State v. Whitted , 2012 Ohio 1695 ( 2012 )

[Cite as State v. Whitted, 2012-Ohio-1695.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 11 MA 25
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
MICHAEL J. WHITTED, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 10 CR 757.
JUDGMENT: Affirmed in part; reversed in part and
remanded for a limited resentencing
hearing.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Assistant Prosecuting Attorney
21 W. Boardman St., 6th Floor
Youngstown, OH 44503
For Defendant-Appellant: Attorney Jan Mostov
839 Southwestern Run
Youngstown, OH 44514
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Dated: March 26, 2012
[Cite as State v. Whitted, 2012-Ohio-1695.]
DeGenaro, J.
{¶1} Defendant-Appellant, Michael Whitted, appeals the January 4, 2011
judgment of the Mahoning County Court of Common Pleas convicting him of one count of
harassment with a bodily substance, and two counts of vandalism, and sentencing him
accordingly. Whitted argues that the trial court erred by failing to properly inform him
about his post-release control. The State concedes the error.
{¶2} Whitted's argument is meritorious. The trial court failed to properly inform
Whitted of the ramifications of violating his post-release control. Because he was
sentenced on January 4, 2011, pursuant to State v. Singleton, 124 Ohio St.3d 173, 2009-
Ohio-6434, 920 N.E.2d 958, Whitted is subject to the sentence-correction mechanism of
R.C. 2929.191. Accordingly, the judgment of the trial court is affirmed in part, reversed in
part, and the case remanded for a limited resentencing hearing and judgment entry to
correct the post-release control defect pursuant to R.C. 2929.191(C).
Facts and Procedural History
{¶3} On July 22, 2010, Whitted was indicted by the Mahoning County Grand Jury
on one count of harassment with a bodily substance (R.C. 2921.38(A)(D)), a fifth-degree
felony; and two counts of vandalism (R.C. 2909.05(B)(2)(E)), both fifth-degree felonies.
Whitted was accused of throwing a bodily substance at a Sheriff's Deputy, and causing
physical harm to Sherriff's Department property.
{¶4} Whitted initially pled not guilty and counsel was appointed. Subsequently,
Whitted entered into a plea agreement with the State in which he agreed to plead guilty to
the indicted charges, and in exchange the State agreed to stand silent with respect to
sentencing. At the October 20, 2010 plea hearing, Whitted stipulated to his competency,
which had been challenged earlier in the proceedings. The trial court engaged in a
colloquy with Whitted regarding the rights he would give up by pleading guilty. At the end
of the hearing, the court accepted Whitted's plea as knowingly, voluntarily and intelligently
made. A pre-sentence investigation was ordered and prepared.
{¶5} At Whitted’s December 29, 2010 sentencing hearing, the State kept its
promise to stand silent. Defense counsel asked the trial court to depart from the
recommendation in the PSI that Whitted should be sentenced to prison time. Whitted
-2-
made a brief statement, apologizing for his conduct, and stating that he had learned his
lesson while in jail. The victim was not present and made no statement. The trial court
sentenced Whitted to three twelve month consecutive terms for an aggregate 36 month
sentence. The trial court gave Whitted credit for the 116 days he had served along with
future days while he awaited transportation to the appropriate state institution. The trial
court informed Whitted that upon completion of his sentence he "could be subject to a
period of post-release control for up to three years." However, the trial court did not
inform Whitted of the consequences of violating post-release control.
{¶6} The trial court’s January 4, 2011 sentencing entry stated the following
regarding post-release control:
{¶7} "It is further Ordered that the terms imposed for Counts One, Two, and
Three be served consecutively to one another for a total of THIRTY-SIX (36) MONTHS in
prison, followed by an optional period of post-release control for THREE (3) YEARS to be
monitored by the Adult Parole Authority." The sentencing entry stated that Whitted had
"been given notice under R.C. 2929.19(B)(3)," however the sentencing entry itself
mentioned nothing about the consequences of violating post-release control.
{¶8} On March 7, 2011, this court granted Whitted leave for a delayed appeal
and appointed counsel. On June 21, 2011, counsel filed a no-merit brief and motion to
withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493(1967); and State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (1970). Whitted failed
to file a pro-se brief. On September 16, 2011, this court issued a judgment entry
explaining that we had determined a possible issue for review. We granted Whitted 30
days "to file a brief analyzing whether Appellant was properly notified of the ramifications
of violating post-release control pursuant to R.C. 2929.19(B)(3)(e). * * *." On November
21, 2011, Whitted, via his counsel, filed a brief per this court's instructions. The next day,
the State filed a "Confession of Judgment," conceding the post-release control error.
Post-release Control
{¶9} In his sole assignment of error, Whitted asserts:
{¶10} "The trial court's failure to advise Defendant-Appellant at his sentencing
-3-
hearing of the consequences for violating the conditions of post-release control was
prejudicial error and contrary to law, and requires vacating the sentence and remanding
for resentencing and for the trial court to properly advise Defendant-Appellant concerning
the aforesaid consequences."
{¶11} R.C. 2967.28(C) requires that a sentencing court imposing "any sentence to
a prison term for a felony of the third, fourth, or fifth degree * * * shall include a
requirement that the offender be subject to a period of post-release control of up to three
years after the offender's release from imprisonment, if the parole board, in accordance
with division (D) of this section, determines that a period of post-release control is
necessary for that offender." R.C. 2929.19(B)(3)(e) additionally mandates that a trial
court notify a defendant at sentencing that if he violates a condition of post-release
control, as a consequence, the parole board may impose a prison term as part of the
sentence of up to one-half of the stated prison term originally imposed upon the
defendant.
{¶12} Here the trial court failed to notify Whitted about the consequences of
violating post-release control at the sentencing hearing, and also failed to include that
information in the sentencing entry.
{¶13} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958,
the Ohio Supreme Court held that for "sentences imposed on and after July 11, 2006, in
which a trial court failed to properly impose post-release control, trial courts shall apply
the procedures set forth in R.C. 2929.191." Id. at paragraph two of the syllabus. Further,
in Singleton, the Court specifically recognized that R.C. 2929.191 does not afford de novo
sentencing hearings for defendants sentenced after July 11, 2006, but rather that the
resentencing pertains only to the flawed imposition of post-release control. Id. at ¶24.
{¶14} Whitted was sentenced on January 4, 2011, and is thus subject to the
sentence-correction mechanism of R.C. 2929.191:
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
-4-
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. * * *
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. * * * 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.
R.C. 2929.191(A)(1), and (C).
{¶15} The State asserts in its "Confession of Judgment," that instead of
remanding for a limited resentencing hearing, this court should modify Whitted's sentence
and issue a limited remand directing the trial court to correct the sentencing entry
regarding post-release control, pursuant to State v. Davis, 7th Dist. No. 10 MA 160, 2011-
Ohio-6025. Davis is distinguishable for two reasons. First, only the sentencing entry was
deficient. Id. at ¶5: "Appellant [Davis] acknowledges that he was properly informed about
post-release control at [the sentencing] hearing." Second, the sentencing entry in Davis
was issued December 14, 2005, before the July 11, 2006 effective date of R.C. 2929.191.
Thus, Davis could not avail himself of the correction mechanisms of R.C. 2929.191, and
this court properly remanded the case for the trial court to correct the sentencing
judgment entry to include the omitted post-release control advisement without a hearing.
Davis at ¶13; State v. Adams, 7th Dist. No. 11 MA 65, 2012-Ohio-432 (Denying the
State’s motion for reconsideration; distinguishing Davis and State v. Adams, 7th Dist. No.
11 MA 65, 2011-Ohio-6428 because Davis was sentenced before July 11, 2006 and
Adams was sentenced after)
{¶16} By contrast, not only did the trial court omit post-release control from its
sentencing entry, it also fell short of the statutory notification requirements during the
-5-
sentencing hearing. R.C. 2929.19(B)(3)(e). As the Eighth District recently explained:
Appellant is entitled to a hearing where postrelease control can be properly
imposed. See Singleton; State v. Kelley, Cuyahoga App. Nos. 94487 and
94488, 2011-Ohio-88; State v. Nicholson, Cuyahoga App. No. 95327, 2011-
Ohio-14. The trial court had an affirmative obligation under R.C.
2929.19(B)(3)(e) to inform appellant that he could face up to one-half of his
originally stated prison term for violating his postrelease control. The trial
court's failure to provide the required notice under R.C. 2929.19(B)(3)(e)
cannot be corrected by the trial court's inclusion of the language in its
sentencing journal entry. State v. Minite, 8th Dist. No. 95699, 2011-Ohio-
3585, ¶16.
{¶17} Pursuant to R.C. 2929.191, Singleton, Adams and Minite, Whitted's sole
assignment of error is meritorious. Whitted is entitled to a resentencing hearing regarding
the sole issue of post-release control, along with a corrected sentencing entry with the
proper post-release control advisement. Accordingly, the judgment of the trial court is
affirmed in part, reversed in part, and the case is remanded for further proceedings
pursuant to R.C. 2929.191(C).
Waite, P.J., concurs.
Vukovich, J., concurs.