Opinion
No. 2010CA00006.
DATE OF JUDGMENT ENTRY: September 27, 2010.
Appeal from the Court of Common Pleas, Case No. 2007CR2209.
Affirmed.
John D. Ferrero, Stark County Prosecutor, By: Renee M. Watson, for Plaintiff-Appellee.
Barry T. Wakser, for Defendant-Appellant.
Before: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.
OPINION
{¶ 1} On January 14, 2008, the Stark County Grand Jury indicted appellant, Cornelius Clark, on one count of robbery in violation of R.C. 2911.02. On March 6, 2008, appellant pled guilty as charged and was sentenced to two years in prison. During the plea hearing, the trial court advised appellant that he would be subject to a mandatory three year period of post release control and appellant acknowledged that he understood same, but the subsequent judgment entry listed the post release control as optional.
{¶ 2} On November 30, 2009, the last day of appellant's prison sentence, appellant was returned to court and advised that he was subject to a mandatory three year period of post release control. A nunc pro tunc judgment entry reflecting the mandatory post release control was filed on December 9, 2009, after appellant's prison sentence was completed.
{¶ 3} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:
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{¶ 4} "A TRIAL COURT IS WITHOUT AUTHORITY TO ISSUE A CORRECTIVE JUDGMENT ENTRY IMPOSING POST-RELEASE CONTROL ONCE AN OFFENDER HAS COMPLETED HIS SENTENCE."
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{¶ 5} Appellant claims the trial court erred in issuing a corrective judgment on post release control after he had completed his sentence. We disagree.
{¶ 6} Appellant concedes the resentencing hearing was timely, but argues the nunc pro tunc judgment entry from that hearing was not timely filed and therefore he is not subject to post release control.
{¶ 7} Pursuant to R.C. 2929.191, a resentencing hearing and subsequent order to correct an administrative error on post release control is appropriate:
{¶ 8} (A)(1) * * * If, prior to the effective date of this section, a court imposed a sentence including a prison term of a type described in division (B)(3)(d) of section 2929.19 of the Revised Code and failed to notify the offender pursuant to that division that the offender may be supervised under section 2967.28 of the Revised Code after the offender leaves prison or to include a statement to that effect in the judgment of conviction entered on the journal or in the sentence pursuant to division (F)(2) of section 2929.14 of the Revised Code, at any time before the offender is released from imprisonment under that term and at a hearing conducted in accordance with division (C) of this section, the court may prepare and issue a correction to the judgment of conviction that includes in the judgment of conviction the statement that the offender may be supervised under section 2967.28 of the Revised Code after the offender leaves prison.
{¶ 9} "(2) If a court prepares and issues a correction to a judgment of conviction as described in division (A)(1) of this section before the offender is released from imprisonment under the prison term the court imposed prior to the effective date of this section, the court shall place upon the journal of the court an entry nunc pro tunc to record the correction to the judgment of conviction and shall provide a copy of the entry to the offender or, if the offender is not physically present at the hearing, shall send a copy of the entry to the department of rehabilitation and correction for delivery to the offender. * * *"
{¶ 10} Our brethren from the Twelfth District in State v. Harrison, Butler App. Nos. CA2009-10-272 and CA2010-01-019, 2010-Ohio-2709, reviewed a similar fact pattern as the case sub judice: the defendant was advised during his sentencing hearing that post release control was mandatory, but the judgment entry incorrectly listed post release control as optional. The Harrison court explained the following at ¶ 22-24:
{¶ 11} "We do not find that the factual situation presented by the instant case requires a R.C. 2929.191 hearing because appellant was properly notified of his postrelease control obligations at the 2009 sentencing hearing. The judgment entry did not reflect the notification that appellant received and, therefore, we find that the error in the original entry was clerical. See State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 856 N.E.2d 263, 2006-Ohio-5795, ¶ 19 (term clerical mistake refers to a mistake or omission, mechanical in nature and apparent on the record, which does not involve a legal decision or judgment).
