State v. Ivey

[Cite as State v. Ivey, 2017-Ohio-4162.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28162
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DALE IVEY COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2003-12-3744
DECISION AND JOURNAL ENTRY
Dated: June 7, 2017
CARR, Judge.
{¶1} Defendant-Appellant Dale Ivey appeals from the judgment of the Summit County
Court of Common Pleas. This Court affirms in part, vacates in part, and remands the matter for
the issuance of a nunc pro tunc entry.
I.
{¶2} In 2003, Ivey was indicted on one count of aggravated murder, one of count of
murder, and one count of escape. The matter proceeded to a jury trial, after which, the jury
found him guilty of all counts. After finding that the charges of aggravated murder and murder
were of dissimilar import, the trial court sentenced Ivey to life imprisonment with parole
eligibility after 20 full years for the crime of aggravated murder, 15 years to life for the crime of
murder, and 8 years for the crime of escape. The trial court ordered the sentence for escape to
run consecutively to the sentences for aggravated murder and murder, which were ordered to run
concurrently to each other. The trial court stated at the sentencing hearing that “the parole board
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* * * may impose a period of post-release control possibly up to five or more years[]” and in the
entry stated that Ivey was “subject to post-release control to the extent the parole board may
determine as provided by law.”
{¶3} Ivey filed a notice of appeal in 2004; however, the appeal was dismissed after he
failed to file a brief. Years later, Ivey began filing various motions in the trial court. In October
2015, he filed the motion that led to his resentencing and this appeal: a motion for resentencing
based upon errors in his post-release control notification and in the trial court’s failure to merge
his aggravated murder and murder convictions. The State conceded both errors and agreed that
Ivey should be resentenced.
{¶4} On February 23, 2016, the trial court held what amounted to a de novo
resentencing hearing. The trial court merged Ivey’s aggravated murder and murder convictions,
sentencing him to life imprisonment with parole eligibility after 20 years on the aggravated
murder charge. The trial court sentenced him to 8 years on the escape charge and ordered that
sentence to run consecutively to the sentence for aggravated murder. At the sentencing hearing,
the trial court notified Ivey that he would be subject to a mandatory term of 3 years of post-
release control; however, the March 3, 2016 sentencing entry states that he would be subject to 5
years of post-release control. On March 11, 2016, the trial court issued a nunc pro tunc entry to
correct the name of counsel appointed for Ivey’s appeal.
{¶5} Ivey has appealed both the March 3, 2016, and the March 11, 2016 entries, raising
five assignments of error for our review.
II.
{¶6} Before addressing the merits of the appeal, we address whether the trial court had
jurisdiction to conduct a de novo resentencing of Ivey. Ivey’s 2004 sentencing entry was a final,
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appealable order. See State v. McIntyre, 9th Dist. Summit No. 27670, 2016-Ohio-93, ¶ 10
(listing the elements necessary for a final, appealable order in a criminal case). “Absent statutory
authority, a trial court is generally not empowered to modify a criminal sentence by
reconsidering its own final judgment. Once a final judgment has been issued pursuant to
Crim.R. 32, the trial court’s jurisdiction ends.” (Internal quotations and citations omitted.) Id. at
¶ 11. However, trial courts do “retain continuing jurisdiction to correct a void sentence and to
correct a clerical error in a judgment[.]” State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, ¶
20.
{¶7} In the instant matter, Ivey’s post-release control notification at both the original
sentencing hearing and in the 2004 entry was deficient. Ivey was subject to post-release control
based solely on his conviction for escape, a felony of the second degree. See R.C. 2921.34(B).
Thus, Ivey was subject to a mandatory three-year term of post-release control upon his release
from prison. R.C. 2967.28(B)(2). At the 2004 sentencing hearing, the trial court stated that “the
parole board * * * may impose a period of post-release control possibly up to five or more
years[,]” and in the entry the trial court provided that Ivey was “subject to post-release control to
the extent the parole board may determine as provided by law.” Neither notified Ivey that he
was subject to a mandatory three years of post-release control. See State v. Grimes, Slip Opinion
No. 2017-Ohio-2927, ¶ 9. The Supreme Court of Ohio has concluded that, “when a judge fails
to impose statutorily mandated post[-]release control as part of a defendant’s sentence, that part
of the sentence is void and must be set aside.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-
6238, ¶ 26. “The new sentencing hearing to which an offender is entitled * * * is limited to
proper imposition of post[-]release control.” Id. at paragraph two of the syllabus. Accordingly,
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the post-release control portion of Ivey’s 2004 sentence was void and he was entitled to a limited
resentencing hearing so that he could be properly notified of his post-release control obligations.
