State v. Herron

[Cite as State v. Herron, 2019-Ohio-4180.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27910
:
v. : Trial Court Case No. 2002-CR-3261
:
JASON MARK HERRON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 11th day of October, 2018.
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MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
PAUL E. WAGNER, Atty. Reg. No. 0067647, 507 South Broadway, Greenville, Ohio
45331
Attorney for Defendant-Appellant
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HALL, J.
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{¶ 1} Jason Herron appeals from an amended judgment entry resentencing him to
specific terms of post-release control, which corrected an original judgment entry stating
that he “will/may serve a period of post-release control.” The state concedes that the
trial court erroneously imposed post-release control for an offense for which Herron had
completed his prison term, and we agree. We vacate the portion of the amended
judgment entry imposing post-release control for felonious assault, and we remand to the
trial court for the filing of a corrected judgment entry.
I. Facts and Procedural History
{¶ 2} In 2003, Herron was convicted on charges of murder, felonious assault,
improper discharge of a firearm into a habitation, having a weapon while under disability,
and two firearm specifications. The trial court imposed an aggregate sentence of 38 years
to life in prison. This court affirmed on direct appeal in State v. Herron, 2d Dist.
Montgomery No. 19894, 2004-Ohio-773.
{¶ 3} In September 2017, Herron filed a pro se motion for correction of sentence
and motion for resentencing. He argued that the trial court had failed to impose post-
release control (PRC) properly in connection with his original sentencing. In February
2018, the trial court held a video hearing on the PRC issue. At the hearing, the trial court
advised Herron that he was subject to five years of mandatory PRC for felonious assault,
three years of mandatory PRC for improper discharge of a firearm into a habitation, and
three years of discretionary PRC for having a weapon while under disability. The court
advised him that PRC did not apply to his murder conviction, an unclassified offense
subject to parole. The trial court journalized Herron’s PRC obligations in an amended
termination entry that repeated his original sentence and listed the applicable PRC. The
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term of PRC listed for the felonious-assault offense was correctly stated as a mandatory
period of three years, not five years as the trial court had stated at the resentencing
hearing.
{¶ 4} Herron appealed from the amended judgment entry of conviction. His
appointed appellate counsel filed an Anders brief asserting an inability to find any
meritorious issue to present for review. Our independent review of the record uncovered
a non-frivolous issue as to whether the trial court erroneously imposed PRC for an offense
for which Herron had already completed his prison term. As such, we set aside the Anders
brief and appointed new counsel. We did not limit review to the PRC issue but instructed
new counsel to review the entire record and raise any issue(s) that counsel believed had
arguable merit.
II. Analysis
{¶ 5} Herron assigns five errors to the trial court.
A. Post-release control
{¶ 6} The first and second assignments of error allege:
During the hearing on the PRC, Appellant Was Told Improperly by
the Trial Court He was subject to Five Years of PRC as Opposed to the
Three Years Required by ORC 2967.28.
The Trial Court Erroneously Imposed PRC For One or More
Offenses On Which Appellant Already Had Completed His Prison Term.
{¶ 7} The state concedes error on the first two assignments of error. It agrees that
the trial court incorrectly told Herron at the resentencing hearing that he was subject to
five years of mandatory PRC for felonious assault. The state also agrees that the trial
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court lacked the authority to impose PRC for felonious assault because Herron had
already completed the sentence for that offense. We agree in both respects.
{¶ 8} In its original judgment entry of conviction, the trial court imposed consecutive
prison terms of eight years for felonious assault, eight years for improper discharge of a
firearm into a habitation, one year for having a weapon while under disability, and fifteen
years to life for murder. It also imposed consecutive three-year prison terms on the two
firearm specifications. The aggregate six-year term for the firearm specifications was
ordered to be served before all definite terms of imprisonment. Herron also received 188
days of jail-time credit.
{¶ 9} The judgment entry ordered the six-year term for the firearm specifications
to be served before the definite prison terms, so Herron would have finished serving that
term, reduced by the jail-time credit, in late 2008. The judgment entry said nothing about
the order in which Herron was to serve the remaining prison sentences and the record
did not identify which of the remaining sentences was to be served next. We have said
that, “absent any additional direction from the trial court,” it is reasonable to conclude that
sentences are to be served in the order set forth in the termination entry. State v.
