State v. Clark , 2019 Ohio 3196 ( 2019 )

[Cite as State v. Clark, 2019-Ohio-3196.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-86
:
v. : Trial Court Case No. 2017-CR-0641
:
TIMOTHY M. CLARK : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 9th day of August, 2019.
...........
JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
MISTY M. CONNORS, Atty. Reg. No. 0075457, 4050 Willow Run Drive, Dayton, Ohio
45430
Attorney for Defendant-Appellant
.............
WELBAUM, P.J.
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{¶ 1} Defendant-appellant, Timothy M. Clark, appeals from his conviction and
sentence in the Clark County Court of Common Pleas following his guilty plea to one fifth-
degree-felony count of aggravated possession of drugs. In support of his appeal, Clark
contends that the trial court erred when advising him about post-release control during
his sentencing hearing and in its sentencing entry. Specifically, Clark maintains that the
trial court incorrectly informed him that he could be placed on post-release control for
“three years” when the relevant statute, R.C. 2967.28(C), actually provides that he could
be placed on post-release control for “up to three years.” The State concedes error in
this regard and asks this court to vacate the post-release control portion of Clark’s
sentence.
{¶ 2} Upon review, we agree that the trial court erred when it advised Clark about
post-release control. We also find that the error renders the post-release-control portion
of Clark’s sentence void. However, since Clark has already completed his prison
sentence, the trial court no longer has authority to resentence Clark to the appropriate
term of post-release control. Therefore, the trial court’s imposition of post-release control
must be vacated.
Facts and Course of Proceedings
{¶ 3} On May 29, 2018, Clark pled guilty to one count of aggravated possession of
drugs in violation of R.C. 2925.11(A), a felony of the fifth degree. After accepting Clark’s
guilty plea, the trial court scheduled the matter for sentencing on June 26, 2018. At the
sentencing hearing, the trial court sentenced Clark to one year in prison and advised Clark
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that, upon his release from prison, he “could be placed on post-release control for three
years.” (Emphasis added.) Sentencing Trans. p. 9. The corresponding sentencing
entry issued by the trial court also indicated that “post-release control (PRC) is optional
in this case for three years.” (Emphasis added.) Judgment Entry of Conviction Clark
C.P. No. 2017-CR-0614, Docket No. 23, p. 2. Clark now appeals from his conviction and
sentence, raising a single assignment of error for review.
Assignment of Error
{¶ 4} Under his sole assignment of error, Clark contends that the trial court erred
in sentencing him to post-release control for a period of “three years” when R.C.
2967.28(C) actually required his term of post-release control to be for a period of “up to
three years.” The State concedes error and we agree that the trial court erred in that
regard.
{¶ 5} It is well established that if a defendant commits an offense subject to post-
release control under R.C. 2967.28, the trial court must notify the defendant at sentencing
of the post-release control requirement and the consequences if the defendant violates
post-release control. R.C. 2929.19; State v. Qualls, 131 Ohio St. 3d 499, 2012-Ohio-
1111, 967 N.E.2d 718, ¶ 18. A trial court must then “incorporate into the sentencing
entry the postrelease-control notice to reflect the notification that was given at the
sentencing hearing.” (Citations omitted.) Qualls at ¶ 19. Both forms of notice are
necessary to authorize the parole board to exercise the authority that R.C. 2967.28
confers on that agency. State v. Bloomer, 122 Ohio St. 3d 200, 2009-Ohio-2462, 909
N.E.2d 1254, ¶ 69, 71.
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{¶ 6} When a judge fails to impose the required post-release control as part of a
defendant’s sentence, “that part of the sentence is void and must be set aside.”
(Emphasis sic.) State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332,
¶ 26; see also State v. Holdcroft, 137 Ohio St. 3d 526, 2013-Ohio-5014, 1 N.E.3d 382,
¶ 7. While “only the offending portion of the sentence is subject to review and
correction[,]” Fischer at ¶ 27, “[o]nce a defendant has served the prison term for an
offense for which post-release control applies, the trial court no longer has the authority
to resentence the defendant for the purpose of adding a term of post-release control[.]”