{¶ 12} "A nunc pro tunc entry is the appropriate remedy to correct a clerical mistake. State v. Battle, Summit App. No. 23404, 2007-Ohio-2475; State v. Gruelich (1988), 61 Ohio App.3d 22, 24-25, 572 N.E.2d 132. A nunc pro tunc entry or order is limited to memorializing what the trial court actually did at an earlier point in time, such as correcting a previously issued order that fails to reflect the trial court's true action. State v. Spears, Cuyahoga App. No. 94089, 2010-Ohio-2229, ¶ 10.
{¶ 13} "A nunc pro tunc entry may be used to correct a sentencing entry to reflect the sentence the trial court imposed upon a defendant at a sentencing hearing. Battle at ¶ 6 (generally, nunc pro tunc entry relates back to the date of the journal entry it corrects); Crim. R. 36 (trial court may correct clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission * * * at any time)."
{¶ 14} Appellant's plea of guilty entry contains the following language:
{¶ 15} "I have been advised by my attorney and the Court that in addition to my sentence, a period of control or supervision by the Adult Parole Authority after my release from prison is optional in this case. The control period may be a maximum term of three years. A violation of any post-release control rule or condition can result in a more restrictive sanction while released, as increased duration of supervision or control, up to the maximum set out above and/or re-imprisonment even though I have served the entire stated prison sentence imposed upon me by this Court for all offenses set out above."
{¶ 16} During the plea colloquy on February 27, 2008, the trial court correctly informed appellant about mandatory post release control:
{¶ 17} "THE COURT: Felony three. And it is a crime of violence. If there's physical threat or physical harm, it's a mandatory three years post-release controls. Do you understand that?
{¶ 18} "DEFENDANT CLARK: Yep, sir, I do.
{¶ 19} "THE COURT: If you don't do what the board tells you to do, the board can do any of the following: They can make your conditions tougher or they can impose up to one year of incarceration, you can serve it locally or back in the institution. But if you're on post-release controls and you commit a new felony, when you go before the new Judge on your new case, in addition to sentencing you on that, the new Judge can add 12 months or the balance of time you have on post, whichever is longer, and then they can run that consecutively to your new felony. Do you understand that?
{¶ 20} "DEFENDANT CLARK: Yes." T. at 9-10.
{¶ 21} The trial court's original sentencing entry filed March 6, 2008 states the following:
{¶ 22} "The Court has further notified the defendant that post release control is optional in this case up to a maximum of three (3) years, as well as the consequences for violating conditions of post release control imposed by the Parole Board under Revised Code Section 2967.28."
{¶ 23} The judgment entry nunc pro tunc filed December 9, 2009 states the following:
{¶ 24} " The Court has further notified the defendant that post release control is mandatory in this case for a (sic) of three (3) years, as well as the consequences for violating conditions of post release control imposed by the Parole Board under Revised Code Section 2967.28."
{¶ 25} Following our brethren in the Harrison case, the nunc pro tunc judgment entry in this case was to correct a clerical mistake. As the facts point out, the original judgment entry did not reflect the actual sentence, mandatory post realease control as opposed to optional. The second judgment entry corrected the clerical error and is a nunc pro tunc entry in the purest sense.
{¶ 26} We conclude that although the December 9, 2009 judgment entry was untimely filed, it nevertheless relates back to the original entry. We find appellant was properly placed on post release control.
{¶ 27} The sole assignment of error is denied.
{¶ 28} The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed.
Farmer, J. Delaney, J. concur and Hofffman, P.J. dissents.
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to appellant.
{¶ 29} I respectfully dissent from the majority opinion.
{¶ 30} Unlike the majority, I do not find the Harrison case persuasive. It is worthy of note, in Harrison, the corrective nunc pro tunc entry was issued before Appellant's release from prison. That differs from the scenario presented in this appeal.
{¶ 31} I believe R.C. 2929.191 does control this case. The statute specifically requires the trial court to prepare and issue a correction to the judgment of conviction after conducting the hearing pursuant to division (C) at any time before the offender is released from prison. Pursuant to division (A)(2), the corrective nunc pro tunc entry is to be placed on the journal before the offender is released from imprisonment.
Under the majority's view and the Harrison decision, a resentencing hearing would not have been required in this case.
I find this specific statutory procedure exempts this case from the general rule referenced in Harrison that a nunc pro tunc relates back to the date of the journal entry it corrects.
{¶ 32} Accordingly, I would sustain Appellant's assignment of error.