Christian, 2017-Ohio-8249, 99 N.E.3d 887, ¶ 15 (2d Dist.); see also State v. Beverly, 2d
Dist. Clark No. 2015-CA-71, 2018-Ohio-2116, ¶ 10, citing State v. Powell, 2d Dist.
Montgomery No. 24433, 2014-Ohio-3842, ¶ 28 (“we previously have looked to the order
in which a trial court imposed its sentences and also have construed any ambiguity
regarding the order of service in a defendant’s favor”). Here, the felonious-assault
sentence was next in the judgment entry’s order of sentences, and Herron would have
completed the eight-year sentence for that offense in late 2016.
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{¶ 10} “[A] trial court cannot impose post-release control when a defendant already
has completed his sentence for a particular offense, regardless of whether he remains in
prison for other offenses.” State v. Singleton, 2d Dist. Montgomery No. 27329, 2017-Ohio-
7265, ¶ 8, fn. 2, citing State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d
382, ¶ 19. By the time Herron was resentenced in 2018, he had completed the sentence
for felonious assault. Therefore the trial court erred by imposing PRC for that offense.
{¶ 11} We note that this is likely an academic issue. “If an offender is subject to
multiple periods of post-release control, they are served concurrently and ‘the period of
post-release control for all of the sentences shall be the period of post-release control
that expires last.’ ” State v. Perkins, 2d. Dist. Montgomery No. 27323, 2017-Ohio-7940,
¶ 10, quoting R.C. 2967.28(F)(4)(c). Herron will serve three years of mandatory PRC for
the improper-discharge offense. He would have served the three years of PRC for
felonious assault concurrently.
{¶ 12} We agree with the state that the remedy here is to vacate the PRC sanction
for the already-served felonious assault count.. See State v. Ford, 2d Dist. Montgomery
No. 25796, 2014-Ohio-1859, ¶ 21 (concluding that the trial court lacked authority to
impose PRC for aggravated robbery because the defendant had already completed the
sentence).
{¶ 13} The first and second assignments of error are sustained.
B. The other assignments of error
{¶ 14} The third, fourth, and fifth assignments of error allege:
[The Trial Court] Erred In Conducting the Sentencing Through Video
Conference.
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The Court did not allow the Defendant to Finish his Allocution Statement.
Defendant Did not have Effective Assistance of Counsel.
{¶ 15} In light of our conclusion that PRC for felonious assault must be vacated,
each of the remaining assignments of error raises only harmless error. In the third
assignment of error, Herron argues that the trial court violated Crim.R. 43 by resentencing
him via a video hearing because he did not waive his right to be physically present for the
hearing and did not consent to appear at the hearing by way of video. The state concedes
this error but argues that it was harmless. We agree. The only prejudice that Herron
suggests is the erroneous imposition of PRC for felonious assault. That error has now
been corrected. In the fourth assignment of error, Herron argues that at the resentencing
hearing the trial court did not allow him to finish reading a written statement that he had
prepared. Again, the only prejudice that Herron identifies is the now-corrected erroneous
imposition of PRC. Lastly, in the fifth assignment of error, Herron argues that trial counsel
was ineffective for failing to object to the erroneous imposition of PRC and that initial
appellate counsel was ineffective for failing to raise the fact that PRC sanctions were
missing from the original judgment entry of conviction. Even assuming deficient conduct,
because the PRC has been corrected, Herron has not been prejudiced.
{¶ 16} The third, fourth, and fifth assignments of error are overruled.
III. Conclusion
{¶ 17} The trial court’s judgment is vacated insofar as it imposed PRC for felonious
assault, an offense for which Herron had already served his sentence. In all other
respects, the trial court’s judgment is affirmed. This matter is remanded for the trial court
to file a corrected judgment entry of conviction.
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DONOVAN, J. and FROELICH, J., concur.
Copies sent to:
Mathias H. Heck
Sarah E. Hutnik
Paul W. Wagner
Hon. Mary L. Wiseman