State v. Griffie , 2011 Ohio 6704 ( 2011 )

[Cite as State v. Griffie, 2011-Ohio-6704.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24102
v. : T.C. NO. 02CR2943
JAMES GRIFFIE, JR. : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
rd
Rendered on the 23 day of December , 2011.
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JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JOE CLOUD, Atty. Reg. No. 0040301, 3973 Dayton-Xenia Road, Beavercreek,
Ohio 45432
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} Defendant-appellant James Griffie, Jr. appeals a decision of the trial
court regarding the imposition of mandatory post-release control after a
re-sentencing hearing in Case No. 2002-CR-2943. Said hearing was held on May
2
18, 2010. The trial court issued an amended termination entry on May 26, 2010,
which stated that Griffie was subject to a mandatory five year term of post-release
control upon his “release from imprisonment.”
{¶ 2} Griffie filed a timely notice of appeal with this Court on June 18, 2010.
I
{¶ 3} On September 11, 2002, Griffie was indicted for two counts of
kidnapping and two counts of having weapons while under disability. All of the
counts were accompanied by firearm specifications. Griffie ultimately pled guilty to
two counts of kidnapping with the attendant firearm specifications. On November
27, 2002, the trial court sentenced Griffie to five years in prison for each kidnapping
count, to be served concurrently. The trial court merged the firearm specifications
for an additional three years in prison, to be served consecutively to the prison term
for kidnapping, for an aggregate sentence of eight years. The record establishes
that the trial court failed to properly inform Griffie at the sentencing hearing that he
would be subject to mandatory post-release control. The trial court also improperly
denied Griffie’s placement in a shock incarceration program and intensive program
prison in the termination entry.
{¶ 4} On January 23, 2004, the trial court issued an amended termination
entry to correct court costs. Additionally, the trial court failed to correct the
information regarding Griffie’s mandatory post-release control as well as its
improper denial of his placement in shock incarceration or intensive program prison
in the amended entry.
{¶ 5} On May 18, 2010, the trial court held a hearing in order to correctly
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inform Griffie of his mandatory post-release control sanction. The trial court issued
an amended entry on May 26, 2010, which correctly notified Griffie of his
mandatory post-release control sanction. The State concedes, however, that the
trial court failed to correct its improper denial of Griffie’s placement in shock
incarceration or intensive program prison in the amended entry.
{¶ 6} It is from this judgment that Griffie now appeals.
II
{¶ 7} Griffie’s first assignment of error is as follows:
{¶ 8} “THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY
INFORM THE DEFENDANT OF HIS POST RELEASE CONTROL RIGHTS.”
{¶ 9} In the instant case, Case No. 2002 CR 2943, Griffie asserts that his
expected release date is June 25, 2010. Griffie points out, however, that he was
also sentenced by the trial court in Case No. 1993 CR 1939 to a term of five to
fifteen years. Griffie asserts that his expected release date in that case is October
23, 2012. In his first assignment, Griffie contends that the trial court erred when it
imposed his mandatory post-release control and made it effective after his release
from imprisonment, and not the date his sentence was to be completed in Case No
2002 CR 2943.
{¶ 10} At the sentencing hearing on May 18, 2010, the following exchange
occurred:
{¶ 11} “The Court: Okay. Sir, you understand that by this sentencing, the
re-sentencing that we have to do is just related, as he said, to the post-release
control. It does not change your out date. You’ll receive credit for all the jail time
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and the prison time. So, nothing changes except for the fact of –
{¶ 12} “Griffie: So, I’ll have PRC?
{¶ 13} “Defense Counsel: Right.
{¶ 14} “The Court: Right.
{¶ 15} “Griffie: That’s effective at the end of this sentence, right?
{¶ 16} “Defense Counsel: Yes.
{¶ 17} “Griffie: Okay. It would be effective the 26th of next month?
{¶ 18} “Defense Counsel: Whatever your out date is.
{¶ 19} “Griffie: Okay.
{¶ 20} “The Court: Yes. I don’t have your out date in front of me, sir, but
whatever out date they have given you, that’s when this takes place.
{¶ 21} “Griffie: Thank you.”
{¶ 22} Based on the foregoing exchange, Griffie asserts that the trial court
essentially advised him that his five-year term of post-release control in Case No.
2002 CR 2943 would begin when his prison sentence was completed in that case
despite the fact that he would still be serving a prison sentence in another,
unrelated case. Griffie further asserts that because his prison sentence in Case
No. 2002 CR 2943 has been completed, the trial court is now without jurisdiction to
hold a re-sentencing hearing in order to correct his post-release control sentence.
State v. Arnold, 189 Ohio App.3d 238, 2009-Ohio-3636. As a result, Griffie argues
that he cannot be subject to a term of post-release control in Case No. 2002 CR
2943. Id. Griffie’s argument, although inventive, is not supported by the record and
is wholly without merit.
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{¶ 23} Initially, we note that the trial court specifically advised Griffie and his
counsel at the end of the re-sentencing hearing as follows:
{¶ 24} “The Court: Okay. I explained to you, sir, that following your release
from prison you will be required to serve a period of five years’ post-release control
under the supervision of the Parole Board. That’s where we went a little bit astray,
my fault.”
{¶ 25} Accordingly, the record establishes that Griffie was put on explicit
notice at the re-sentencing hearing that his mandatory term of post-release control
would begin upon his release from prison, not upon the completion of his prison
sentence in Case No. 2002 CR 2943. The court also explained the consequences
of violating post-release control provisions or committing additional violations of the
law. The record further establishes that the trial court was unaware of and had no
information regarding Griffie’s conviction and sentence in Case No. 1993 CR 1939.
{¶ 26} Moreover, a court speaks through its journal entries. Hairston v.
Seidner, 88 Ohio St.3d 57, 2000-Ohio-271. The amended termination entry
specifically states in pertinent part:
{¶ 27} “The Court notifies the defendant that, as part of his sentence, the
defendant WILL be supervised by the Parole Board for a period of FIVE (5) years
Post-Release Control after the defendant’s release from prison.”
{¶ 28} The language used by the trial court in its amended termination entry
echoes the language used by the General Assembly in R.C. 2967.28(B) regarding
the imposition of post-release control after a conviction for a felony of the first
degree. R.C. 2967.28(B) states in pertinent part:
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{¶ 29} “Each sentence to a prison term for a felony of the first degree *** and
in the commission of which the offender caused or threatened to cause physical
harm to a person shall include a requirement that the offender be subject to a
period of post-release control imposed by the parole board after the offender’s
release from imprisonment. ***.”
{¶ 30} Accordingly, at the re-sentencing hearing on May 18, 2010, Griffie
was correctly advised by the trial court that he would be subject to a mandatory
five-year term of post-release control upon his release from prison. Following the
hearing, the trial court issued an amended termination entry which correctly
reflected that Griffie would be subject to mandatory post-release control upon his
release from prison. The record does not support Griffie’s claim that he was
entitled to post-release control credit prior to his ultimate release from prison in
another, unrelated case. Thus, the trial court did not err when it advised Griffie of
his post-release control rights in Case No. 2002 CR 2943.
{¶ 31} Griffie’s first assignment of error is overruled.
III
{¶ 32} Griffie’s second and final assignment of error is as follows:
{¶ 33} “THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
FAILED TO INCLUDE ITS FINDINGS IN THE AMENDED TERMINATION ENTRY
DENYING THE DEFENDANT SHOCK PAROLE, INTENSIVE PROGRAM PRISON,
AND TRANSITIONAL CONTROL.”
{¶ 34} In his final assignment, Griffie argues that the trial court erred when it
disapproved of his placement in a shock incarceration program and intensive
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prison program in the termination entry without first making specific findings
required by R.C. 2929.19(D). In its appellee’s brief, the State concedes that the
trial court erred when it failed to make any findings on the record or in the amended
termination entry regarding its decision to disapprove of shock incarceration
program and intensive prison program for Griffie.
{¶ 35} R.C. 2929.19(D) provides that:
{¶ 36} “The sentencing court, pursuant to division (K) of section 2929.14 of
the Revised Code, may recommend placement of the offender in a program of
shock incarceration under section 5120.031 of the Revised Code or an intensive
program prison under section 5120.032 of the Revised Code, disapprove
placement of the offender in a program or prison of that nature, or make no
recommendation. If the court recommends or disapproves placement, it shall
make a finding that gives its reasons for its recommendation or disapproval.”
{¶ 37} In State v. Howard, 190 Ohio App.3d 734, 2010-Ohio-5283, we held
that a trial court errs when it disapproves of shock incarceration or intensive
program prison without making certain findings required by R.C. 2929.14. We also
held that it is premature for a trial court, at sentencing, to disapprove transitional
control.
{¶ 38} However, with respect to the trial court’s error in having disapproved
of shock incarceration and intensive program prison in this case, this error is
necessarily harmless, because Griffie, as a first-degree felon, is not eligible for
either program. R.C. 5120.031(A)(4) and R.C. 5120.032(B)(2)(a). See also State
v. Porcher, Montgomery App. No. 24058, 2011-Ohio-5976.
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{¶ 39} Lastly, we note that the trial court erred in prematurely disapproving
Griffie for transitional control in the amended termination entry. This error,
however, can be cured by remanding this cause to the trial court for the limited
purpose of amending the termination entry to delete the disapproval of Griffie for
transitional control. See State v. Howard, 2010-Ohio-5283; State v. Porcher,
2011-Ohio-5976.
{¶ 40} Griffie’s second assignment of error is sustained to the limited extent
indicated; otherwise, it is overruled as harmless error.
IV
{¶ 41} Griffie’s first assignment of error having been overruled, and his
second assignment of error having been sustained to a limited extent, that part of
the trial court’s judgment entry disapproving Griffie for transitional control is
reversed, and this cause is remanded for the limited purpose of deleting that
provision from the judgment entry. In all other respects, the judgment of the trial
court is affirmed.
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GRADY, P.J. and FAIN, J., concur.
Copies mailed to:
Johnna M. Shia
Joe Cloud
Hon. Dennis Adkins