State v. Hibbler

[Cite as State v. Hibbler, 2019-Ohio-3689.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2019-CA-19
:
v. : Trial Court Case No. 2001-CR-81
:
JOHN HIBBLER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 13th day of September, 2019.
...........
JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate
Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JOHN HIBBLER, #A411-907, P.O. Box 209, Orient, Ohio 43146
Defendant-Appellant, Pro Se
.............
FROELICH, J.
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{¶ 1} John Hibbler appeals from an “amended nunc pro tunc judgment entry of
conviction” that was filed to correct in the imposition of post-release control in this case
(Clark C.P. No. 2001-CR-81) and in Clark C.P. No. 2000-CR-636. For the following
reasons, the trial court’s imposition of post-release control in this case will be reversed,
and the matter will be remanded for resentencing in this case on post-release control
only. In all other respects, the trial court’s judgment will be affirmed.
I. Procedural History
{¶ 2} In April 2001, Hibbler was found guilty by a jury of felony murder with a
firearm specification, a first-degree felony (Case No. 2000-CR-636) and of attempted
aggravated burglary with a firearm specification and improper discharge of a firearm at or
into a habitation, both second-degree felonies (Case No. 2001-CR-81). The two cases
were consolidated prior to trial.1
{¶ 3} At a combined sentencing hearing, the court sentenced Hibbler to 15 years
to life in prison for the murder, plus an additional three years for the firearm specification.
The court further imposed eight years on each second-degree felony, plus an additional
three years for the firearm specification. The court merged the firearm specifications and
ordered the sentences to be consecutively for an aggregate term of 34 years to life in
prison. For each offense, the trial court imposed “up to a maximum of five years” of
mandatory post-release control. The trial court filed separate judgment entries in the two
cases.
{¶ 4} On August 8, 2018, Hibbler filed a “motion to vacate and set aside a
1 All of the charges arose from a single incident on October 20, 2000.
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statutorily void sentence” in both cases.2 With respect to Case No. 2001-CR-81, he
asserted that his offenses were subject to three years of post-release control and that the
court’s imposition of “up to five years” of post-release control was void. Hibbler asked
that the court’s 2001 order of post-release control be vacated and that he be resentenced.
On the same date (August 8), Hibbler filed a motion to revise and/or correct his judgment
entry in Case No. 2001-CR-81, claiming that the trial court had not imposed a final
appealable order. The motion also asserted, again, that the court erred in ordering up
to five years of post-release control.
{¶ 5} On November 30, 2018, the trial court resolved both motions. The court
denied the motion to vacate the judgment as void ab initio, but granted the motion to
amend the judgment. The court agreed that it had erred in the imposition of post-release
control. The court ordered that the judgment be amended to read “post release control
is mandatory in this case [2001-CR-81] for a period of three years.”
{¶ 6} On February 20, 2019, the trial court filed an “amended nunc pro tunc
judgment entry of conviction” addressing both cases (2000-CR-636 and 2001-CR-81).
The entry added language indicating that Hibbler had been found guilty by a jury after a
jury trial in both cases and modified the language regarding post-release control to read:
The Court has further notified the defendant that post release control
is mandatory in case 00-CR-0081 [sic] for a period of three years. In the
event the defendant should violate any term or condition of post release
2 Because Hibbler’s notice of appeal cited only Case No. 2001-CR-81, the record in Case
No. 2000-CR-636 is not before us, and the filings in Case No. 2000-CR-636 are not
publicly available online. Hibbler’s appellate brief suggests that the motions in the two
cases were substantially similar.
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control, the post release control sanction could be extended to a maximum
term of up to eight (8) years and a sentence could be imposed not to exceed
nine (9) months for each violation where the total sentence for post release
control violations cannot exceed one half of the total prison sentence
imposed herein. Further, for any violation constituting a felony criminal
offense, the defendant could receive an additional prison sentence in this
case for that violation for one (1) year or the time left on the post release
control whichever is greater, and that the same would be consecutive to the
new felony sentence. 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.
Post release control is not applicable to case 00-CR-0636. Any
release prior to serving the life sentence would be subject to the parole laws
of this State.
{¶ 7} On March 4, 2019, the trial court filed another “amended nunc pro tunc
judgment entry of conviction,” which appears to be identical to the February 20, 2019
judgment entry.
{¶ 8} Hibbler appeals from the trial court’s February 20, 2019 ruling as to Case No.
2001-CR-81. He did not file a notice of appeal in Case No. 2000-CR-636.
