State v. Nascembeni

[Cite as State v. Nascembeni, 2022-Ohio-1662.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109927
v. :
JAMES NASCEMBENI, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: May 19, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-644538-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Jillian J. Piteo, Assistant Prosecuting Attorney,
for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
John T. Martin, Assistant Public Defender, for appellant.
ANITA LASTER MAYS, J.:
Plaintiff-appellant James Nascembeni (“Nascembeni”) appeals the
sentence imposed by the trial court arising from a guilty plea and conviction for
failure to verify a current address pursuant to R.C. 2950.06(F), a second-degree
felony. We affirm in part, vacate in part, and remand.
I. Background.
The issues in the case arise solely from the sentence imposed on
March 19, 2020. The journal entry provides:
Defendant is sentenced under the Reagan Tokes Law SB 201 to 2 years
aggregate minimum sentence to 3 years aggregate maximum sentence.
***
Defendant notified that there is a rebuttable presumption that the
defendant shall be released from service of the sentence at the
expiration of the minimum term, but that said presumption may be
rebutted at a hearing under R.C. 2967.271, if DRC makes specified
determination regarding the defendant’s conduct while confined, the
offender’s threat to society, the offender’s restrictive housing, if any,
while confined, and the offender’s security classification defendant
notified he may be eligible for reduction of his minimum term under
R.C. 2967.271. * * *
The court considered all required factors of the law.
The court finds that prison is consistent with the purpose of
R.C. 2929.11.
The court imposes a prison sentence at the Lorain Correctional
Institution of 2 year(s).
Count 1 - 2 years.
Postrelease control is part of this prison sentence for 3 years mandatory
for the above felony(s) under R.C.2967.28. Defendant advised that
if/when post release control supervision is imposed following his/her
release from prison and if he/ she violates that supervision or condition
of post release control under RC 2967.131(B), parole board may impose
a prison term as part of the sentence of up to one-half of the stated
prison term originally imposed upon the offender.
The court determines that the defendant is approved for placement into
intensive program prison.
Defendant to receive jail time credit for 113 day(s), to date.
Credit for time served November 27, 2019 – present.
Journal entry No. 1129866791 (Mar. 19, 2020).
Nascembeni files a timely appeal challenging portions of his sentence.
II. Assignments of Error
Nascembeni presents three assignments of error:
I. As amended by the Reagan Tokes Law, the Revised Code’s
sentences for first-and-second-degree qualifying felonies
violates the Constitutions of the United States and the State of
Ohio; the trial court plainly erred in imposing a Reagan Tokes
indefinite sentence.
II. The trial court erred when it included a three-year postrelease
control term in the journal entry memorializing the sentence
even though the trial court did not state a number of years for
postrelease control during the sentencing hearing and thus did
not impose a postrelease control term in this case.
III. The trial court erred when, after stating in open court that court
costs were waived, it imposed court costs in the journal entry
memorializing the sentence.
III. Discussion
A. Reagan Tokes
Nascembeni first argues that the first- and second-degree sentences
imposed under S.B. 201 (“Reagan Tokes Law”) are unconstitutional. On March 24,
2022, this court granted Nascembeni’s motion to withdraw the first assigned error
and address the second and third assigned errors only. After an appellant withdraws
an assigned error, the appellate court may limit its review to the remaining
assignments of error. Admiral Ins. Co. v. Seifert Technologies, Inc., 5th Dist. Stark
No. 2011CA00002, 2011-Ohio-5196, ¶ 24-25; Johnson v. Auto-Owners Ins. Co., 11th
Dist. Lake Nos. 2002-L-123, 2002-L-131, 2005-Ohio-237, ¶ 2; State v. Giannini, 7th
Dist. Mahoning No. 97 C.A. 254, 1998 Ohio App. LEXIS 6023, 3 (Dec. 11, 1998); Pine
Creek Farms v. Hershey Equip. Co., 4th Dist. Scioto No. 96CA2458, 1997 Ohio App.
LEXIS 3107, 4 (July 7, 1997), fn. 1.
Thus, we limit our review to the second and third assigned errors.
B. Postrelease control
Nascembeni argues under the second assigned error that the trial
court failed to state at sentencing that the postrelease control period would be for
three years but included the three-year postrelease control period in the sentencing
entry. This failure, argues Nascembeni, means that postrelease control was not
validly imposed and postrelease control that is not properly imposed cannot be
validated by journal entry.
Because a trial court has a statutory duty to provide notice of
postrelease control at the sentencing hearing, any sentence imposed without proper
notice of postrelease control is contrary to law. State v. Grimes, 151 Ohio St.3d 19,
2017-Ohio-2927, 85 N.E.3d 700, ¶ 8, citing State v. Jordan, 104 Ohio St.3d 21,
2004-Ohio-6085, 817 N.E.2d 864, ¶ 23 (both overruled on other grounds by State v.
Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248). “Concomitantly,
because a court is generally said to speak only through its journal, [Jordan] at ¶ 6,
the trial court is ‘required to incorporate that notice into its journal entry imposing
[the] sentence,’ [Jordan] at ¶ 17.” Id.A statutorily compliant imposition of postrelease control requires
that the trial court advise the defendant of three things at the sentencing hearing
and in the sentencing entry: “(1) whether postrelease control is discretionary or
mandatory, (2) the duration of the postrelease control period, and (3) a statement
to the effect that the Adult Parole Authority will administer the postrelease control
pursuant to R.C. 2967.28 and that any violation by the offender of the conditions of
postrelease control will subject the offender to the consequences set forth in that
statute.” Id. at ¶ 1. “[A]ny error in the exercise of [the court’s] jurisdiction in
imposing postrelease control renders the court’s judgment voidable, permitting the
sentence to be set aside if the error [is] successfully challenged on direct appeal.”
