State v. Ables , 2011 Ohio 5873 ( 2011 )

[Cite as State v. Ables, 2011-Ohio-5873.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 10-11-03
v.
MATTHEW J. ABLES, OPINION
DEFENDANT-APPELLANT.
Appeal from Mercer County Common Pleas Court
Trial Court No. 04-CRM-005
Judgment Reversed and Cause Remanded
Date of Decision: November 14, 2011
APPEARANCES:
James A. Tesno for Appellant
Matthew K. Fox for Appellee
Case No. 10-11-03
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Matthew J. Abels (“Abels”), appeals the
judgment of the Mercer County Court of Common Pleas, entering a nunc pro tunc
judgment entry of sentencing to add a three-year period of post-release control to
his original 2004 sentencing judgment entry. On appeal, Abels contends that the
trial court did not have the authority to modify his sentence with the addition of a
period of post-release control because he had already completed his sentence. For
the reasons set forth below, the judgment is reversed.
{¶2} On April 1, 2004, pursuant to a plea agreement, Abels pled guilty to
the illegal manufacture of drugs or cultivation of marijuana pursuant to R.C.
2925.04(A)(C)(2), a felony of the second degree. On April 29, 2004, the trial
court sentenced Abels to six years in prison for this offense in Case #04-CRM-
005. The sentencing entry specifically stated that this prison term was to be
served first, and then the ten-month sentences in each of two other separate and
unrelated cases, Case #03-CRM-087 (for non-support) and Case #03-CRM-117
(for possession of drugs) were “to follow consecutively.” (Apr. 29, 2004 J.E.)
The journal entry did not state that Abels was subject to post- release control.1
1
The record did not contain a copy of the sentencing hearing transcript. However, the axiomatic rule is
that a court speaks through its journal entries. State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940
N.E.2d 924, ¶13.
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{¶3} More than six years later, on December 20, 2010, the trial court issued
a “Nunc Pro Tunc on Judgment Entry Sentencing,” adding language that Abels
would be required to serve a period of three years of post-release control. There
was no sentencing hearing; Abels was not returned to the court to address the trial
court’s imposition of the sentence; and, Abels stated that he did not receive notice
of the new judgment entry. The judgment entry indicated that it was served on his
court-appointed counsel from 2004.
{¶4} On February 7, 2011, Abels filed a motion for leave to file a delayed
appeal pursuant to App.R. 5(A) because he had not received timely notice of the
new judgment entry. This Court granted Abels’ motion for a delayed appeal and
appointed counsel. On May 12, 2011, Abels filed his appeal from the “nunc pro
tunc judgment” entry, raising the following assignment of error for our review.
Assignment of Error
A trial court that failed to impose post release control on a
Defendant in its original sentencing entry may not do so through
a Nunc Pro Tunc Entry after the Defendant has completed
serving his prison sentence in that case.
{¶5} Abels asserts that when the trial court issued its “nunc pro tunc” entry
on December 20, 2010, he had already completed serving his six-year sentence in
this case. Abels maintains that the trial court did not have jurisdiction to modify
his sentence and add a new penalty subjecting him to three years of post-release
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control, almost eight months after he had completed his sentence. The State did
not file an appellee’s brief to contest this matter.
{¶6} A trial court must notify an offender of the length of the term of post-
release control that applies to his conviction and then incorporate that notification
into its sentencing entry. State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462,
909 N.E.2d 1254, ¶68. Sentencing entries that fail to include the required
notifications are void because they are contrary to law. State v. Fischer, 128 Ohio
St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332, paragraph one of the syllabus.
{¶7} R.C. 2929.191, effective July 11, 2006, established procedures to
allow a trial court to correct judgments of conviction when the court originally
failed to notify an offender of post-release supervision requirements or failed to
include a statement to that effect in the judgment of conviction. State v. Arnold,
289 Ohio App.3d 238, 2009-Ohio-3636, 938 N.E.2d 45, ¶27. However, by the
statute's own terms, the remedy must be made before an offender is released from
imprisonment under the subject period of incarceration. R.C. 2929.191(A)(1) and
(B)(1) (“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 section,
the court may prepare and issue a correction to the judgment of conviction * * *.”
(Emphasis added.); Hernandez v. Kelly, 108 Ohio St.3d 395, 2006–Ohio–126, 844
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N.E.2d 301 (holding that resentencing to impose post-release control is not an
option once the defendant has completed his prison term).
{¶8} The Supreme Court of Ohio has repeatedly stated that “once an
offender has completed the prison term imposed in his original sentence, he cannot
be subjected to another sentencing to correct the trial court's flawed imposition of
postrelease control.” Bloomer at ¶70, citing to State v. Bezak, 114 Ohio St.3d 94,
2007-Ohio-3250, 868 N.E.2d 961, ¶18, and State v. Simpkins, 117 Ohio St.3d 420,
2008-Ohio-1197, 884 N.E.2d 568, at the syllabus. “[I]n the absence of a proper
sentencing entry imposing postrelease control, the parole board's imposition of
postrelease control cannot be enforced.” Bloomer at ¶71.
{¶9} Although Ables was still in prison at the time the trial court issued its
nunc pro tunc judgment, he was incarcerated for the sentences for the other cases,
which were felonies of the fifth degree. The trial court had specifically stated that
Ables was to serve his six-year sentence for this case (Case #04-CRM-005) first,
and that sentence for this case was completed earlier in the year. The facts in this
case are distinguishable from other cases when a defendant is serving multiple
sentences and the trial court does not specify any order in which the sentences are
to be served. See, e.g., State v. Arnold, 189 Ohio App.3d 238, 2009-Ohio-3636,
938 N.E.2d 45, ¶¶51-53 (where sentencing termination entries failed to state which
of defendant's consecutive sentences was to be served first, which could have
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significance with respect to the postrelease control that had been imposed). It is
the expiration of the prisoner's journalized sentence rather than the defendant’s
ultimate release from prison that determines a trial court's authority to resentence.
See Arnold at ¶35; State v. Turner, 10th Dist. No. 06AP-491, 2007-Ohio-2187,
¶18.
{¶10} Because the trial court's December 20, 2010 judgment entry was
entered after Ables’ prison sentence for this case had concluded, it was wholly
without effect. Ables’ assignment of error is well-taken and it is affirmed.
{¶11} Having found error prejudicial to the Appellant herein in the
particulars assigned and argued, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
ROGERS, P.J. and PRESTON, J., concur.
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