State v. Holsinger , 2014 Ohio 2523 ( 2014 )

[Cite as State v. Holsinger, 2014-Ohio-2523.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 13 CO 38
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
ERIC S. HOLSINGER, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common
Pleas Court, Case No. 13 CR 32.
JUDGMENT: Conviction Affirmed. Reversed and
Remanded for Resentencing.
APPEARANCES:
For Plaintiff-Appellee: Attorney Robert L. Herron
Prosecuting Attorney
Attorney Timothy J. McNicol
Asst. Prosecuting Attorney
105 S. Market Street
Lisbon, OH 44432
For Defendant-Appellant: Attorney Jay Blackstone
WPA Memorial Building
Suite 401-A
132 S. Broad Street
Canfield, OH 44406
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: June 9, 2014
[Cite as State v. Holsinger, 2014-Ohio-2523.]
DeGenaro, P.J.
{¶1} Defendant-Appellant, Eric S. Holsinger, appeals the September 13, 2013
judgment of the Columbiana County Court of Common Pleas convicting him of two counts
of rape and sentencing him accordingly. Holsinger argues that his sentence was
erroneous because the judgment entry of sentence failed to include a statement
regarding the consequences of violating post-release control. The State concedes the
error.
{¶2} Holsinger's argument is meritorious. The trial court failed to properly include
in the sentencing entry a statement explaining the consequences of violating post-release
control. Because he was sentenced after July 11, 2006, Holsinger is subject to the
sentence-correction mechanism contained in R.C. 2929.191(C). Accordingly, Holsinger's
conviction is affirmed, and this matter is reversed and remanded for a limited
resentencing hearing and judgment entry to correct the post-release control defect
pursuant to R.C. 2929.191(C).
Facts and Procedural History
{¶3} On February 27, 2013, Holsinger was indicted by the Columbiana County
Grand Jury on three counts of rape (two counts under R.C. 2907.02(A)(2) and one count
under R.C. 2907.02(A)(1)(c)), first-degree felonies; and two counts of unlawful sexual
conduct with a minor (R.C. 2907.04(A)), third-degree felonies. Holsinger was accused of
raping a 13-year old boy in the men's restroom at the Salem Memorial Building on
December 10, 2012. Holsinger initially pled not guilty, was arraigned and counsel was
appointed. He executed a speedy trial waiver on April 12, 2013. The State filed a Bill of
Particulars on April 22, 2013.
{¶4} On June 28, 2013, Holsinger entered into a plea agreement with the State in
which he agreed to plead guilty to one count of rape under R.C. 2907.02(A)(2), and one
count of rape under R.C. 2907.02(A)(1)(c), and in exchange the State agreed to
recommend a ten-year aggregate prison term and to dismiss the remaining charges.
After a hearing, the trial court accepted Holsinger's guilty plea, ordered a pre-sentence
investigation and set the matter for sentencing on August 23, 2013. However, when the
matter was called for sentencing on that date, Holsinger initially requested leave to file a
-2-
motion to withdraw his guilty plea. The trial court granted leave and set a hearing for the
matter on September 13, 2013. At the hearing on that date, however, Holsinger informed
the trial court that he had changed his mind and that he wished to abide by his plea
agreement.
{¶5} After engaging in a dialogue with Holsinger personally and determining that
he indeed had decided not to pursue the plea withdrawal motion, the trial court proceeded
to sentence Holsinger. The State kept its promise to recommend a ten-year aggregate
sentence. The victim's father made a statement urging the trial court to impose the
maximum sentence. Holsinger was afforded his allocution rights but declined to make a
statement.
{¶6} After considering all the information presented at the hearing, the PSI, the
principles and purposes of felony sentencing under R.C. 2929.11 and after balancing the
seriousness and recidivism factors pursuant to R.C. 2929.12, the trial court chose to
deviate from the recommended sentence, ultimately sentencing Holsinger to an 11-year
aggregate prison term: 11 years on each count, to be served concurrently. Holsinger was
designated a Tier III sex offender and given 229 days of jail-time credit.
{¶7} Regarding post-release control, during the hearing, the trial court informed
Holsinger as follows:
You are hereby advised of Post Release Control as follows: Upon
being released from prison you will be supervised on Post Release Control
for a period of five years.
If you have - - if you violate that supervision or condition of Post
Release Control, the parole board may impose a prison term as part of the
sentence of up to one half the stated prison term originally imposed.
If you violate that supervision or condition of Post Release Control
by committing a separate felony offense, you will be punished separately
for that felony offense.
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{¶8} The trial court's September 13, 2013 sentencing entry stated the following
regarding post-release control: "The Defendant was advised upon being released from
prison he will be supervised by the parole board on Post Release Control for 5 years.