II. Amendment of Post-Release Control Obligation
{¶ 9} Hibbler raises two assignments of error on appeal, which state:
1. Does the trial court violate Crim.R. 43(A), or have jurisdiction to
resentence the Defendant-Appellant John T. Hibbler, via Amended Nunc
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Pro Tunc Entry in case no. 01CR81, for the purpose of removing a
mandatory up to 5 years post-release control sentence, regarding
§2903.02(B) Felony Murder in a different case, i.e. 00CR-636, when the
Appellant was sentenced in open court to up to 5 years in case no.
00CR636?
2. The trial court erred in amending the original sentencing entry from
mandatory up to 5 years PRC to 3 years PRC in case no. 01CR-81, via
Amended nunc pro tunc without conducting a resentencing hearing at which
defendant-appellant had a right to be present, in violation of Crim.R. 43(A),
and State v. Beasley, 2018 Ohio 493.
We will address these assignments of error together.
{¶ 10} “Post-release control” involves a period of supervision by the Adult Parole
Authority after an offender’s release from prison that includes one or more post-release
control sanctions imposed under R.C. 2967.28. R.C. 2967.01(N). Post-release control
is mandatory for some offenses and is imposed at the discretion of the Parole Board for
others, depending on the nature and degree of the offense. R.C. 2967.28(B) and (C).
For a felony of the second degree that is not a felony sex offense, the required term of
post-release control is three years. R.C. 2967.28(B).
{¶ 11} Individuals convicted of unclassified felonies, such as murder, are not
subject to post-release control. See, e.g., McCain v. Huffman, 151 Ohio St. 3d 611,
2017-Ohio-9241, 91 N.E.3d 749, ¶ 3; State v. Lawrence, 2d Dist. Montgomery No. 24513,
2011-Ohio-5813, ¶ 6. Instead, when a person convicted of an unclassified felony is
released from prison, that person is subject to parole. State v. Clark, 119 Ohio St.3d
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239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 36; R.C. 2967.13.
{¶ 12} If a defendant has committed an offense subject to post-release control
under R.C. 2967.28, the trial court must notify the defendant at sentencing of the post-
release control requirement and the consequences if the defendant violates post-release
control. R.C. 2929.19; State v. Qualls, 131 Ohio St. 3d 499, 2012-Ohio-1111, 967 N.E.2d
718, ¶ 18. It is well-established that when a judge fails to impose the required post-
release control as part of a defendant’s sentence, “that part of the sentence is void and
must be set aside.” (Emphasis sic.) State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238,
942 N.E.2d 332, ¶ 26; see also State v. Holdcroft, 137 Ohio St. 3d 526, 2013-Ohio-5014,
1 N.E.3d 382, ¶ 7. The improper post-release control sanction “may be reviewed at any
time, on direct appeal or by collateral attack.” Fischer at ¶ 27. However, res judicata
still applies to all other aspects of a conviction, including the determination of guilt and the
lawful elements of the sentence. Id. at ¶ 40; Boyd v. State, 2d Dist. Montgomery No.
27553, 2018-Ohio-108, ¶ 33.
{¶ 13} Once a defendant has served the prison term for an offense for which post-
release control applies, the trial court no longer has the authority to resentence the
defendant for the purpose of adding a term of post-release control as a sanction for that
particular offense. Holdcroft at paragraph three of the syllabus. This is true even if the
defendant remains incarcerated on other charges. Id. at ¶ 18.
{¶ 14} Under Fischer, the portions of Hibbler’s original judgment entries that
improperly imposed “up to a maximum of five years” of post-release control were void,
and the remainder of his sentences was valid. The trial court chose to address
deficiencies in the original judgment entries by issuing an amended nunc pro tunc
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judgment entry that addressed Case Nos. 2000-CR-636 and 2001-CR-81 together.
Although the trial court originally issued separate judgment entries for each case, nothing
precluded the trial court from filing an amended judgment entry addressing both cases
together.