{¶8} The trial court, however, did not conduct a resentencing hearing limited to
providing the required post-release control notification. Instead, it conducted a de novo hearing.
In part, it did so because it found that it was required to merge the offenses of aggravated murder
and murder because they were allied. However, even if the trial court erred in 2004 in finding
the offenses to be of dissimilar import, the trial court could only reconsider that final judgment if
such an error rendered the sentence void. See Raber at ¶ 20. “[A] trial court’s failure to merge
offenses for purposes of sentencing, where the court has not previously found the offenses to be
allied (either expressly or by merely failing to make such a finding), does not result in a void
sentence, but rather a voidable one subject to challenge only on direct appeal.” In re D.M., 9th
Dist. Medina No. 16CA0019-M, 2017-Ohio-232, ¶ 9, citing State v. Williams, Slip Opinion No.
2016-Ohio-7658, ¶ 23, 26. In the instant matter, the trial court in 2004 found the offenses to be
of dissimilar import, and therefore, not allied. Irrespective of the propriety of that decision, it is
not void. See id. Accordingly, the trial court did not have jurisdiction to resentence Ivey aside
from providing appropriate post-release control notification. See Raber, 134 Ohio St.3d 350,
2012-Ohio-5636, at ¶ 20. To the extent the trial court exceeded its authority in resentencing
Ivey, the entry is vacated. See State v. Ibn-Ford, 9th Dist. Summit No. 27380, 2015-Ohio-753, ¶
7, quoting State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 27. (“A void sentence is one
that a court imposes despite lacking subject-matter jurisdiction or the authority to act.”)
{¶9} We note that while the trial court correctly notified Ivey of post-release control at
the 2016 sentencing hearing, the trial court stated in the sentencing entry that Ivey would be
subject to 5 years, instead of 3 years of post-release control. See Grimes, Slip Opinion No. 2017-
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Ohio-2927, at syllabus. “Where a sentencing hearing transcript makes clear what the trial court
decided, the trial court has jurisdiction to correct typographical errors in a sentencing entry via a
nunc pro tunc entry.” Ibn-Ford at ¶ 8; see also State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-
1111, ¶ 13 (noting that a new sentencing hearing is not required “when a trial court properly
notified a defendant of post[-]release control at the sentencing hearing, but the initial sentencing
entry did not accurately reflect the details of the notification[ because] the imperfect sentencing
entry can be corrected through a nunc pro tunc entry[]”). Thus, upon remand, through a nunc pro
tunc entry, the trial court can correct the sentencing entry to reflect that Ivey is subject to three
years of mandatory post-release control. See R.C. 2967.28(B)(2).
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT STATED
THAT IT LACKED THE POWER TO FORCE THE STATE TO STIPULATE
TO A PRIOR CONVICTION.
ASSIGNMENT OF ERROR II
APPELLANT SUFFERED FROM INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN DEFENSE COUNSEL FAILED TO MAKE TIMELY
OBJECTIONS AND FAILED TO ASK FOR A LIMITING INSTRUCTION ON
IMPROPER PRIOR BAD ACT TESTIMONY.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BY NOT GRANTING THE CRIMINAL RULE
29 MOTION AS THERE WAS INSUFFICIENT EVIDENCE TO SHOW
DEFENDANT ACTED WITH PURPOSE.
{¶10} In his first three assignments of error, Ivey raises issues that arose from his 2004
convictions and sentence. However, “[t]he scope of an appeal from a resentencing hearing in
which a mandatory term of post[-]release control is imposed is limited to issues arising at the
resentencing hearing.” Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph four of the
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syllabus. Thus, the arguments that Ivey raises in his first three assignments of error are not
properly before this Court and cannot be addressed in this appeal.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT FAILED TO COMPLY WITH R.C. 2929.11, R.C. 2929.12
BY SENTENCING IVEY TO THE MAXIMUM PRISON TERM ON THE
ESCAPE CONVICTION BEFORE CONSIDERING THE STATUTORY
FACTORS.
