State v. Cvijetinovic , 2013 Ohio 3251 ( 2013 )

[Cite as State v. Cvijetinovic, 2013-Ohio-3251.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99316
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ALEKSANDA CVIJETINOVIC
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-368579
BEFORE: Keough, J., Boyle, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: July 25, 2013
ATTORNEY FOR APPELLANT
Edward M. Graham
13363 Madison Avenue
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristen L. Sobieski
Joseph J. Ricotta
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. The purpose of an accelerated appeal is to allow the
appellate court to render a brief and conclusory opinion. Crawford v. Eastland Shopping
Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th Dist.1983); App.R. 11.1(E).
{¶2} Defendant-appellant, Aleksanda Cvijetinovic, appeals the trial court’s
decision ordering a term of postrelease control to his sentence. For the reasons that
follow, we remand the case to the trial court to enter a nunc pro tunc sentencing journal
entry to reflect the imposition of postrelease control that was ordered at the 2003
resentencing hearing.
{¶3} In 1999, following a plea, Cvijetinovic was sentenced on three separate cases.
In CR-368577, he was sentenced to “4 years consecutive to CR-368579, and concurrent
to Case No. 368578 * * *.” In CR-368578, he was ordered to serve a total prison term of
7 years — “6 years on each Counts 1 and 2, concurrent, with 1 year firearm specification
on Count 1 to run consecutive and prior to Counts 1 and 2 * * *.” And in CR-368579, he
was ordered to serve a total of twelve years in prison — “9 years on each of counts 1 and
2 (concurrent) with 3 years on gun specification on Count 1 to run consecutive and prior
to Counts 1 and 2 * * *.”
{¶4} Cvijetinovic appealed his guilty pleas and sentence. In State v. Cvijetinovic,
8th Dist. Cuyahoga No. 81534, 2003-Ohio-536, this court upheld his guilty pleas, but
found the trial court did not make the necessary findings to support consecutive
sentences; thus, we reversed his sentences and remanded for resentencing.
{¶5} In 2003, the trial court conducted a resentencing hearing pursuant to this
court’s order. It also considered Cvijetinovic’s motion to withdraw his guilty plea,
which it ultimately denied. At resentencing, the trial court imposed the same aggregate
prison sentence as previously ordered in 1999. The trial court again sentenced
Cvijetinovic to four years in CR-368577, to run consecutive to CR-368579 and
concurrent with CR-368578. In CR-368578, the court again sentenced Cvijetinovic to a
total prison term of seven years — “1 year on firearm specifications as to each of Counts
1 and 2 to run prior to and consecutively to 6 years on underlying charges in Counts 1 and
2, counts to run concurrently with each other.” Finally, in CR-368579, the court
reimposed the 12 year sentence — “3 years on firearm specifications as to each of Counts
1 and 2 to run prior to and consecutively to 9 years on underlying charges in Counts 1 and
2, counts to run concurrently with each other but consecutively to CR-368577.”
{¶6} The transcript reveals that at the end of the resentencing hearing the trial
court advised Cvijetinovic that he would be subject to a mandatory term of five years
postrelease control; however, the trial court failed to include the order of postrelease
control in the sentencing journal entries. Cvijetinovic again appealed, challenging the
denial of his motion to withdraw his guilty pleas and his sentence. In State v.
Cvijetinovic, 8th Dist. Cuyahoga No. 82894, 2003-Ohio-7071, this court affirmed the trial
court’s decision denying the motion to withdraw his guilty pleas and upheld his sentence.
{¶7} In 2011, the trial court received notification from the Ohio Department of
Rehabilitation and Correction that postrelease control was not imposed on Cvijetinovic at
the time of resentencing. Accordingly, the trial court conducted a video conference
hearing on May 12, 2011, to order postrelease control. At the hearing, the trial court
advised Cvijetinovic that he had served his sentences on both cases — CR-368577 and
368578 and therefore, postrelease control would be imposed only on CR-368579.
Cvijetinovic contested that his 12-year sentence on CR-368579 was completed (including
all mandatory time for firearm specifications), and he was now serving his remaining
four-year sentence on CR-368577. The trial court disagreed, reasoning that
Cvijetinovic’s sentences were served based on the order of the case numbers — the
lowest case number was served first. The court then advised Cvijetinovic that he was
subject to five years mandatory postrelease control in CR-368579 because he was
convicted of first-degree felonies. Cvijetinovic did not file a direct appeal regarding the
imposition of postrelease control.
{¶8} In October 2012, Cvijetinovic moved to vacate the imposition of postrelease
control, contending that (1) the trial court imposed a period of postrelease control on a
sentence that was completed, and (2) he was not physically present in the courtroom for
the hearing.
{¶9} The trial court denied his motion. Cvijetinovic now appeals contending in
his sole assignment of error that the trial court erred and violated his constitutional rights
by adding postrelease control to his sentence after his sentence had already been served.
The state contends that Cvijetinovic’s appeal is barred by res judicata or, in the
alternative, that the imposition of postrelease control was proper.
{¶10} After a thorough review of the entire record, we find that the trial court
advised Cvijetinovic that he was subject to a mandatory term of five years postrelease
control at the 2003 sentencing hearing, but failed to include the condition in the
sentencing journal entry. This omission can be corrected nunc pro tunc. See State ex
rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶ 14; State
v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, syllabus (“When a
defendant is notified about postrelease control at the sentencing hearing, but notification
is inadvertently omitted from the sentencing entry, the omission can be corrected with a
nunc pro tunc entry and the defendant is not entitled to a new sentencing hearing.”); State
v. Murray, 2012-Ohio-4996, 979 N.E.2d 831, ¶ 23 (6th Dist.) (nunc pro tunc correction of
judgment on issue of postrelease control permissible even after offender served his
sentence and released from prison) In 2003, Cvijetinovic’s 12-year sentence on the first
degree felonies in CR-368579 had yet to be completed. Therefore, the advisement of
five years of mandatory postrelease control was proper.
{¶11} Accordingly, Cvijetinovic’s assignment of error is overruled. Judgment
affirmed, but case remanded to the trial court to correct the 2003 sentencing journal entry
by nunc pro tunc entry to reflect the imposition of the mandatory term of five years
postrelease control on Case No. CR-368579.
It is ordered that the parties share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR