State v. West , 2019 Ohio 950 ( 2019 )

[Cite as State v. West, 2019-Ohio-950.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 18AP-519
v. : (C.P.C. No. 99CR-4368)
Chad E. West, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 19, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee.
On brief: Chad E. West, pro se.
APPEAL from the Franklin County Court of Common Pleas
KLATT, P.J.
{¶ 1} Defendant-appellant, Chad E. West, appeals a judgment of the Franklin
County Court of Common Pleas that denied his motion to vacate post-release control. For
the following reasons, we remand this case to the trial court so it may issue a nunc pro tunc
entry correcting the deficiency in West's sentencing entry.
{¶ 2} In 2001, a jury found West guilty of rape, kidnapping, and burglary. On
February 4, 2002, the trial court entered a judgment that sentenced West to an aggregate
prison term of 13 years. West appealed his conviction and argued that the trial court erred
in failing to make the specific findings necessary for the imposition of consecutive prison
terms. We agreed, and, consequently, we vacated the February 4, 2002 judgment and
No. 18AP-519 2
remanded the case to the trial court for resentencing. State v. West, 10th Dist. No. 02AP-
244, 2002-Ohio-6445, ¶ 25, 30.
{¶ 3} On January 30, 2003, the trial court issued a judgment that, again, sentenced
West to an aggregate 13-year prison term. As relevant to this appeal, the January 30, 2003
judgment stated, "After the imposition of sentence, the Court notified the Defendant, orally
and in writing, of the applicable periods of post-release control pursuant to R.C.
2929.19(B)(3)(c)(d) and (e)." West did not appeal the January 30, 2003 judgment.
{¶ 4} On May 29, 2018, West filed a motion requesting that the trial court vacate
the post-release-control portion of his sentence. The trial court denied that motion in a
judgment dated May 31, 2018.
{¶ 5} West now appeals the May 31, 2018 judgment, and he assigns the following
errors:
[1.] The trial court committed reversible error when it denied
Chad West['s] motion to vacate post[-]release control because
the trial court failed to incorporate the terms of post[-]release
control into [its] journal entry as required[,] which renders the
PRC portion of defendant's sentence void.
[2.] The trial court committed [reversible] error when it denied
Chad West['s] motion to vacate post[-]release control because
the trial court failed to properly notify or make aware the
defendant that he would be supervised under section 2967.28
of the Revised Code after he was released from prison, as
required by Revised Code 2929.191(A)(1)[,] [w]hich renders
the PRC portion of defendant's sentence void. PRC is
unenforceable in defendant's case.
{¶ 6} By his first assignment of error, West argues that the January 30, 2003
judgment is void because the trial court failed to include in that judgment necessary
information about post-release control. We agree the January 30, 2003 judgment contains
insufficient information regarding post-release control.
{¶ 7} If post-release control is statutorily applicable, " 'a trial court has a statutory
duty to provide notice of post[-]release control at the sentencing hearing.' " State v. Grimes,
151 Ohio St.3d 19, 2017-Ohio-2927, ¶ 8, quoting State v. Jordan, 104 Ohio St.3d 21, 2004-
Ohio-6085, ¶ 23. Additionally, "because a court is generally said to speak only through its
journal, * * * the trial court is 'required to incorporate that notice into its journal entry
No. 18AP-519 3
imposing sentence.' " Id., quoting Jordan at ¶ 23. A sentence imposed without fulfillment
of these two requirements is contrary to law. Id. at ¶ 11, 13. Where a trial court provides
the necessary notice at the sentencing hearing, satisfaction of the second requirement—
incorporation of that notice into the sentencing entry—requires the court to include in the
entry (1) whether post-release control is discretionary or mandatory, (2) the duration of the
post-release-control period, and (3) a statement to the effect that the Adult Parole Authority
("APA") will administer the post-release control pursuant to R.C. 2967.28 and any violation
by the offender of conditions of post-release control will subject the offender to the
consequences set forth in that statute. Grimes at ¶ 1; accord State v. Johnson, __ Ohio
St.3d __, 2018-Ohio-4957, ¶ 6 (following and applying Grimes when reviewing a case
where the defendant had filed a motion to vacate post-release control years after his
conviction became final).
