State v. Pelfrey

[Cite as State v. Pelfrey, 2013-Ohio-593.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
:
STATE OF OHIO, :
: Case No: 11CA3418
Plaintiff-Appellee, :
:
v. :
: DECISION AND
JOSEPH PELFREY, : JUDGMENT ENTRY
:
Defendants-Appellants. : RELEASED 01/29/13
APPEARANCES:
Joseph Pelfrey, Chillicothe, Ohio, pro se Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
Kline, J.:
{¶1} Joseph Pelfrey (hereinafter “Pelfrey”) appeals the judgment of the Scioto
County Court of Common Pleas, which denied his motion for a de novo sentencing
hearing. On appeal, Pelfrey contends that he is entitled to a de novo sentencing
hearing because his judgment of conviction does not properly impose postrelease
control. We disagree. Because Pelfrey was properly notified of postrelease control at
his joint-change-of-plea-and-sentencing hearing, the trial court may correct Pelfrey’s
judgment of conviction in a nunc pro tunc entry. Accordingly, we remand this cause to
the trial court for that limited purpose.
I.
{¶2} A Scioto County Grand Jury returned a multiple-count indictment against
Pelfrey. Initially, he pled not guilty to the charges. But following plea negotiations,
Scioto App. No. 11CA3418 2
Pelfrey agreed to plead guilty to (1) aggravated robbery, (2) having weapons while
under disability, and (3) a firearm specification.
{¶3} During Pelfrey’s joint-change-of-plea-and-sentencing hearing, the trial
court provided the following notification about postrelease control:
Post release control is mandatory in this case and the
period of time will be five years, but you will enter into an
agreement with the parole authority on how you are to
conduct your life and if you violate that agreement certain
things could happen. You could spend time in the County
Jail, the agreement could be modified and become more
restrictive upon your life style, the period of time you’re on it
could be increased to a maximum of five years or ultimately
for a violation the parole authority could send you back to
prison but for no more than half of your original sentence.
In addition the law also provides if a person is on post
release control and they commit a new felony the sentencing
court, in addition to any time imposed for the new felony, can
also revoke post release control and can sentence a person
back to prison for the greater of one year or the remaining
time a person has under post release control. Transcript at
4-5.
{¶4} Pelfrey’s judgment of conviction, however, contains only the following
postrelease-control language:
Scioto App. No. 11CA3418 3
Post Release Control is:
[X] MANDATORY
[ ] OPTIONAL
For a term of 5 years, as well as the consequences for
violating conditions of post release control imposed by the
Parole Board under Revised Code Section 2967.28. The
defendant is ordered to serve as part of this sentence any
term of post release control imposed by the Parole Board,
and any prison term for violation of that post release control.
Thus, unlike the notification at the joint-change-of-plea-and-sentencing hearing,
Pelfrey’s judgment of conviction does not contain specific details of what may happen if
he violates the conditions of postrelease control.
{¶5} On September 10, 2010, Pelfrey filed a pro se motion for “de novo
sentencing.” Pelfrey argued that his judgment of conviction does not properly impose
postrelease control and, as a result, that his sentence is void. The trial court, however,
denied Pelfrey’s motion for de novo sentencing.
{¶6} Pelfrey appeals and asserts the following assignment of error: “The Trial
Court Erred When It Denied Defendant A De Novo Re-Sentencing To Correct A Void
Sentence.”
II.
{¶7} In his sole assignment of error, Pelfrey contends that his judgment of
conviction does not properly impose postrelease control. As a result, Pelfrey argues
that he is entitled to a de novo sentencing hearing. We disagree. Because Pelfrey was
Scioto App. No. 11CA3418 4
properly notified of postrelease control at the joint-change-of-plea-and-sentencing
hearing, the trial court may correct Pelfrey’s judgment of conviction in a nunc pro tunc
entry. (Pelfrey does not dispute that he was properly notified of postrelease control
during the hearing. Rather, Pelfrey bases his argument solely on the language found in
the judgment of conviction.)
{¶8} To resolve Pelfrey’s appeal, “we must interpret and apply the statutes
related to postrelease control and parole. Thus, our review is de novo.” State v. Lofton,
4th Dist. No. 11CA16, 2012-Ohio-2274, ¶ 7, citing State v. Jenkins, 4th Dist. No.
10CA3389, 2011-Ohio-6924, ¶ 9.
{¶9} Under R.C. 2929.19(B)(2), a sentencing court must
notify an offender about several aspects of postrelease
control, including that “if a period of supervision is imposed
following the offender’s release from prison * * * and if the
offender violates that supervision * * * the 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.” (Omissions sic.) State v. Smith, 2012-Ohio-2728,
972 N.E.2d 646, ¶ 5 (1st Dist.), quoting R.C.
2929.19(B)(2)(e).