{¶11} In Ivey’s fourth assignment of error, he challenges the sentence for escape
imposed by the trial court at the resentencing. Because we have already determined that the trial
court could not resentence Ivey on this charge, and have vacated the entry to the extent he was
resentenced on it, this assignment of error has been rendered moot, and we decline to address it.
See App.R. 12(A)(1)(c).
ASSIGNMENT OF ERROR V
THE TRIAL COURT FAILED TO AFFORD APPELLANT THE RIGHT TO
ALLOCUTION AS PROVIDED BY OHIO CRIMINAL RULE 32(A)[(1)].
{¶12} Ivy argues in his fifth assignment of error that the trial court erred by failing to
allow him an opportunity to allocute at the resentencing hearing. We do not agree.
{¶13} “When sentencing an offender, a trial court must ‘[a]fford counsel an opportunity
to speak on behalf of the defendant and address the defendant personally and ask if he or she
wishes to make a statement in his or her own behalf or present any information in mitigation of
punishment.’ Crim.R. 32(A)(1). ‘R.C. 2929.19(A) and Crim.R. 32(A)(1) unambiguously
require that an offender be given an opportunity for allocution whenever a trial court imposes a
sentence at a sentencing hearing.’” State v. Johnson¸ 9th Dist. Summit No. 28268, 2017-Ohio-
913, ¶ 5, quoting State v. Jackson, Slip Opinion No. 2016-Ohio-8127, ¶ 10, citing State v.
Campbell, 90 Ohio St.3d 320 (2000), paragraph one of the syllabus. “The purpose of allocution
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is to permit the defendant to speak on his own behalf or present any information in mitigation of
punishment.” (Internal quotations and citation omitted.) Johnson at ¶ 5. “Both the Ohio
Supreme Court and this Court have recognized that a trial court complies with a defendant’s
right of allocution when it personally addresses the defendant and asks whether he has anything
to say.” State v. Daniels, 9th Dist. Summit No. 26406, 2013-Ohio-358, ¶ 14.
{¶14} Assuming, without deciding, that a defendant also has a right to allocution at a
resentencing limited to the proper notification of a defendant’s post-release control obligations,
see State v. Mays, 8th Dist. Cuyahoga No. , 2011-Ohio-1565, ¶ 10 (concluding that a defendant
does not have such a right), we conclude that the trial court complied with the requirement. Prior
to notifying Ivey about post-release control, on multiple occasions, the trial court asked Ivey
what he would like to tell the trial court. After each question, Ivey and the trial court then
engaged in a dialogue. Further, once again after the notification, the trial court asked Ivey if
there was anything he wanted to say with the respect to the sentence imposed.
{¶15} Moreover, even if we were to determine that the trial court did somehow err, we
would conclude the error was harmless. “[T]he trial court had no discretion to exercise with
respect to the imposition of post-release control.” State v. Carr, 2d Dist. Montgomery No.
24438, 2012-Ohio-1850, ¶ 15. Because of that, we fail to see how anything else that Ivey would
have said would have led to a different result. See id. at ¶ 17; see also State v. Fry, 125 Ohio
St.3d 163, 2010-Ohio-1017, ¶ 193 (applying harmless error to a violation of Crim.R. 32(A)).
{¶16} Ivey’s fifth assignment of error is overruled.
III.
{¶17} The judgment entry of the Summit County Court of Common Pleas is vacated to
the extent discussed above. Upon remand, the trial court can correct the typographical error in
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the post-release control term via a nunc pro tunc entry. We are unable to address the merits of
Ivey’s first three assignments of error. Ivey’s fourth assignment of error has been rendered
moot, and we overrule Ivey’s fifth assignment of error. The judgment of the Summit County
Court of Common Pleas is affirmed in part, vacated in part, and the matter is remanded for the
issuance of a nunc pro tunc entry.
Judgment affirmed in part,
vacated in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
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HENSAL, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
DONALD GALLICK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.