State v. Camp ( 2011 )

[Cite as State v. Camp, 2011-Ohio-3215.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Sheila G. Farmer, P.J.
: Julie A. Edwards, J.
Plaintiff-Appellee : Patricia A. Delaney, J.
:
-vs- : Case No. 10CAA080066
:
:
WILLIAM CAMP : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Delaware
County Court of Common Pleas Case
No. 05-CR-I-02-061
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 27, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID A. YOST ERIC ALLEN
Delaware County Prosecutor The Law Offices of Eric J. Allen, LTD
Delaware, Ohio 713 South Front Street
Columbus, Ohio 43206
BY: MARIANNE T. HEMMETER
Assistant Prosecuting Attorney
140 North Sandusky Street
Delaware, Ohio 43015
[Cite as State v. Camp, 2011-Ohio-3215.]
Edwards, J.
{¶1} Appellant, William D. Camp, appeals a judgment of the Delaware County
Common Pleas Court adding a term of five years mandatory postrelease control to his
sentence by way of a corrected judgment entry. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On July 12, 2005, appellant entered guilty pleas to one count of corrupting
another with drugs (R.C. 2925.02(A)(4)(a)) and four counts of unlawful sexual conduct
with a minor (R.C. 2907.04(A)). He was sentenced to a term of incarceration of 12
years and four months. The judgment was affirmed on appeal.
{¶3} In the sentencing entry filed November 22, 2005, the court incorrectly
stated that as a part of appellant’s sentence, postrelease control may be imposed for up
to five years. On July 28, 2010, without holding a new sentencing hearing, the trial
court issued a judgment correcting the November 22, 2005 sentencing entry pursuant to
Crim. R. 36. The corrected entry provides that postrelease control shall be imposed for
a mandatory period of five years.
{¶4} Appellant assigns two errors on appeal:
{¶5} “I. THE TRIAL COURT ERRED BY INVOKING CRIMINAL RULE 36 TO
CORRECT A VOID IMPOSITION OF POST RELEASE CONTROL.
{¶6} “II. APPELLANT IS ENTITLED TO A DE NOVO SENTENCING
HEARING.”
I, II
{¶7} In his two assigned errors, appellant argues that the court erred in using
Crim. R. 36 to correct the November 22, 2005, sentencing entry, as the court was
Delaware County App. Case No. 10CAA080066 3
required to hold a resentencing hearing pursuant to R.C. 2929.191(A). The State has
conceded both assignments of error, agreeing that Crim. R. 36 cannot be used to
correct a void sentence, and R. C. 2929.191 required that a new sentencing hearing be
held.
{¶8} Crim. R. 36 provides for correction of clerical mistakes. However, as this
court has previously noted, a trial court cannot resentence a defendant to correct an
error in postrelease control through a corrected judgment entry, and the court is
required to hold a hearing pursuant to R.C. 2929.191(C):
{¶9} “R.C. 2929.191 sets forth a procedure for the trial court to correct a
judgment of conviction when the trial court, either at the sentencing hearing or in the
final judgment, failed to properly notify a defendant about the requisite post-release
control. Under that statute, the trial court must conduct a hearing before it can file a
nunc pro tunc correction to the judgment of conviction. R.C. 2929.191(C) details how
such a hearing must be conducted. It provides:
{¶10} “‘(C) On and after the effective date of this section, 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
Delaware County App. Case No. 10CAA080066 4
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.
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.’”
{¶11} State v. Crawley, Stark App. No. 2010 CA 0057, 2010-Ohio-5098, ¶68-69.
{¶12} The Ohio Supreme Court has expressly stated that for criminal sentences
imposed prior to July 11, 2006, in which a trial court failed to properly impose
postrelease control, trial courts shall conduct a de novo sentencing hearing. State v.
Singleton, 124 Ohio St.3d 173, 920 N.E.2d 958, 2009-Ohio-6434, paragraph 1 of the
syllabus. In the instant case, the sentence was imposed prior to July 11, 2006, and the
trial court was therefore required to hold a de novo sentencing hearing pursuant to R.C.
2929.191 before adding a term of mandatory postrelease control to appellant’s
sentence.
{¶13} Assignments of error I and II are sustained.
Delaware County App. Case No. 10CAA080066 5
{¶14} The judgment of the Delaware County Common Pleas Court is reversed.
This cause is remanded to that court with instructions to conduct a new sentencing
hearing pursuant to R.C. 2929.191.
By: Edwards, J.
Farmer, P.J. and
Delaney, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0330
[Cite as State v. Camp, 2011-Ohio-3215.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
WILLIAM CAMP :
:
Defendant-Appellant : CASE NO. 10CAA080066
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Delaware County Court of Common Pleas is reversed and remanded to
the trial court for further proceedings. Costs assessed to appellee.
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JUDGES