State v. Brown , 2017 Ohio 8298 ( 2017 )

[Cite as State v. Brown, 2017-Ohio-8298.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28432
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DONALD EUGENE BROWN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 04 12 4150 (A)
DECISION AND JOURNAL ENTRY
Dated: October 25, 2017
SCHAFER, Judge.
{¶1} Defendant-Appellant, Donald E. Brown, appeals the judgment of the Summit
County Court of Common Pleas. We affirm.
I.
{¶2} In 2005, the trial court sentenced Brown to an 11-year term of imprisonment after
a jury convicted him of one count of trafficking in marijuana in violation of R.C. 2925.03(A)(2),
a first-degree felony, one count of possession of marijuana in violation of R.C. 2925.11(A), a
second-degree felony, one count of possession of marijuana in violation of R.C. 2925.11(A), a
fourth-degree misdemeanor, three counts of having weapons while under disability in violation
of R.C. 2923.13(A)(2)/(3), all third-degree felonies, one count of endangering children in
violation of R.C. 2919.22(A), a first-degree misdemeanor, and one count of criminal trespass in
violation of R.C. 2911.21(A)(1), a fourth-degree misdemeanor. The trial court also ordered
Brown to serve a five-year period of postrelease control upon his release from prison. This
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Court affirmed Brown’s convictions on appeal. See State v. Brown, 9th Dist. Summit Nos.
23076, 23080, 2006-Ohio-6749.
{¶3} On October 15, 2009, Brown filed a motion for resentencing arguing that
although the trial court’s sentencing entry imposed a five-year period of postrelease control, the
trial court failed to notify him of postrelease control at his sentencing hearing. The State agreed
that Brown should be resentenced. On December 21, 2009, the trial court resentenced Brown on
the record to a mandatory eight-year term of imprisonment and ordered him to serve a mandatory
five-year period of postrelease control. The trial court journalized this sentence in an entry dated
February 1, 2010.
{¶4} In 2011, Brown filed a motion to vacate his sentence pursuant to State v. Pelfrey,
112 Ohio St.3d 422 (2007), arguing that his sentence for trafficking in marijuana (count one of
the indictment) is illegal. The State filed a brief in opposition to Brown’s motion to vacate
sentence. A review of the record indicates that the trial court never explicitly ruled on Brown’s
motion to vacate sentence.
{¶5} On October 31, 2013, Brown filed a “motion to discharge defendant from all
obligations related to post release control.” The trial court held a hearing on Brown’s motion
and, upon agreement of the parties, issued a nunc pro tunc entry altering Brown’s sentence with
respect to his trafficking in marijuana conviction from a mandatory five-year period of
postrelease control to a mandatory three-year period of postrelease control. Thereafter, in 2015,
Brown again filed a “motion to discharge defendant from all obligations related to post release
control,” which was identical to his 2013 motion. The trial court denied Brown’s successive
motion.
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{¶6} In July of 2016, Brown filed a writ of error coram nobis resident and a motion to
quash or hold, to which the State responded in opposition. The trial court ultimately denied
Brown’s motions concluding that a writ of error coram nobis resident does not exist under Ohio
law and that Brown’s motion to quash or hold was barred by the doctrine of res judicata. On
October 5, 2016, Brown filed a motion to terminate his postrelease control, which the State
opposed. The trial court denied Brown’s motion to terminate postrelease control.
{¶7} Brown filed this timely appeal and presents one assignment of error for our
review.
II.
Assignment of Error
The trial court erred by denying Mr. Brown’s motion to terminate his void
[postrelease] control. Entry, December 21, 2009; State v. Peterson, 8th Dist.
[Cuyahoga] No. 96958, 2012-Ohio-87, [¶] 9.
{¶8} In his sole assignment of error, Brown argues that the trial court erred by denying
his motion to vacate void postrelease control. We disagree that his five-year term of postrelease
control was void. We vacate the trial court’s nunc pro tunc imposition of a three-year term of
postrelease control as void.
{¶9} Brown was convicted of several crimes following a jury trial, the highest level
offense being trafficking in marijuana in violation of R.C. 2925.03(A)(2), a first-degree felony.
This Court has recognized that, if a trial court is sentencing for multiple convictions, its
“imposition of one term of postrelease control is proper.” State v. Kracker, 9th Dist. Summit No.
25315, 2010-Ohio-5329, ¶ 6; see R.C. 2967.28(F)(4)(c) (“If an offender is subject to more than
one period of post-release control, the period * * * for all of the sentences shall be the period * *
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* that expires last[.]”). R.C. 2967.28(B)(1) states that a five-year period of postrelease control
shall be imposed upon a defendant’s conviction for a felony of the first degree.
{¶10} A review of the trial court’s February 1, 2010 sentencing entry reflects that the
trial court imposed “[f]ive (5) years of mandatory post release control” upon Brown’s release
from prison. Because Brown was convicted of a first-degree felony, we conclude that the trial
court’s imposition of a five-year period of postrelease control at the resentencing hearing was
proper. See R.C. 2967.28(B)(1). Accordingly, the trial court did not err by failing to notify
Brown during the resentencing hearing that he was subject to only a three-year period of
postrelease control.
{¶11} Moreover, although the trial court issued a nunc pro tunc entry on April 22, 2014
that altered Brown’s mandatory postrelease control sentence from five years to three years
following a hearing on the matter, the nunc pro tunc entry fails to explain the trial court’s basis
for doing so, and the transcript from said hearing has not been made a part of the appellate
record. While we recognize that the trial court’s April 22, 2014 nunc pro tunc entry was issued
pursuant to an agreement between the parties, the imposition of a mandatory five-year term of
postrelease control upon a defendant’s conviction for a first-degree felony is dictated by statute.
See R.C. 2967.28(B)(1); State v. Rober, 6th Dist. Lucas No. L-14-1168, 2015-Ohio-5501, ¶ 39.
Accordingly, we vacate the trial court’s April 22, 2014 nunc pro tunc entry, as it is violative of
the clear mandate contained in R.C. 2967.28(B)(1). Lastly, because the trial court properly
notified Brown of the mandatory five-year period of postrelease control during his resentencing
hearing in 2009 and in its sentencing entry, a remand for resentencing is unwarranted in this
case.
{¶12} Brown’s assignment of error is overruled.
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III.
{¶13} With Brown’s sole assignment of error having been overruled, the judgment of
the Summit County Court of Common Pleas is affirmed.
Judgement affirmed and
April 22, 2014 order vacated.
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.
JULIE A. SCHAFER
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
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APPEARANCES:
DONALD E. BROWN, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.