Harper at ¶ 4.
The Supreme Court of Ohio has determined that “[n]either [Ohio
Supreme Court] jurisprudence nor Ohio’s criminal-sentencing statutes allow a trial
court to resentence a defendant for an offense when the defendant has already
completed the prison sanction for that offense.” State v. Holdcroft, 137 Ohio St.3d
526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 19. This includes resentencing to correct the
faulty imposition of postrelease control:
This court has consistently and repeatedly held that a trial court loses
jurisdiction to resentence a defendant for the purpose of imposing
postrelease control once the defendant has served his entire sentence
of incarceration. Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-
126, 844 N.E.2d 301, ¶ 32; State v. Bloomer, 122 Ohio St.3d 200, 2009-
Ohio-2462, 909 N.E.2d 1254, ¶ 70; State v. Simpkins, 117 Ohio St.3d
420, 2008-Ohio-1197, 884 N.E.2d 568, syllabus, superseded on other
grounds by statute as stated in State v. Singleton, 124 Ohio St.3d 173,
2009-Ohio-6434, 920 N.E.2d 958; State v. Bezak, 114 Ohio St.3d 94,
2007-Ohio-3250, 868 N.E.2d 961, ¶ 18, overruled on other grounds by
State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.
Id. at ¶ 5. Accord State v. Bishop, 8th Dist. Cuyahoga No. 110423, 2021-Ohio-4168,
¶ 13; State v. Trone, 8th Dist. Cuyahoga Nos. 108952, 108966, 2020-Ohio-384, ¶ 17,
citing State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, at ¶ 16
(“It has long been held that after an offender has completed the prison term imposed
in his original sentence, the offender cannot be subject to another sentencing to
correct a trial court’s flawed imposition of postrelease control.”).
More recently, the Ohio Supreme Court reaffirmed that without
proper imposition postrelease control “[a defendant’s] liberty would not be
restrained after he served his prison sentence and he would not be under the
obligations associated with supervision.” State v. Bates, Slip Opinion No. 2022-
Ohio-475, ¶ 21; State v. Harris, 8th Dist. Cuyahoga No. 91947, 2009-Ohio-1695,
¶ 10.
Here, the trial court failed to impose a term of postrelease control at
Nascembeni’s sentencing hearing. The state argues that the trial court properly
notified Nascembeni of postrelease control at his February 26, 2020 plea hearing
and corresponding journal entry and again journalized the term of postrelease
control in its March 19, 2020 sentencing entry. Notice of postrelease control at the
plea hearing and in the sentencing entry does not correct the trial court’s failure to
impose a term of postrelease control at the sentencing hearing. Harris at ¶ 3-4, 10.
The trial court was required to impose a term of postrelease control at sentencing.
Having failed to do so renders the postrelease control portion of Nascembeni’s
sentence voidable. If Nascembeni were still serving his prison sentence, he would
be subject to resentencing. Because Nascembeni has already served his prison
sentence, the trial court no longer has jurisdiction to resentence him. Id. at ¶ 9.
The second assigned error is sustained.
C. Imposition of Fines and Costs
Nascembeni argues that the trial court inaccurately journalized that
court costs were imposed when they were not. Nascembeni requests a nunc pro tunc
order reflecting the decision to waive the costs. “‘The function of a nunc pro tunc
entry is not to change, modify, or correct erroneous judgments, but merely to have
the record speak the truth.’” State v. Kimmie, 8th Dist. Cuyahoga No. 98979, 2013-
Ohio-2906, ¶ 20, quoting Ruby v. Wolf, 39 Ohio App. 144, 147, 177 N.E. 240 (8th
Dist.1931). See also, State v. Taylor, 161 Ohio St.3d 319, 2020-Ohio-3514, 163
N.E.3d 486, ¶ 7 (“R.C. 2947.23(C) gives a trial court continuing jurisdiction to
‘waive, suspend, or modify the payment of the costs of prosecution * * * at the time
of sentencing or at any time thereafter.’”). The state concedes the third assigned
error and agrees with Nascembeni’s remedy to remand the case for a nunc pro tunc
entry.
The trial court stated at sentencing: “Your fines fees and costs are
waived.” (Tr. 33.) Also, pursuant to the plea agreement, the trial court added:
Counsel: Your Honor, he’s responsible for the extradition costs too.
Court: Yeah. Extradition costs in the amount of $787.75.
Id. The journal entry provides, “The court hereby enters judgment against the
defendant in an amount equal to the costs of this prosecution.” Journal entry
No. 112986791, p. 2 (Mar. 19, 2021).
Therefore, we remand the case to the trial court for the limited
purpose of issuing a nunc pro tunc entry that reflects the trial court’s imposition of
extradition costs and waiver of fines and costs as imposed on the record at
sentencing.
The third assigned error is sustained.
IV. Conclusion
The judgment is affirmed in part, the imposition of postrelease
control is vacated, and the case is remanded for the issuance of a nunc pro tunc entry
to correctly reflect the trial court’s imposition of extradition costs and waiver of fines
and costs pursuant to this opinion.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
ANITA LASTER MAYS, JUDGE
MARY J. BOYLE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR