State v. Hull

[Cite as State v. Hull, 2017-Ohio-468.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104464
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JASON E. HULL
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-590277-A
BEFORE: Jones, P.J., Boyle, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: February 9, 2017
ATTORNEY FOR APPELLANT
John P. Parker
988 East 185th Street
Cleveland, Ohio 44119
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Margaret Kane
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant, Jason Hull, appeals his court costs and length of
postrelease control. The state, pursuant to Loc.App.R. 16(B), concedes the error. We
reverse and remand.
{¶2} In 2016, Hull pleaded guilty to aggravated murder, felonious assault,
endangering children, and having weapons while under disability with attendant forfeiture
specifications in the death of his girlfriend’s two-year-old daughter. The felonious
assault and endangering children counts merged with the aggravated murder count and
the state chose to proceed to sentencing on the aggravated murder count. At the
sentencing hearing, the court imposed the recommended agreed sentence of 20 years to
life for aggravated murder, a concurrent three years for having weapons while under
disability, and five years of postrelease control on the weapons charge. The court
waived fines and court costs, but the journal entry imposed costs.
{¶3} On appeal, Hull raises two assignments of error, both of which the state
concedes. He first argues that court costs were improperly imposed in the journal entry
due to a clerical error.
{¶4} During sentencing, the trial court stated, “[i]n light of all the circumstances in
this case, the kind of penalty being imposed and over the objection of the prosecution, I
am going to waive any fine or costs.” But the sentencing journal entry stated, “[f]ine
waived over the objection of the state. The court hereby enters judgment against the
defendant in an amount equal to the costs of the prosecution.”
{¶5} Crim.R. 36 provides: “After giving any notice it considers appropriate, the
court may at any time correct a clerical error in a judgment, order, or other part of the
record, or correct an error in the record arising from oversight or omission.” Thus,
pursuant to Crim.R. 36, 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.
Spears, 8th Dist. Cuyahoga No. 94089, 2010-Ohio-2229, ¶ 1; State v. Davis, 8th Dist.
Cuyahoga No. 95440, 2011-Ohio-2526, ¶ 15.
{¶6} Because the journal entry in this case did not reflect what the trial court stated
at the sentencing hearing, on remand, the trial court is to enter a nunc pro tunc order
showing that it waived court costs.
{¶7} The first assignment of error is sustained.
{¶8} In the second assignment of error, Hull argues that the trial court improperly
imposed five years of postrelease control on his weapons charge. The state concedes the
error and we agree.
{¶9} Hull pleaded guilty to having weapons while under disability, a felony of the
third degree. R.C. 2967.28(C) states:
Any sentence to a prison term for a felony of the third, fourth, or fifth
degree * * * shall include a requirement that the offender be subject to a
period of postrelease control of up to three years after the offender’s release
from imprisonment, if the parole board, in accordance with division (D) of
this section, determines that a period of post-release control is necessary for
that offender.
{¶10} Thus, pursuant to R.C. 2967.28(C), Hull is subject to up to three years of
postrelease control.1
{¶11} In State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434, 920 N.E.2d 958,
paragraph two of the syllabus, the Ohio Supreme Court stated that “[f]or criminal
sentences imposed on and after July 11, 2006, in which a trial court failed to properly
impose postrelease control, trial courts shall apply the procedures set forth in R.C.
2929.191.” As it applies to this case, R.C. 2929.191 provides that the trial court may,
after conducting a hearing with notice, correct an original judgment of conviction by
entering a nunc pro tunc entry.
{¶12} When a trial court errs in imposing a term of postrelease control at
sentencing, “that part of the sentence is void and must be set aside.” State v. Fischer,
128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26. “[O]nly the offending portion
of the sentence is subject to review and correction.” Id. at ¶ 27.
{¶13} Because the trial court improperly sentenced Hull to five years of
postrelease control, on remand, the trial court is to hold a hearing where the court can
correctly state that Hull is subject to up to a three-year period of postrelease control and
enter a corresponding judgment entry.
{¶14} The second assignment of error is sustained.
{¶15} Judgment reversed and case remanded for proceedings consistent with this
opinion.
1
Hull is not subject to postrelease control for aggravated murder because that crime is an
unclassified felony for which the postrelease control statute does not apply. State v. Clark, 119 Ohio
St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 36.
It is ordered that appellant recover of 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.
LARRY A. JONES, SR., PRESIDING JUDGE
MARY J. BOYLE, J., and
ANITA LASTER MAYS, J., CONCUR