{¶ 8} In the case at bar, the trial court unequivocally failed to include all the
required information in the January 30, 2003 judgment. The judgment neither states the
duration of the post-release-control period nor indicates whether post-release control is
discretionary or mandatory. Consequently, the January 30, 2003 judgment is deficient
under Grimes.
{¶ 9} The state argues that we cannot apply Grimes to this case because Grimes
was decided after West's conviction became final. We, however, rejected such an argument
in State v. Harper, 10th Dist. No. 17AP-762, 2018-Ohio-2529. In that case, the trial court
denied a motion to vacate post-release control that the defendant had filed long after he
had exhausted his appellate remedies. In the motion and on appeal, the defendant argued
that his sentencing entry did not comply with Grimes. In response, the state asserted that
the defendant was seeking a retroactive application of Grimes, which was legally
impermissible. We were not persuaded, explaining that finality and res judicata did not bar
relief under Grimes because "a failure to properly impose post-release control renders a
sentence void in relevant part and therefore open to challenge at any time." Harper at ¶ 15.
{¶ 10} The state argues that Harper is distinguishable from this case because, in
Harper, the sentencing entry did not state the consequences of violating post-release
control, where here, the January 30, 2003 judgment failed to specify the applicable nature
and duration of the post-release control. We find this distinction immaterial. In both
No. 18AP-519 4
Harper and this case, the trial court did not properly impose post-release control because
the sentencing entries did not contain all the required information. Thus, the reasoning of
Harper applies equally to this case.
{¶ 11} Having found the January 30, 2003 judgment defective under Grimes, we
must next consider the appropriate remedy. West would like us to vacate the remainder of
his post-release control. This court, however, has endorsed a different remedy. "[W]here
a defendant is properly notified of post-release control at the sentencing hearing, but the
trial court's judgment entry insufficiently incorporates such notice, the appropriate remedy
is 'that a nunc pro tunc entry be issued correcting the deficiency in the judgment entry as
defined in Grimes.' " State v. Bell, 10th Dist. No. 17AP-645, 2018-Ohio-3575, ¶ 12, quoting
Harper at ¶ 19.
{¶ 12} Here, West failed to introduce a transcript of the January 24, 2003
resentencing hearing into the record. Without a transcript, we must presume the regularity
of the proceedings, which, in this case, results in the presumption that the trial court
properly notified West of post-release control during the hearing. See Grimes at ¶ 20;
accord Harper at ¶ 3 (due to the lack of a transcript of the sentencing hearing, we
"presume[d] the regularity of proceedings and that Harper was appropriately orally
notified of post-release control"). As the problem lies solely in the January 30, 2003
judgment, a remand for the correction of that judgment is appropriate. Accordingly, we
sustain the first assignment of error to the extent that it identifies a defect in the January 30,
2003 judgment, and we remand this matter so that the trial court may issue a nunc pro
tunc entry that corrects that defect.1
{¶ 13} By West's second assignment of error, he argues that the trial court did not
notify him that the APA would supervise him as set forth in R.C. 2967.28 after his release
from prison. Conceivably, by this argument, West could be challenging the adequacy of
either the notification made during the resentencing hearing or the contents of the
January 30, 2003 judgment. To the extent West challenges the notification made in the
resentencing hearing, his argument fails because he has not provided this court with a
transcript of that hearing. As we stated above, in the absence of a transcript, we must
1 Given that the remedy ordered is the issuance of a nunc pro tunc entry, we do not address the state's
argument that, even if a trial court grants a motion to vacate post-release control, it lacks the authority to
order the APA to release an offender from supervision.
No. 18AP-519 5
presume that the trial court properly notified West regarding post-release control at the
hearing.
{¶ 14} To the extent that West challenges the January 30, 2003 judgment, our
resolution of the first assignment of error moots his argument. Because we have already
found the January 30, 2003 judgment defective for lacking information about the nature
and duration of post-release control, we need not consider any other attacks on the
sufficiency of the information contained in that judgment. Accordingly, we overrule West's
second assignment of error.
{¶ 15} For the foregoing reasons, we partially sustain West's first assignment of
error, and we overrule West's second assignment of error. We affirm the judgment of the
Franklin County Court of Common Pleas, but we remand this matter to that court so that it
may issue a nunc pro tunc entry correcting the January 30, 2003 judgment.
Judgment affirmed; cause remanded.
LUPER SCHUSTER and BRUNNER, JJ., concur.