State v. Evans , 2022 Ohio 1882 ( 2022 )

[Cite as State v. Evans, 2022-Ohio-1882.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
State of Ohio, : Case No. 21CA1148
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
Phillip Evans, :
Defendant-Appellant. : RELEASED 5/27/2022
______________________________________________________________________
APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for appellant.
David Kelley, Adams County Prosecutor, West Union, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Phillip Evans appeals his conviction for abduction and for his sole
assignment of error contends that his sentence must be set aside because the trial court
did not provide proper post-release control notifications at the sentencing hearing or in
the judgment of conviction. Evans argues that under the post-release control statute, the
court should have notified him that he was subject to a period of post-release control for
a period of “up to three years, but not less than one year.” Instead, the court notified him
that post-release control was for “Three (3) years.” The state agrees and requests that
we remand the proceedings for resentencing on the limited matter of post-release control.
{¶2} Our review of the sentencing hearing transcript and the judgment of
conviction finds that the trial court erred in its post-release control notification at the
hearing and in the judgment of conviction. We sustain Evans’s sole assignment of error
Adams App. No. 21CA1148 2
and remand the matter to the trial court for re-sentencing to provide the proper post-
release control notification.
I. PROCEDURAL HISTORY
{¶3} In September 2021, Evans was indicted on one count of felonious assault
in violation of R.C. 2903.11(A)(1), a second-degree felony. Pursuant to a stipulated plea
agreement, Evans pleaded guilty to an amended charge of abduction in violation of R.C.
2905.02(A)(2), a third-degree felony, and agreed to serve 18 months in prison, plus an
additional 1,410 days in prison as a sanction for committing a felony while on post-release
control, to be served consecutively.
{¶4} At the sentencing hearing the trial court notified Evans that he would be
subject to a period of post-release control of three years. The judgment of conviction also
contains the following notification: “The Court has further notified the defendant that post
release control is Mandatory in this case for Three (3) years.”
II. ASSIGNMENT OF ERROR
{¶5} Evans assigns the following error for our review:
I. The sentence must be set aside because the trial court did not
provide proper post-release control notifications at sentencing
making the sentence voidable.
III. LAW AND ANALYSIS
{¶6} In his sole assignment of error, Evans asserts that the trial court erred when
it provided notification of his post-release control period. The trial court notified him that
the period of post-release control was a three-year period, when it should have notified
him that it was up to three years, but not less than one year. The state agrees and asks
us to remand for resentencing on the post-release control period.
Adams App. No. 21CA1148 3
{¶7} Evans was convicted of abduction in violation of R.C. 2905.02(A)(2), a third-
degree felony. Under the relevant post-release control provision, R.C. 2967.28(B)(4),
Evans was subject to post-release control for a period of “up to three years, but not less
than one year.” The trial court erred in its notification of post-release control at the hearing
and in the judgment of conviction when it notified Evans that his period of post-release
control was three years. Thus, the error cannot be corrected with a nunc pro tunc entry
and must be remanded for resentencing. See State v. Beasley, 153 Ohio St.3d 497,
2018-Ohio-493, 108 N.E.3d 1028, ¶ 260-262 (where both the sentencing hearing and the
entry omitted proper sentencing findings, the matter must be remanded for resentencing
and cannot be corrected with a nunc pro tunc entry); State v. Harper, 160 Ohio St.3d 480,
2020-Ohio-2913, 159 N.E.3d 248, ¶ 42 (“When the sentencing court has jurisdiction to
act, sentencing errors in the imposition of postrelease control render the sentence
voidable, not void, and the sentence may be set aside if successfully challenged on direct
appeal.”).
{¶8} Accordingly, we sustain Evans’s sole assignment of error, reverse the trial
court’s judgment, and remand for resentencing for proper notification of the post-release
control period.
JUDGMENT REVERSED AND CAUSE REMANDED FOR
RESENTENCING.
Adams App. No. 21CA1148 4
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED AND CAUSE REMANDED and
that appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the ADAMS
COUNTY COMMON PLEAS COURT to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed 60 days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of
Ohio an application for a stay during the pendency of proceedings in that court. If a stay
is continued by this entry, it will terminate at the earlier of the expiration of the 60-day
period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.