State v. Persinger , 109 N.E.3d 655 ( 2018 )

[Cite as State v. Persinger, 2018-Ohio-1076.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2017CA0007
:
GERRY H. PERSINGER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Morrow County Court of
Common Pleas, Case No. 2008 CR
0086
JUDGMENT: REVERSED AND REMANDED FOR
ISSUANCE OF NUNC PRO TUNC
ENTRY
DATE OF JUDGMENT ENTRY: March 22, 2018
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
DAVID HOMER GERRY A. PERSINGER, PRO SE
Morrow Co. Asst. Prosecutor Marion Correctional Inst.
60 East High St. P.O. Box 57
Mt. Gilead, OH 43338 Marion, OH 43301
Delaney, J.
Morrow County, Case No. 2017CA0007 2
{¶1} Appellant Gerry H. Persinger appeals from the October 5, 2017 Judgment
Entry of the Morrow County Court of Common Pleas overruling his “motion for arrest of
judgment” and “motion to vacate void judgment.” Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} In 2008, appellant was convicted of four counts of unlawful sexual conduct
with a minor, all felonies of the second degree in violation of R.C. 2907.04. The trial court
imposed an aggregate prison term of 20 years. Appellant directly appealed from his
convictions and sentence, challenging the sufficiency of the indictment and the imposition
of court costs, and alleging ineffective assistance of counsel. We overruled appellant’s
three assignment of error, affirming the convictions and sentence. State v. Persinger, 5th
Dist. Morrow No. 08-CA-14, 2009-Ohio-5849, appeal not allowed, 124 Ohio St. 3d 1402,
2009-Ohio-6825, 918 N.E.2d 1010, and reconsideration denied, 124 Ohio St. 3d 1437,
2010 -Ohio- 207, 920 N.E.2d 369. Appellant’s petition for a writ of habeas corpus was
dismissed. Persinger v. Marion Correctional Institution, S.D.Ohio No. 2:15-CV-02653,
2015 WL 5999321, *1.
{¶3} In 2012, appellant filed a petition for post-conviction relief which was
overruled. We dismissed appellant’s subsequent appeal because no brief was filed.
State v. Persinger, 5th Dist. Morrow No. 12-CA-11.
{¶4} In 2014, appellant filed a motion to correct sentence which was overruled.
We dismissed appellant’s subsequent appeal as untimely. State v. Persinger, 5th Dist.
Morrow No. 14 CA 0001.
{¶5} On May 3, 2017, appellant filed a “Motion to Arrest Judgment, Pursuant to
R.C. 2947.02(a)(b),” asserting the trial court had no jurisdiction over the offenses and that
Morrow County, Case No. 2017CA0007 3
no public record exists of “the body of the crimes.” Appellee responded with a motion in
opposition. On August 28, 2017, appellant filed a “Motion to Vacate Void Judgment”
arguing the trial court failed to properly notify him of post-release control. Both motions
were overruled.
{¶6} Appellant now appeals from the trial court’s Journal Entry of Judgment
dated October 5, 2017, overruling his motions for arrest of judgment and to vacate void
judgment.
{¶7} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶8} “THE TRIAL COURT ERRED WHEN IT DENIED THE MOTION TO
VACATE VOID JUDGMENT FOR IMPROPERLY IMPOSING POST-RELEASE
CONTROL IN VIOLATION OF DUE PROCESS UNDER THE OHIO CONSTITUTION
ART. I SECT. 16 U.S. CONSTITUTION 14TH AMENDMENT.”
ANALYSIS
{¶9} Appellant argues the trial court was required to vacate the void judgment
for improperly imposing post-release control. We agree to the extent that we remand the
matter to the trial court with instructions to issue a nunc pro tunc entry properly stating the
duration of the post-release control period.
{¶10} “[A] trial court must provide statutorily compliant notification to a defendant
regarding post release control at the time of sentencing, including notifying the defendant
of the details of the post release control and the consequences of violating post release
control.” State v. Qualls, 131 Ohio St. 3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18
(citations omitted). Further, “a trial court must incorporate into the sentencing entry the
Morrow County, Case No. 2017CA0007 4
post release-control notice to reflect the notification that was given at the sentencing
hearing.” Id. at ¶ 19.
{¶11} Because appellant was ultimately sentenced upon felony sex offenses, he
was subject to a five-year mandatory term of post-release control. See R.C.