{¶ 15} Under the facts before us, the trial court did not err in removing the
erroneous post-release control requirement in Case No. 2000-CR-636 (murder) through
the February 20, 2019 “amended nunc pro tunc judgment entry” without a resentencing
hearing. See, e.g., State v. Ortiz, 2016-Ohio-4813, 68 N.E.3d 188, ¶ 13 (7th Dist.); State
v. Brister, 5th Dist. Guernsey No. 13 CA 21, 2013-Ohio-5874, ¶ 19. As the Supreme
Court recently explained in a case also involving the removal of the post-release control
sanction for a murder defendant by means of a nunc pro tunc judgment entry:
The fact that [the trial judge] deleted a punishment [post-release
control] distinguishes this case from cases in which punishment was added;
in the latter situation, trial courts must hold a de novo resentencing hearing
on the additional portion of the sentence. * * *
But no resentencing hearing was required in the situation here,
because the trial court simply deleted a postrelease-control provision that
should not have been included in the initial sentence entry. * * *
(Emphasis sic.) State ex rel. Roberts v. Marsh, 156 Ohio St. 3d 440, 2019-Ohio-1569, 128
N.E.3d 222, ¶ 10-11.
{¶ 16} As with Roberts, the trial court in this case simply removed the post-release
control obligation for the murder conviction that should not have been imposed at the
original sentencing. Moreover, because the trial court was under no obligation to notify
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Hibbler about parole supervision, the trial court was not required to hold a resentencing
hearing to inform Hibbler about parole. See, e.g., State v. Silguero, 10th Dist. Franklin
No. 11AP-274, 2011-Ohio-6293. Accordingly, the trial court did not err in deleting the
post-release control obligation in Case No. 2000-CR-636 through the February 20, 2019
judgment entry.
{¶ 17} Hibbler’s first assignment of error is overruled.
{¶ 18} The State agrees with Hibbler, however, that the trial court erred in imposing
a three-year post-release control obligation in Case No. 2001-CR-81 (attempted
aggravated burglary and improper discharge of a firearm) without a resentencing hearing.
{¶ 19} Crim.R. 43(A)(1) requires a defendant’s physical presence at every stage
of the criminal proceeding, including the imposition of sentence. It is well established
that when post-release control is required but not properly imposed, the trial court must
conduct a limited resentencing hearing to properly impose post-release control. See
Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at paragraph two of the
syllabus (“The new sentencing hearing to which an offender is entitled under State v.
Bezak is limited to proper imposition of postrelease control.”).
{¶ 20} “Crim.R. 36(A) permits trial courts to correct clerical mistakes in judgments
or orders arising from oversight or omissions, using a nunc pro tunc entry.” State v.
Roach, 2d Dist. Montgomery No. 23317, 2010-Ohio-566, ¶ 3.
The use of a nunc pro tunc entry is limited to reflecting what the court
actually decided but failed to properly include in its judgment. Its sole
function is to correct a clerical mistake in the execution of a ministerial act.
“ ‘The term “clerical mistake” refers to a mistake or omission, mechanical in
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nature and apparent on the record, which does not involve a legal decision
or judgment.’ ” Therefore, “ ‘[t]he function of nunc pro tunc [entries] is not
to change, modify, or correct erroneous judgments, but merely to have the
record speak the truth.’ ” “A nunc pro tunc entry cannot be used to change
something that was deliberately done.”
(Citations omitted.) State v. Wolfe, 2d Dist. Montgomery Nos. 26681, 26729, 26983,
2016-Ohio-4897, ¶ 11. Accordingly, “[t]he imposition of a criminal sentence, simply put,
is not a clerical function subject to the use of a nunc pro tunc entry.” State v. Isa, 2d Dist.
Champaign Nos. 2017-CA-5 & 2017-CA-20, 2017-Ohio-8335, ¶ 26.
{¶ 21} We agree with Hibbler and the State that the trial court improperly used a
nunc pro tunc entry to impose three years of post-release control for the attempted
aggravated burglary and the improper discharge of a firearm at or into a habitation
charges. We further agree that the proper remedy is to remand for a new sentencing
hearing limited to the imposition of post-release control on those charges.
{¶ 22} Based on the record before us, it is unclear whether Hibbler will have
completely served his sentences for attempted aggravated burglary and/or improper
discharge of a firearm at or into a habitation prior to the new sentencing hearing. Nothing
in this opinion precludes Hibbler from asserting, if appropriate, that the trial court no longer
has authority to impose post-release control, in accordance with Holdcroft, 137 Ohio St. 3d
526, 2013-Ohio-5014, 1 N.E.3d 382.
{¶ 23} Hibbler’s second assignment of error is sustained.
III. Conclusion
{¶ 24} The trial court’s imposition of post-release control in Case No. 2001-CR-81
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will be reversed, and the matter is remanded for resentencing on post-release control
only in that case. In all other respects, the trial court’s judgment will be affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies sent to:
John M. Lintz
John Hibbler
Hon. Richard J. O’Neill