The notification of Post Release Control was made at the sentencing hearing pursuant to
R.C. 2929.19."
Post-release Control
{¶9} In his sole assignment of error, Holsinger asserts:
{¶10} "The trial court, in its September 13, 2013 Judgment Entry of Sentencing,
failed to include proper notification of post-release control provisions."
{¶11} R.C. 2967.28(B) requires that a sentencing court imposing a "sentence to a
prison term for a felony of the first degree * * * shall include a requirement that the
offender be subject to a period of post-release control imposed by the parole board after
the offender's release from imprisonment." First-degree felonies receive a five-year
mandatory post-release control term. R.C. 2967.28(B)(1).
{¶12} R.C. 2929.19(B)(3)(e) additionally mandates that a trial court notify a
defendant at sentencing that if he violates a condition of post-release control, as a
consequence, 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 defendant.
{¶13} Here, during the sentencing hearing, the trial court properly notified
Holsinger about his five-year post-release control term, along with the consequences of
violating post-release control. The sentencing entry included the length of the term, but
failed to include information regarding the consequences of violating post-release control.
The entry merely stated: "The Defendant was advised upon being released from prison
he will be supervised by the parole board on Post Release Control for 5 years. The
notification of Post Release Control was made at the sentencing hearing pursuant to R.C.
2929.19."
{¶14} Because Holsinger was sentenced after July 11, 2006, the sentence
correction mechanism in R.C. 2929.191(C) applies. See State v. Singleton, 124 Ohio
St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶1; State v. Whitted, 7th Dist. No. 11 MA
-4-
25, 2012-Ohio-1695, ¶14. R.C. 2929.191(C) provides: "On or after July 11, 2006, a court
that wishes to prepare and issue a correction to a judgment of conviction of a type
described in division (A)(1) or (B)(1) of this section shall not issue the correction until after
the court has conducted a hearing in accordance with this division."
{¶15} Division (A)(1) concerns the trial court's failure to notify the offender that he
will be subject to post-release control after the offender leaves prison or the trial court's
failure to include a statement to that effect in the sentencing entry. Division (B)(1)
concerns the trial court's failure to notify the offender "regarding the possibility of the
parole board imposing a prison term for a violation of supervision or a condition of post-
release control or to include in the judgment of conviction entered on the journal a
statement to that effect." In other words, it deals with the trial court's failure to notify the
offender about the consequences of violating post-release control.
{¶16} This case involves an error under division (B)(1), which the State concedes;
the trial court failed to include any information regarding the consequences of violating
post-release control in the sentencing entry. Accordingly, Holsinger's sole assignment of
error is meritorious.
{¶17} Notably, neither a modification of the sentencing entry by this court to
include the required language, nor a remand with direction for the trial court to issue a
nunc pro tunc without a hearing, are possible remedies here. While there is a line of
cases allowing for those remedies, those cases are distinguishable because the
defendants were sentenced prior to July 11, 2006, thus rendering R.C. 2929.191(C)
inapplicable. See State v. Qualls, 131 Ohio St. 3d 499, 2012-Ohio-1111, 967 N.E.2d 718,
at syllabus (when defendant, who was sentenced prior to the effective date of R.C.
2929.191, "is notified about post-release control at the sentencing hearing, but notification
is inadvertently omitted from the sentencing entry, the omission can be corrected with a
nunc pro tunc entry and the defendant is not entitled to a new sentencing hearing."); State
v. Davis, 7th Dist. No. 10 MA 160, 2011-Ohio-6025, ¶11-14 (where this court remanded
the case for the trial court to correct the sentencing entry to include the omitted post-
-5-
release control advisement without requiring a hearing, since the defendant was
sentenced prior to July 11, 2006.)
{¶18} As this court recently explained in State v. Pullen, 7th Dist. No. 11 MA 10,
2012-Ohio-1498, ¶12:
[T]he legislature has provided a procedure for correcting faulty post-
release control notifications that is applicable to cases where the
sentencing occurred after July 11, 2006. Singleton, 124 Ohio St. 3d 173, ¶
23, 27, 32, 35 (holding that R.C. 2929.191 cannot be applied retroactively
as intended but that it would be applied prospectively to sentences entered
on or after July 11, 2006). Thus, for sentences entered prior to July 11,
2006, the Supreme Court's procedure developed through case law applies,
but for sentences entered on or after July 11, 2006, such as the sentence
here, the statutory procedure applies. See id.
{¶19} Thus, pursuant to the statutory procedure set forth in R.C. 2929.191(C),
Holsinger's conviction is affirmed and this matter is reversed and remanded to the trial
court to conduct a limited resentencing hearing on the issue of post-release control and to
then issue a sentencing entry.
Donofrio, J., concurs.
Waite, J., concurs.