{¶10} Significantly, the Supreme Court of Ohio has held that,
where notification was properly given at the sentencing
hearing, there is no substantive prejudice to a defendant if
the sentencing entry’s failure to mention postrelease control
Scioto App. No. 11CA3418 5
is remedied through a nunc pro tunc entry. Our precedents
requiring a new sentencing hearing (either de novo or
limited) to correctly impose postrelease control do not apply
to this situation. The rationale underlying those decisions is
that a sentence that does not properly impose postrelease
control is void, and a remand for a new sentencing hearing is
necessary, because the trial court’s erroneous imposition of
postrelease control must be corrected in a new hearing at
which the defendant is present to receive notification that
complies with the statutes. State v. Qualls, 131 Ohio St. 3d
499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 23.
{¶11} Here, Pelfrey was notified of postrelease control at a joint-change-of-plea-
and-sentencing hearing. And based on the language quoted in paragraph 3 of this
opinion, we find that the trial court provided a proper notification of postrelease control.
Furthermore,
[b]ecause appellant’s plea and sentencing occurred together
at the same hearing, at the same time, we find no reason to
segregate the separate portions of the hearing into two
discrete and distinct hearings. The trial court informed
[Pelfrey] that if he was sentenced to prison, post-release
control would be part of his sentence, then proceeded to
sentence him to prison. State v. Jackson, 12th Dist. Nos.
CA2005-02-033 & CA2005-03-051, 2006-Ohio-1147, ¶ 18.
Scioto App. No. 11CA3418 6
{¶12} Nevertheless, we agree that Pelfrey’s judgment of conviction does not
contain a proper notification of postrelease control. We encountered a very similar fact
pattern in State v. Harris, 4th Dist. No. 11CA15, 2012-Ohio-2185. As is the case here,
the defendant in Harris was properly notified of postrelease control at the sentencing
hearing. And as is the case here, “the trial court’s sentencing entry failed to state that
the parole board could impose up to one-half of [Appellant’s] originally-imposed prison
term if he violated post-release control.” Id. at ¶ 8. Therefore, in Harris, we held the
following:
Although we agree with [Appellant] that the trial court did not
comply with the sentencing entry notification regarding the
“up to one-half” prison term for violating post-release control,
we do not agree that this failure entitles [Appellant] to a de
novo sentencing hearing. An offender is entitled to a new
sentencing hearing only when the trial court failed to provide
the statutorily required notification at the sentencing hearing.
Qualls at ¶ 24 (stating that “when the notification of
postrelease control was properly given at the sentencing
hearing, the essential purpose of notice has been fulfilled
and there is no need for a new sentencing hearing to remedy
the flaw”). If the trial court provided the proper notifications
at the sentencing hearing but failed to carry over those
notifications to its sentencing entry, the proper remedy is for
the trial court to enter a nunc pro tunc entry. Id. at ¶ 15. A
Scioto App. No. 11CA3418 7
trial court may use a nunc pro tunc entry to correct a failure
to include in its sentencing entry a post-release control
notification that it properly provided at the sentencing
hearing but failed to incorporate into the sentencing entry.
Id. Thus, “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.” Id. at
[¶] 30. Under these circumstances, we may either remand
the matter to the trial court so that it may correct its
sentencing entry or correct the entry ourselves. See [State
v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d
332,] at ¶¶ 29-30 (stating that “[c]orrecting a defect in a
sentence without a remand is an option” when trial court
“does not impose postrelease control in accordance with
statutorily mandated terms”); [State v. Triplett, 4th Dist. No.
10CA35, 2011-Ohio-4628,] at ¶ 6 (noting that appellate court
“authorized to correct certain errors without remanding for
resentencing”). Here, we think the better practice would be
to remand this matter to the trial court for the limited purpose
of correcting its sentencing entry to specifically state that the
parole board may impose up to one-half of [Appellant’s]
Scioto App. No. 11CA3418 8
originally-imposed prison term if he violates post-release
control. Because [Appellant] has not disputed that the trial
court provided the statutorily mandated notice at the
sentencing hearing, the trial court need not hold another
sentencing hearing. (Internal footnote omitted.) Harris at ¶
9.
{¶13} We apply the reasoning of Harris to the present case. Therefore, as we
did in Harris, “we sustain [Pelfrey’s] assignment of error to the limited extent discussed
and remand to the trial court so that it may enter a nunc pro tunc entry that incorporates
the required language into its sentencing entry.” Id. at ¶ 10.
CAUSE REMANDED.
Scioto App. No. 11CA3418 9
JUDGMENT ENTRY
It is ordered that the CAUSE IS REMANDED and that the Appellee shall pay the
costs.
The Court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County 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. Exceptions.
Harsha, J. & Abele, J.: Concur in Judgment & Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.