State v. Ewers , 2011 Ohio 1354 ( 2011 )

[Cite as State v. Ewers, 2011-Ohio-1354.]
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. 10CAA090081
RACHEL EWERS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case Nos. 07 CRI 05258
and 07 CRI 06323
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 21, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN J. WALTER O. ROSS LONG
Assistant Prosecuting Attorney 125 North Sandusky Street
Delaware County Prosecutor's Office Delaware, Ohio 43015
140 North Sandusky Street
Delaware, Ohio 43015
Delaware County, Case No. 10CAA090081 2
Hoffman, P.J.
{¶1} Defendant-appellant Rachel Ewers appeals the September 17, 2010
Second Nunc Pro Tunc Judgment Entry On Sentence entered by the Court of Common
Pleas of Delaware County. The State of Ohio is plaintiff-appellee.
STATEMENT OF THE CASE1
{¶2} On October 11, 2007, the trial court sentenced Appellant on three counts
of Endangering Children. On July 15, 2010, the trial court filed a Nunc Pro Tunc
Judgment Entry On Sentence to comply with State v. Baker, 119 Ohio St.3d 1197. In
the later entry, the trial court also corrected a part of its original sentence to specify
Appellant shall be subject to a mandatory period of post-release control of three years.
{¶3} Thereafter, Appellant filed a Motion to Restore Resentencing and Motion
for Jail Time Credit. The trial court denied said motion via Judgment Entry filed
September 17, 2010, and stated therein the basis of its amended entry dated July 15,
2010, regarding post release control was to comply with R.C. 2929.191(A)(1).
Thereafter, the trial court entered its Second Nunc Pro Tunc Judgment Entry On
Sentence which is the subject of the instant appeal.
{¶4} Appellant assigns as error:
{¶5} “I. THE TRIAL COURT ERRED IN NOT HOLDING A DE NOVO RE-
SENTENCING HEARING FOR THE APPELLANT IN THIS CASE.”
{¶6} Herein, Appellant maintains the trial court erred in resentencing her
pursuant to R.C. 2929.191(A)(1) rather than conducting a de novo resentencing hearing
1
A rendition of the underlying facts is unnecessary for our disposition of Appellant’s
sole assignment of error.
Delaware County, Case No. 10CAA090081 3
as provided in R.C. 2929.191(C). The State concedes Appellant’s sentence cannot be
corrected by the [SECOND] nunc pro tunc entry because Appellant was originally
sentenced after July 11, 2006, the effective date of R.C. 2929.191.2 We agree.
{¶7} Appellant’s sole assignment of error is sustained. The judgment of the trial
court is reversed and the matter remanded for resentencing.
By: Hoffman, P.J.
Edwards, J. and
Delaney, J. concur
s/ William B. Hoffman_________________
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
2
See Appellee’s Brief at p.4.
Delaware County, Case No. 10CAA090081 4
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
RACHEL EWERS :
:
Defendant-Appellant : Case No. 10CAA090081
For the reason stated in our accompanying Opinion, the September 17, 2010
Second Nunc Pro Tunc Judgment Entry On Sentence is reversed and the matter
remanded to the trial court for further proceedings in accordance with our Opinion and
the law.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY