State v. Brister , 2013 Ohio 5874 ( 2013 )

[Cite as State v. Brister, 2013-Ohio-5874.]
IN THE COURT OF APPEALS
FIFTH APPELLATE DISTRICT
GUERNSEY COUNTY, OHIO
STATE OF OHIO : JUDGES:
:
Plaintiff-Appellee :
: Hon., Patricia A. Delaney, J.
: Hon., W. Scott Gwin, P.J
-vs- : Hon., William B. Hoffman, J.
:
DARRELL BRISTER : CASE NO. 13 CA 21
:
Defendant-Appellant :
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Common Pleas
Court, Case No. 04-CR-05
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 17, 2013
APPEARANCES:
For Appellant For Appellee
Lindsey K. Donehue No Appearance
Atty. Reg. No. 0082406
P.O. Box 464
Cambridge, Ohio 43725
and
Darrell Brister, Pro Se
G.C.I (468-169)
2500 South Avon-Belden Rd.
Grafton, Ohio 44044
Guernsey County, Case No. 13 CA 21 2
Delaney, J.,
{¶1} Appellant, Darrell Brister, appeals from two trial court entries both dated
May 15, 2013. On April 23, 2013, Appellant filed a “Motion to Correct Void Sentence”
with the trial court. In response to the motion, the trial court issued two entries. One of
the entries grants in part and denies in part Appellant’s “Motion to Correct Void
Sentence.” The second entry is a “Nunc Pro Tunc Judgment Entry of Sentence.”
{¶2} Appellant was found guilty of murder with a firearm specification by a jury
in 2004. He appealed his conviction and sentence to this Court which was affirmed by
this Court in 2005.
{¶3} When Appellant was sentenced in 2004, the trial court imposed a
mandatory term of post release control. In his “Motion to Correct Void Sentence,”
Appellant argued the trial court erred in imposing a term of post release control because
Appellant had been convicted of murder which is an unclassified felony to which post
release control is inapplicable.
{¶4} The trial court agreed in part with Appellant and issued a “Nunc Pro
Tunc” sentencing entry deleting the reference to post release control. The trial court
denied Appellant’s request for a de novo sentencing hearing. A timely notice of appeal
was filed from the May 15, 2013 entries.
{¶5} Counsel for Appellant has filed a motion to withdraw and brief pursuant
to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In Anders,
the United States Supreme Court held if, after a conscientious examination of the
record, a defendant’s counsel concludes the case is wholly frivolous, then he should
Guernsey County, Case No. 13 CA 21 3
so advise the court and request permission to withdraw. Id. at 744. Counsel must
accompany his request with a brief identifying anything in the record that could arguably
support his client’s appeal. Id. Counsel also must: (1) furnish his client with a copy of
the brief and request to withdraw; and, (2) allow his client sufficient time to raise any
matters that the client chooses. Id. Once the defendant’s counsel satisfies these
requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also determines
that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and
dismiss the appeal without violating constitutional requirements, or may proceed to a
decision on the merits if state law so requires. Id.{¶6} Counsel for Appellant has filed brief with one proposed assignment of
error. Appellant has also filed a pro se brief raising an additional assignment of error.
The assignments of error are as follows:
I.
{¶7} “THE TRIAL COURT ERRED WHEN IT RESENTENCED APPELLANT”
II.
{¶8} “THE TRIAL COURT IMPROPERLY REMOVED POST-RELEASE
CONTROL WITHOUT THE DEFENDANT BEING PRESENT, IN VIOLATION OF R.C.
2929.121, R.C. 2967.28, CRIM. R. 36, AND CRIM. R. 43”
{¶9} Because they are related, we will address both assignments of error
together. Both counsel and Appellant argue Appellant’s sentence should have been
vacated in its entirety. Appellant further argues he should have been physically present
to receive a new sentence rather than the trial court issuing a nunc pro tunc entry.
Guernsey County, Case No. 13 CA 21 4
Finally, counsel for Appellant argues Appellant should have received a new trial after
the sentence was vacated.
{¶10} The Ohio Supreme Court has explained when a problem exists in a
sentencing entry related to post release control, “It is only the post release-control
aspect of the sentence that is void and that must be rectified.” State v. Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.
{¶11} Appellant’s sole basis for suggesting his sentence was void was the fact
that post release control was improperly imposed for Appellant’s murder conviction and
sentence. The only issue presented to the trial court was the contention that post
release control is inapplicable to a murder conviction because it is an unclassified
felony. “[A]n individual sentenced for aggravated murder . . . is not subject to post
release control, because that crime is an unclassified felony to which the post release-
control statute does not apply. R.C. 2967.28.” State v. Clark, 119 Ohio St.3d 239, 2008-
Ohio-3748, 893 N.E.2d 462.
{¶12} The trial court did err in 2004 when it included post release control as a
term of Appellant’s sentence. Because the only alleged error in the sentence is post
release control, we find only the post release control portion of Appellant’s 2004
sentence was subject to change.
{¶13} The question before us is whether the trial court was required to conduct
a new sentencing hearing to remove the improperly imposed term of post release
control. Other courts have held a new hearing is unnecessary.
{¶14} In a case similar to the case at bar, the Tenth District explained, “It is not
disputed that appellant was convicted of murder, which is an unclassified felony to
Guernsey County, Case No. 13 CA 21 5
which the post-release control statute does not apply. Clark, supra, 119 Ohio St.3d 239,
2008–Ohio–3748, ¶ 36; State v. Gripper, 10th Dist. No. 10AP–1186, 2011–Ohio–3656,
¶ 10. Accordingly, the inclusion of post-release control language in appellant's
sentencing entry was in error. It is appellant's position that this renders his entire
sentence void and that a de novo sentencing hearing is required to correct this error.
We disagree.
***
{¶15} In the case sub judice, the trial court included post-release control
language in appellant's sentence even though appellant was convicted of murder, an
unclassified felony. Pursuant to Fischer, and also Evans and Lawrence, it is clear that
this does not render appellant's entire sentence void, nor does it require a de novo
sentencing hearing. Moreover, the record reflects that the superfluous post-release
control language has been removed from the sentencing entry pursuant to the judgment
entry filed on March 17, 2011.” State v. Silguero, 10th Dist. Franklin No. 11AP-274,
2011-Ohio-6293.
{¶16} The legislature has provided in R.C. 2929.191 an avenue to correct post
release control in certain situations such as where the sentencing entry conflicts with
the oral pronouncement or where the term of post release control was omitted. The
statute, however, does not address a scenario where the term of post release control
was improperly included.
{¶17} In approving the use of a nunc pro tunc entry to correct the erroneous
inclusion of post release control, the Eighth District held, “[Th]e instant matter presents
none of the three scenarios outlined in R.C. 2929.191(A) or (B), set forth above. The
Guernsey County, Case No. 13 CA 21 6
trial court did not fail to notify defendant that he would be subject to post-release control,
did not fail to notify him that the parole board could impose a prison term for a violation
of post release control, and did not fail to have statutorily mandated notices
incorporated into his sentencing entries. R.C. 2929.191(A) and (B). We therefore
conclude that R.C. 2929.191 and Singleton are inapplicable herein.
{¶18} Further, with regard to whether the trial court employed a correct
procedure in entering a nunc pro tunc deletion of the postrelease control provision, we
note that a trial court may use a nunc pro tunc entry to correct mistakes in judgments,
orders, and other parts of the record so the record speaks the truth. State v. Greulich,
61 Ohio App.3d 22, 24, 572 N.E.2d 132 (9th Dist.1988).” State v. Rolling 8th Dist.
Cuyahoga No. 95473, 2011-Ohio-121.
{¶19} Based upon the foregoing, we find the trial court did not err in issuing a
nunc pro tunc entry removing the improperly imposed term of post release control.
Finally, there is no authority for counsel’s bare assertion that a new trial is required
when a term of post release control has been improperly imposed.
Guernsey County, Case No. 13 CA 21 7
{¶20} For these reasons, we grant counsel’s motion to withdraw and overrule
both assignments of error. The judgment of the Guernsey County Court of Common
Pleas is affirmed.
By Delaney, P.J.
Gwin, J. and
Hoffman, J. concur
______________________________
HON. PATRICIA A. DELANEY
______________________________
HON. W. SCOTT GWIN
______________________________
HON. WILLIAM B. HOFFMAN
[Cite as State v. Brister, 2013-Ohio-5874.]
IN THE COURT OF APPEALS
FIFTH APPELLATE DISTRICT
GUERNSEY COUNTY, OHIO
STATE OF OHIO :
: CASE NO. 13 CA 21
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DARRELL BRISTER :
:
Defendant-Appellant :
For the reasons stated in our accompanying Memorandum-Opinion, the
Motion to withdraw of counsel is granted, and the judgment of the Common
Pleas Court of Guernsey County, Ohio is affirmed.
Costs to Appellant.
____________________________
HON. PATRICIA. DELANEY
____________________________
HON. W. SCOTT GWIN
____________________________
HON. WILLIAM B. HOFFMAN