2967.28(B)(1); R.C. 2929.19(B)(2)(c).
{¶12} In the case of mandatory post-release control, the court at a sentencing
hearing must notify the offender that he or she “will” be supervised if the offender has
been convicted of a felony subject to mandatory post release control. R.C.
2929.19(B)(2)(c) and 2967.28(B). Additionally, at the sentencing hearing, the court must
notify the offender that if he or she “violates that supervision * * *, 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 offender.” R.C. 2929.19(B)(2)(e).
{¶13} Appellant has not provided a transcripts of the sentencing hearing, so we
presume the trial court's oral post-release control notifications were proper. State v.
Grimes, 151 Ohio St. 3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 20, citing Natl. City Bank
v. Beyer, 89 Ohio St. 3d 152, 160, 729 N.E.2d 711 (2000); State v. Moore, 5th Dist.
Muskingum No. CT2015-0027, 2015-Ohio-3435, ¶ 11, affirmed, 151 Ohio St. 3d 276,
2017-Ohio-7851, 87 N.E.3d 1261.
{¶14} In Grimes, supra, the Ohio Supreme Court identified what information the
sentencing entry must contain to validly impose post release control in cases in which the
trial court made the proper advisements at the sentencing hearing:
[T]he sentencing entry must contain the following information:
(1) whether post release control is discretionary or mandatory, (2)
Morrow County, Case No. 2017CA0007 5
the duration of the post release-control period, and (3) a statement
to the effect that the Adult Parole Authority (‘APA’) will administer the
post release control pursuant to R.C. 2967.28 and that any violation
by the offender of the conditions of post release control will subject
the offender to the consequences set forth in that statute.
State v. Grimes, 151 Ohio St. 3d 19, 2017-Ohio-2927, 85
N.E.3d 700, ¶ 1.
{¶15} As appellee and the trial court recognized, the issue posed by this case is
the effect of the words “up to.” The trial court’s original sentencing entry of October 17,
2008 states the following regarding post-release control:
* * * *.
The Court has further notified [appellant] that post release
control is mandatory in this case up to a maximum of (5) years, as
well as the consequences for violating conditions of post release
control imposed by the Parole Board under Revised Code Section
2967.28. [Appellant] is ordered to serve as part of this sentence any
term of post release control imposed by the Parole Board, and any
prison term for violation of that post release control. (Emphasis
added).
* * * *.
{¶16} We appreciate appellee’s concession that the duration of the post-release
control period is misstated and “up to” 5 years does not properly describe the duration of
the post-release control period. See, State v. Hall, 11th Dist. Ashtabula No. 2016-A-0069,
Morrow County, Case No. 2017CA0007 6
2017-Ohio-4376, ¶ 25, appeal not allowed, 151 Ohio St. 3d 1428, 2017-Ohio-8371, 84
N.E.3d 1065 [“up to” is discretionary language and does not state a definite term].
{¶17} This is not a case, however, in which the trial court failed to mention post-
release control at all in the sentencing entry; appellant was notified he was subject to a
mandatory term of post release control. Grimes, supra, 2017-Ohio-2927 at ¶ 14 [“In this
case, as in Qualls, Grimes does not dispute that he was notified at the sentencing hearing
that he would be subject to post release control * * * * so we conclude that the court
accomplished the primary purpose of notice”]. We find this is a case in which the essential
purpose of notice has been fulfilled, there is no need for a new sentencing hearing to
remedy the flaw, and the original sentencing entry can be corrected to reflect what actually
took place at the sentencing hearing, through a nunc pro tunc entry, as long as the
correction is accomplished prior to appellant’s completion of his prison term. Qualls,
supra, 2012-Ohio-1111 at ¶ 24. In the entry from which appellant appealed, the trial court
in fact suggested this remedy but the appeal intervened.
{¶18} We therefore sustain appellant’s sole assignment of error to the extent that
we remand this matter to the trial court for preparation of a nunc pro tunc entry reflecting
that the mandatory duration of post release control is five years.
CONCLUSION
Morrow County, Case No. 2017CA0007 7
{¶19} Appellant’s sole assignment of error is sustained, the judgment of the
Morrow County Court of Common Pleas is reversed, and this matter is remanded to the
trial court for preparation of a nunc pro tunc entry as described herein.
By: Delaney, J.,
Wise, John, P.J. and
Baldwin, J., concur.