State v. Collins, 2d Dist. Montgomery No. 27939, 2018-Ohio-4760, ¶ 17, citing Holdcroft
at paragraph three of the syllabus. In other words, “[i]f a post-release control provision
of a sentence is determined to be void after a defendant has completed his prison term,
the error cannot be corrected and the defendant ‘cannot be subjected to a period of post-
release control.’ ” State v. Montgomery, 2d Dist. Clark No. 2018-CA-40, 2018-Ohio-
5278, ¶ 12, quoting State v. Adkins, 2d Dist. Greene No. 2010-CA-69, 2011-Ohio-2819,
¶ 13. (Other citations omitted.)
{¶ 7} In State v. Tanksley, 2d Dist. Clark No. 2015-CA-80, 2016-Ohio-2963, this
court also explained that:
“ ‘[W]here a sentence is void because it does not contain a statutorily
mandated term, the proper remedy is * * * to resentence the defendant.’ ”
Fischer at ¶ 10, quoting State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-
6085, 817 N.E.2d 864, ¶ 23. (Other citation omitted.) However, if proper
notification is given during the sentencing hearing and the sentencing entry
either omits or states the wrong term of post-release control, a trial court is
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instead authorized to correct the error or omission with a nunc pro tunc
entry. State ex rel. Womack v. Marsh, 128 Ohio St. 3d 303, 2011-Ohio-229,
943 N.E.2d 1010, ¶ 14-15; State v. Qualls, 131 Ohio St. 3d 499, 2012-Ohio-
1111, 967 N.E.2d 718, ¶ 30. Nevertheless, the trial court's ability to
correct its judgment through a nunc pro tunc entry or by resentencing
ceases when the defendant completes his prison sentence. State v.
Huber, 2d Dist. Clark No. 2013 CA 16, 2014-Ohio-2095, ¶ 9, citing Holdcroft
at paragraph three of the syllabus and Qualls at ¶ 24. Under that
circumstance, post-release control cannot be imposed. State v.
Cooper, 8th Dist. Cuyahoga No. 103066, 2015-Ohio-4505, ¶ 10, citing
Qualls at ¶ 24. (Other citations omitted.)
(Emphasis added.) Tanksley at ¶ 10.
{¶ 8} In Tanksley, we found that the trial court’s imposition of post-release control
for Tanksley’s aggravated robbery conviction was void as a result of the trial court’s use
of improper “up to” language in the sentencing entry. Id. at ¶ 24. Since Tanksley had
already completed his prison sentence for aggravated robbery, we found that the trial
court no longer had authority to correct the improper “up to” language. Id. We therefore
determined that the imposition of post-release control remained void. Id. Accordingly,
because the imposition of post-release control was void, this court found that the trial
court did not have authority to sanction Tanksley for a later violation of post-release
control. Id.
{¶ 9} In this case, Clark’s fifth-degree-felony offense of aggravated possession of
drugs carried a discretionary term of post-release control for a period of “up to three
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years.” R.C. 2967.28(C). The trial court, however, affirmatively misstated at the
sentencing hearing and in the sentencing entry that Clark was subject to a discretionary
term of post-release control for a period of “three years” as opposed to “up to three years.”
As a result of this error, the post-release-control portion of Clark’s sentence is void,
meaning the imposition of post-release control is a nullity. See State v. Billiter, 134 Ohio
St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 10. Because Clark has already served
his one-year prison term, the trial court no longer has authority to correct the error in his
sentence. Therefore, the term of post-release control imposed by the trial court remains
void and must be vacated.
{¶ 10} Clark’s assignment of error is sustained.
Conclusion
{¶ 11} Having sustained Clark’s assignment of error, the post-release control
portion of his sentence is hereby vacated.
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FROELICH, J. and HALL, J., concur.
Copies sent to:
John M. Lintz
Misty M. Connors
Ohio Adult Parole Authority
Hon. Douglas M. Rastatter