to division (B)(2)(e) of section
2929.19 of the Revised Code regarding the possibility of the parole board imposing a
prison term for a violation of supervision or a condition of post-release control or to
include in the judgment of conviction entered on the journal a statement to that effect,
at any time before the offender is released from imprisonment under that term and at a
hearing conducted in accordance with division (C) of this section, the court may
prepare and issue a correction to the judgment of conviction that includes in the
judgment of conviction the statement that if a period of supervision is imposed following
the offender's release from prison, as described in division (B)(2)(c) or (d) of section
2929.19 of the Revised Code, and if the offender violates that supervision or a
condition of post-release control imposed under division (B) of section 2967.131 of the
Revised Code the parole board may impose as part of the sentence a prison term of up
to one-half of the stated prison term originally imposed upon the offender.
{¶13} “(2) If the court prepares and issues a correction to a judgment of
conviction as described in division (B)(1) of this section before the offender is released
from imprisonment under the term, the court shall place upon the journal of the court
an entry nunc pro tunc to record the correction to the judgment of conviction and shall
Muskingum County, Case No. CT2011-0038 6
provide a copy of the entry to the offender or, if the offender is not physically present at
the hearing, shall send a copy of the entry to the department of rehabilitation and
correction for delivery to the offender. If the court sends a copy of the entry to the
department, the department promptly shall deliver a copy of the entry to the offender.
The court's placement upon the journal of the entry nunc pro tunc before the offender is
released from imprisonment under the term shall be considered, and shall have the
same effect, as if the court at the time of original sentencing had included the
statement in the judgment of conviction entered on the journal and had notified the
offender pursuant to division (B)(2)(e) of section 2929.19 of the Revised Code
regarding the possibility of the parole board imposing a prison term for a violation of
supervision or a condition of post-release control.”
{¶14} “(C) On and after July 11, 2006, a court that wishes to prepare and issue a
correction to a judgment of conviction of a type described in division (A)(1) or (B)(1) of
this section shall not issue the correction until after the court has conducted a hearing
in accordance with this division. Before a court holds a hearing pursuant to this
division, the court shall provide notice of the date, time, place, and purpose of the
hearing to the offender who is the subject of the hearing, the prosecuting attorney of
the county, and the department of rehabilitation and correction. The offender has the
right to be physically present at the hearing, except that, upon the court's own motion
or the motion of the offender or the prosecuting attorney, the court may permit the
offender to appear at the hearing by video conferencing equipment if available and
compatible. An appearance by video conferencing equipment pursuant to this division
has the same force and effect as if the offender were physically present at the hearing.
Muskingum County, Case No. CT2011-0038 7
At the hearing, the offender and the prosecuting attorney may make a statement as to
whether the court should issue a correction to the judgment of conviction.”
{¶15} However, “[a]lthough the legislature intended R.C. 2929.191 to apply to
defendants sentenced prior to July 11, 2006, in State v. Singleton, 124 Ohio St.3d,
2009-Ohio-6434, the Ohio Supreme Court rejected such retrospective application.”
State v. Adams, Mahoning App.No. 11 MA 65, 2012-Ohio-432, ¶ 3. The Ohio Supreme
Court has held, subsequent to Singleton, that if a defendant is under a sentence in
which post-release control was not properly rendered, only the offending portion of the
sentence dealing with post-release control is subject to review and correction. See
State v. Fischer, 128 Ohio St.3d 92, 942 N.E.2d 332, 2010–Ohio–6238. The new
sentencing hearing to which the offender is entitled is limited to the issue of post-
release control. Id. In light of Fischer, we have rejected the argument that a PRC
resentencing proceeding requires a de novo hearing. See State v. McPherson, Licking
10–CA–99, 2011–Ohio–1020. Regardless of whether common law or R.C. 2929.191
applies, the mere lack of PRC notice never entitles a defendant to a “full de novo
sentencing hearing.” See State v. Oweis, Delaware App.No. 11CAA060050, 2012-
Ohio-443, ¶ 13, citing State v. Davis, Washington App.No. 10 CA 9, 2011–Ohio–6776,
¶ 8.
{¶16} In the case sub judice, appellant acknowledges the rule set forth in
Fischer; however, appellant directs us to the decision of the Eighth District Court of
Appeals in State v. Harris, Cuyahoga App.No. 95097, 2011-Ohio-1072, wherein the
court, distinguishing between “misstat[ing] the nature or the length of postrelease
control” and “fail[ing] to advise *** of the consequences of violating postrelease
Muskingum County, Case No. CT2011-0038 8
control,” held that a remand for a de novo hearing was warranted as described in State
v. Singleton, supra. See Harris at ¶ 13. In the case sub judice, appellant maintains that
the trial court, in the sentencing entry, did not provide him with a proper PRC term
notification and did not properly advise him of the consequences of violating PRC, thus
mandating a de novo resentencing. See Appellant’s Brief at 4. However, we are aware
of no adoption by this Court of the rationale of Harris in this regard, and we decline to
do so now.
{¶17} Furthermore, subsequent to the date of oral arguments in the case sub
judice, the Ohio Supreme Court decided the case of State v. Qualls, --- N.E.2d ---,
2012-Ohio-1111, holding as follows at the syllabus: “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.”
{¶18} Appellant herein, like Mr. Qualls, was sentenced prior to July 11, 2006
(see Qualls at ¶2), and we find the aforecited law from the Ohio Supreme Court is
directly on point with the circumstances of the case sub judice. The trial court therefore
correctly remedied the concerns in appellant’s motion for de novo resentencing by
issuing a nunc pro tunc entry.
Muskingum County, Case No. CT2011-0038 9
{¶19} Appellant's sole Assignment of Error is overruled.
{¶20} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Muskingum County, Ohio, is hereby affirmed.
By: Wise, J.
Delaney, P. J., and
Farmer, J., concur.
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JUDGES
JWW/d 0307
Muskingum County, Case No. CT2011-0038 10
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ARYON MAXWELL :
:
Defendant-Appellant : Case No. CT2011-0038
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.
Costs assessed to appellant.
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JUDGES