State v. Oweis , 2011 Ohio 1620 ( 2011 )

[Cite as State v. Oweis, 2011-Ohio-1620.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 10 CAA 08 0060
OSAMA OWEIS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas Case No. 06 CR I 11 0513
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: March 30, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CAROL O’BRIEN BRIAN G. JONES
DELAWARE COUNTY PROSECUTOR 2211 US Highway 23 North
Delaware, Ohio 43015
MARIANNE T. HEMMETER
Assistant Prosecuting Attorney
140 N. Sandusky St.
Delaware, Ohio 43015
[Cite as State v. Oweis, 2011-Ohio-1620.]
Delaney, J.
{¶1} Defendant-Appellant Osama Oweis appeals the July 15, 2010 Nunc Pro
Tunc Judgment Entry on Sentence issued by the Delaware County Court of Common
Pleas. Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE CASE1
{¶2} On August 10, 2007, Appellant was convicted by a jury on one count of
Aggravated Robbery, in violation of R.C. 2911.01(A)(1) and a felony of the first degree;
one count of Grand Theft, in violation of R.C. 2913.02(A)(1) and a felony of the fifth
degree; and two counts of Kidnapping, in violation of R.C. 2905.01(A)(2) and felonies of
the second degree.
{¶3} The trial court sentenced Appellant on October 1, 2007. Based on
sentencing memoranda submitted by the parties, the trial court did not sentence
Appellant on the Aggravated Robbery conviction. The trial court sentenced Appellant to
17 years in prison on the Kidnapping and Grand Theft convictions. The trial court
informed Appellant at the sentencing hearing and journalized in the sentencing entry
that as part of his sentence, postrelease control in this case was discretionary for up to
three years.
{¶4} Under R.C. 2967.28(B)(2), “[f]or a felony of the second degree that is not a
felony sex offense,” the period of post release control is mandatory for three years.
1
A statement of the underlying facts is not necessary for the disposition of this appeal.
Delaware County, Case No. 10 CAA 08 0060 3
{¶5} On July 15, 2010, the trial court filed a Nunc Pro Tunc Judgment Entry on
Sentence pursuant to State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330. The
judgment entry corrected the October 1, 2007 sentencing entry as to the term of
Appellant’s postrelease control. The nunc pro tunc sentencing entry stated that
Appellant was subject to a mandatory term of postrelease control of three years. The
trial court did not conduct a resentencing hearing before issuing the judgment entry.
{¶6} It is from this decision Appellant now appeals.
{¶7} Appellant raises one Assignment of Error:
{¶8} “I. REVISED CODE 2929.191 IS UNCONSTITUTIONAL BECAUSE IT
VIOLATES DUE PROCESS LAW UNDER THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ARTICLE 1 SECTION 16 OF THE OHIO
CONSTITUTION.”
I.
{¶9} Appellant argues that his due process rights were violated when the trial
court resentenced Appellant without conducting a resentencing hearing. We reject
Appellant’s arguments as to the unconstitutionality of R.C. 2929.191. However, we find
that R.C. 2929.191 provides Appellant the opportunity for a resentencing hearing
pursuant to R.C. 2929.191(C). In this case, the trial court erred in resentencing
Appellant through a nunc pro tunc judgment entry, rather than conducting a
resentencing hearing as provided in R.C. 2929.191(C).
{¶10} 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 postrelease
Delaware County, Case No. 10 CAA 08 0060 4
control. Under that statute, the trial court must conduct a hearing pursuant to R.C.
2929.191(C) before it can file a nunc pro tunc correction to the judgment of conviction.
State v. Crawley, Stark App. No. 2010 CA 00057, 2010-Ohio-5098, ¶ 68-69.
{¶11} The State concedes Appellant’s sentence cannot be corrected by the
nunc pro tunc judgment entry alone. R.C. 2929.191(C) requires the trial court to
conduct a resentencing hearing.
{¶12} Accordingly, Appellant’s sole assignment of error is sustained as to the
issue that a resentencing hearing is required in this case pursuant to R.C. 2929.191(C).
{¶13} The judgment of the trial court is reversed and the matter remanded for
resentencing.
By: Delaney, J.
Hoffman, P.J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JULIE A. EDWARDS
PAD:kgb
[Cite as State v. Oweis, 2011-Ohio-1620.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
: JUDGMENT ENTRY
-vs- :
:
OSAMA OWEIS :
: Case No. 10 CAA 08 0060
:
Defendant-Appellant :
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.
Costs assessed to Appellee.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JULIE A. EDWARDS