State v. Lintz , 2017 Ohio 5631 ( 2017 )

[Cite as State v. Lintz, 2017-Ohio-5631.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-L-089
- vs - :
SCOTT L. LINTZ, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 07 CR 000726.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Scott L. Lintz, pro se, 8474 Hallnorth Drive, Mentor, OH 44060 (Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Scott L. Lintz, appeals from the July 8, 2015 judgment of the
Lake County Court of Common Pleas, denying his pro se motion to vacate post-release
control. The judgment is affirmed.
{¶2} On February 15, 2008, appellant was indicted on two counts of Felonious
Assault, second-degree felonies, in violation of R.C. 2903.11(A)(1); two counts of
Felonious Assault, second-degree felonies, in violation of R.C. 2903.11(A)(2); two
counts of Aggravated Assault, fourth-degree felonies, in violation of R.C. 2903.12(A)(1);
and two counts of Aggravated Assault, fourth-degree felonies, in violation of R.C.
2903.12(A)(2).
{¶3} Appellant pled guilty to two lesser-included offenses of Counts One and
Two, Attempted Felonious Assault, third-degree felonies, in violation of R.C. 2923.02
and R.C. 2903.11(A)(1). The remaining counts were dismissed. The change of plea
form specified that appellant would have a mandatory three-year period of post-release
control and, if appellant violated post-release control, he could be returned to prison for
up to nine months on each violation, for a total of 50 percent of his original state prison
term. The trial court accepted appellant’s guilty plea.
{¶4} The trial court sentenced appellant to three years in prison on Count One
and four years in prison on Count Two, to run consecutively for a total of seven years.
At the sentencing hearing, appellant was correctly advised that he faced a mandatory
three-year period of post-release control. The sentencing entry, however, incorrectly
stated that post-release control was optional up to a maximum of three years. The entry
also did not state in detail the consequences for violating post-release control.
Appellant did not appeal from this sentencing entry.
{¶5} On April 1, 2010, appellant filed an “omnibus motion” in the trial court,
which included, inter alia, a request to vacate void judgment. The trial court determined
appellant’s sentencing entry failed to correctly state the post-release control sanction
because it indicated it was optional, not mandatory. The trial court held a hearing,
pursuant to R.C. 2929.191, at which the trial court stated:
With respect to page three of that judgment entry [filed on July 17,
2008], the first sentence of the second paragraph shall be corrected
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to state as follows: ‘The court has further notified the Defendant
that post release control is mandatory in this case for a period of
three 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 remainder of that paragraph and the
remainder of the judgment entry of sentence shall remain the same.
The trial court also made a reference to the consequences for violating conditions of
post-release control, but it did not “spell out” those consequences during the hearing.
{¶6} On June 10, 2010, the trial court issued a nunc pro tunc entry that
correctly included the mandatory three-year period of post-release control. The nunc
pro tunc entry did not “spell out” the consequences for violating post-release control.
{¶7} Appellant filed a notice of appeal from the nunc pro tunc entry. He did not
raise any issue regarding the trial court’s advisement of the consequences for violating
post-release control. We affirmed the trial court in State v. Lintz, 11th Dist. Lake No.
2010-L-067, 2011-Ohio-6511.
{¶8} Appellant has completed his total stated prison term and was released
from prison on May 25, 2015. Upon his release, appellant was placed on post-release
control. On May 27, 2015, appellant filed a pro se motion to vacate post-release
control, which the trial court denied on July 8, 2015.
{¶9} Appellant appealed from this entry. We stayed appellant’s appeal pending
a decision from the Ohio Supreme Court in State v. Grimes, which has since been
decided. Slip Opn. 2017-Ohio-2927 (Sup.Ct.).
{¶10} Appellant raises one assignment of error for our review:
The trial court committed plain error by denying Mr. Lintz’s motion
to vacate the void post release control portion of his sentence
because at the resentencing hearing the trial court failed to provide
oral notification of the consequences of any post release control
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violations, nor journalized the consequences rendering the post
release control portion of the sentence void.
{¶11} Appellant’s argument on appeal is that the trial court failed to properly
notify him of the consequences of violating post-release control and also failed to
journalize a proper notification into its sentencing entry. Appellant alleges this error
renders the post-release control portion of his sentence void, the error cannot be
resolved as he has completed his prison term, and the imposition of post-release control
must therefore be vacated. For a more thorough examination of the partial voidness
doctrine in the realm of post-release control, see this court’s opinion in State v. Hall,
11th Dist. Ashtabula No. 2016-A-0069, 2017-Ohio-4376.
{¶12} The Ohio Supreme Court’s “main focus in interpreting the sentencing
statutes regarding postrelease control has always been on the notification itself and not
on the sentencing entry.” State v. Qualls, 131 Ohio St. 3d 499, 2012-Ohio-1111, ¶19
(citations omitted). Statutorily compliant notification includes the nature and length of
the term of post-release control and the consequences of violating post-release control.
See id. at ¶18 (citations omitted) and State v. Bloomer, 122 Ohio St. 3d 200, 2009-Ohio-
2462, ¶69, citing R.C. 2929.191.
{¶13} When an offender does not receive statutorily compliant notification at the
sentencing hearing, the only remedy is to provide the offender with proper notification
before he completes the prison term for the relevant offense. See State v. Holdcroft,
137 Ohio St. 3d 526, 2013-Ohio-5014, paragraph three of the syllabus.
{¶14} The trial court’s original 2008 sentencing entry incorrectly stated that post-
release control was optional up to a maximum of three years. The trial court held a
hearing in 2010, pursuant to R.C. 2929.191, for the limited purpose of notifying
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appellant that the sentencing entry was being corrected to reflect the notification he had
received at his sentencing hearing, to wit: that post-release control was mandatory for a
term of three years. That correction relates back to the original sentencing entry and
has the same effect as if the trial court had originally included it in appellant’s sentence.
Lintz, supra, at ¶33, citing R.C. 2929.191 and State v. McKinney, 11th Dist. Trumbull
No. 2010-T-0011, 2010-Ohio-6445, ¶19.
{¶15} Further, any challenge to the nunc pro tunc entry is limited to what
occurred at the R.C. 2929.191 hearing and to what was corrected in the original
sentencing entry. Notification of the consequences of violating post-release control was
not before the trial court at the R.C. 2929.191 hearing and was not changed or
corrected in the nunc pro tunc entry. Therefore, we must determine whether appellant
was properly notified of the consequences at the original sentencing hearing.
{¶16} The entry now before us on appeal denied appellant’s motion to vacate his
post-release control. In that entry, the trial court stated the following:
During both the change of plea hearing and the sentencing hearing,
Lintz was correctly told that he faced mandatory three years post-
release control. * * * The court also advised him that if he violated
post-release control, more restrictive post-release control sanctions
could be imposed, he could be sent back to prison as part of the
sentence just imposed for an additional period of time that could not
exceed one-half of the original prison sentence and that if his
violation of post-release control was a new felony offense, he could
be prosecuted for that new offense with yet an additional prison
term being imposed as well.
{¶17} This is supported by the written plea agreement, signed by appellant,
which provides: “After prison release, I will have a mandatory 3 years of post-release
control. If I violate post-release control, I could be returned to prison for up to another
nine (9) months for each violation, for a total of 50% of my original stated prison term.”
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{¶18} Appellant has not provided this court with a transcript of the original
sentencing hearing nor has he pointed to anything else in the record to challenge the
trial court’s statement that it properly notified appellant of the consequences of violating
post-release control at the original sentencing hearing. Under Ohio law, it is the
appellant’s duty to file portions of the transcript that are necessary for reviewing a trial
court’s decision. State v. Hundzsa, 11th Dist. Portage No. 2008-P-0012, 2008-Ohio-
4985, ¶15-17, citing App.R. 9(B). In the absence of an adequate record, we must
presume regularity in the trial court proceedings. Id. at ¶18; see also State v. King, 10th
Dist. Franklin Nos. 15AP-930, 15AP-931, & 15AP-933, 2016-Ohio-1247, ¶18. We
therefore presume the trial court provided proper notification of the consequences of
violating post-release control at appellant’s original sentencing hearing in 2008.
{¶19} Even presuming proper notification of the consequences at the hearing,
that notification must also be set forth in the sentencing entry. When proper notification
is given at the sentencing hearing, but the entry does not properly reflect the notification
given, it may be corrected by way of a Crim.R. 36 nunc pro tunc entry. Qualls, supra, at
¶24. Again, this entry must be corrected prior to the offender’s release from prison on
the relevant offense or post-release control cannot be imposed. Id. Because appellant
has already been released from prison, the only remaining issue before us is whether
the sentencing entry properly reflects the notification appellant is presumed to have
received at his original sentencing hearing.
{¶20} Recently, in State v. Grimes, the Ohio Supreme Court decided what
constitutes sufficient notice in the sentencing entry with regard to the consequences of
violating post-release control. The trial court is only required to include “a statement to
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the effect that the Adult Parole Authority (‘APA’) will administer the postrelease control
pursuant to R.C. 2967.28 and that any violation by the offender of the conditions of
postrelease control will subject the offender to the consequences set forth in that
statute.” Grimes, supra, at ¶1.
{¶21} In Grimes, the trial court’s sentencing entry stated it had notified the
offender of “‘the consequences for violating conditions of post release control imposed
by Parole Board under Revised Code § 2967.28. The Defendant is ordered to serve as
part of this sentence any term for violation of that post release control.’” Id. at ¶2. The
Supreme Court held that this notification was sufficient for the purposes of advising the
defendant of the consequences of violating post-release control:
We agree that articulating in the sentencing entry the specific
information set forth in R.C. 2929.19—including that ‘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,’ R.C. 2929.19(B)(2)(e)—would be more thorough.
Although the trial court in this case could have been more
comprehensive in its sentencing entry, the entry nevertheless
satisfies the requirement that the trial court incorporate the
advisements it provided at the sentencing hearing. By referring to
R.C. 2967.28, the trial court’s entry empowered Grimes and other
readers to consult the statute and determine what consequences
the APA could impose for any violation of the conditions of
postrelease control. The entry thus met the statutory threshold for
imposing a valid postrelease-control sentence.
Id. at ¶19.
{¶22} In the case sub judice, both the 2008 original sentencing entry and the
2010 nunc pro tunc entry state, similar to Grimes, that the court notified appellant of “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
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prison term for violation of that post release control.” Pursuant to Grimes, this
notification was sufficient.
{¶23} Appellant’s sole assignment of error is without merit.
{¶24} The judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, P.J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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