State v. McCrae

[Cite as State v. McCrae, 2016-Ohio-8182.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
:
TWAN E. MCCRAE : Case No. CT2016-0047
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR1999-0092
JUDGMENT: Affirmed in part; Reversed and Remanded
in part
DATE OF JUDGMENT ENTRY: December 9, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX TWAN E. MCCRAE
Prosecuting Attorney #A392-042
BY GERALD V. ANDERSON II. London Correctional Institution
Assistant Prosecuting Attorney Box 69
27 North Fifth St., Box 189 London, OH 43140
Zanesville, OH 43702
Muskingum County, Case No. CT2016-0047 2
Gwin, P.J.
{¶1} Appellant Twan McCrae appeals the August 8, 2016 judgment entry of the
Muskingum County Court of Common Pleas. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} In February of 2000, a jury found appellant not guilty of aggravated murder,
but guilty of the lesser included offense of murder and of two counts of having a weapon
while under disability. By entry filed on April 3, 2000, the trial court sentenced appellant
to an indefinite term of fifteen years to life on the murder count, plus a mandatory three
year prison term for a firearm specification, to be served consecutively. As for the
weapons charges, the trial court merged the two counts and sentenced appellant to five
years in prison, to be served consecutively to the other sentences. In the sentencing
entry and at the sentencing hearing, the trial court provided post-release control was
“mandatory up to a maximum of five years.” In the entry, the trial court also stated it
informed appellant of the consequences for violating post-release control. Appellant is
currently incarcerated and is serving his original sentence.
{¶3} Appellant filed a direct appeal and argued the trial court erred in admitting
a firearm into evidence that was not the actual firearm used on the evening in question.
In State v. McCrae, 5th Dist. Muskingum No. CT2000-0012, 2000 WL 1884829 (Dec. 20,
2000), we overruled appellant’s assignment of error and affirmed his conviction.
{¶4} On June 17, 2016, appellant filed a motion for resentencing to vacate void
sentence pursuant to R.C. 2967.28. Appellant argued the trial court failed to properly
impose post-release control and requested a de novo sentencing hearing. Appellee filed
a response on June 26, 2016 and stated the term of post-release control given to
Muskingum County, Case No. CT2016-0047 3
appellant at the sentencing hearing and in the original sentencing entry was incorrect.
Rather than five years mandatory post-release control, appellant should have been given
three years of optional post-release control. However, appellee argued the trial court
should not hold a de novo sentencing hearing, but should hold a resentencing hearing
only on the issue of post-release control.
{¶5} On August 8, 2016, the trial court issued a nunc pro tunc sentencing entry
changing the language contained in the sentencing entry regarding post-release control
from a mandatory five year term to an optional term for up to three years.
{¶6} Appellant appeals the August 8, 2016 judgment entry of the Muskingum
County Court of Common Pleas and assigns the following as error:
{¶7} “I. DID THE TRIAL COURT ERROR WHEN IT ISSUED A NUNC PRO
TUNC AND FAILED TO HOLD A DE NOVO RESENTENCING HEARING IN THIS CASE
PURSUANT TO APPELLANT BEING CONVICTED PRIOR TO JULY 11, 2006.”
I.
{¶8} In his brief, appellant makes two separate arguments: that the trial court
erred in not giving him a de novo sentencing hearing and that the trial court erred in
issuing a nunc pro tunc entry without holding a resentencing hearing.
{¶9} We first address appellant’s argument that the trial court erred in issuing a
nunc pro tunc entry to correct the term of post-release control without holding a
resentencing hearing.
{¶10} Appellee concedes the term of post-release control should be a three-year
discretionary term and that the term of post-release control was misstated at the
sentencing hearing and in the resulting judgment entry, but argues since appellant was
Muskingum County, Case No. CT2016-0047 4
advised of five years of mandatory post-release control and the nunc pro tunc entry
corrected that to a lesser term of three years of discretionary post-release control,
appellant fails to show harm and/or prejudice. Appellee further contends that, at most,
appellant may be resentenced solely on the issue of post-release control.
{¶11} R.C. 2929.191 sets forth a procedure for the trial court to correct a judgment
of conviction when the trial court failed to properly notify a defendant about the requisite
post-release control at both the sentencing hearing and in the final judgment entry. The
statute applies to sentenced offenders whose sentence has not been completed. Under
these circumstances, the trial court may, after holding a hearing, issue a nunc pro tunc
correction to the judgment of conviction. State v. Camp, 5th Dist. Delaware No.
10CAA080066, 2011-Ohio-3215; State v. Valentin, 5th Dist. Ashland No. 15-COA-020,
2015-Ohio-5396. The court’s placement of the nunc pro tunc entry on the journal has the
same effect as if the court had included the correct notification in the original sentencing
entry and had notified the offender of the applicable term of post-release control at the
original sentencing hearing. Id. The offender has the right to be present at the hearing,
but the court may permit the offender to appear at the hearing by video conferencing
equipment. State v. Miller, 5th Dist. Stark No. 2013CA00115, 2014-Ohio-18; State v.
Minor, 5th Dist. Richland No. 15CA81, 2016-Ohio-914 (stating case law does not require
the trial court to make appellant physically present for the limited purposes of
resentencing to properly impose post-release control).
{¶12} Appellant’s sentence has not been completed. In this case, where appellant
was not properly notified of the correct term of post-release control at the sentencing
hearing or in the final sentencing entry, the trial court erred in resentencing appellant
Muskingum County, Case No. CT2016-0047 5
through a nunc pro tunc journal entry. See State v. Valentin, 5th Dist. Ashland No. 15-
COA-020, 2015-Ohio-5396.
{¶13} We next address appellant’s contention that he is entitled to a de novo
sentencing hearing. In State v. Fisher, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d
332, the Ohio Supreme Court held, “only the offending portion of the sentence is subject
to review and correction” and thus the “new sentencing hearing to which an offender is
entitled * * * is limited to proper imposition of post-release control.” Therefore, while
appellant’s sentence is void with respect to post-release control, the remainder of his
sentence is valid under the principles of res judicata. Id. This Court has applied Fisher
to cases in which defendants were sentenced prior to July 11, 2006, and affirmed
decisions in which the trial court denied the defendant a de novo sentencing hearing.
State v. Minor, 5th Dist. Richland No. 15CA81, 2016-Ohio-914; see also State v. Bunting,
5th Dist. Stark Nos. 2011 CA 00112, 2011 CA 00130, 2011 CA 00131. Accordingly,
appellant is not entitled to a de novo sentencing hearing.
{¶14} Based on the foregoing, we overrule appellant’s assignment of error in part
and sustain appellant’s assignment of error in part. We find appellant’s sentence with
regards to post-release control must be corrected via a resentencing hearing. However,
a de novo sentencing hearing is not required. The limited resentencing must cover only
the imposition of post-release control and the remainder of the sentence is valid under
the principle of res judicata.
Muskingum County, Case No. CT2016-0047 6
{¶15} The judgment of the Muskingum County Court of Common Pleas, is
affirmed in part and reversed and remanded in part.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur