State v. White , 2020 Ohio 4313 ( 2020 )

[Cite as State v. White, 2020-Ohio-4313.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-153
v. : (C.P.C. No. 03CR-7014)
Marcus D. White, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 3, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee.
On brief: Marcus D. White, pro se.
APPEAL from the Franklin County Court of Common Pleas
NELSON, J.
{¶ 1} When it resentenced Marcus D. White in October of 2006 on his (affirmed)
convictions for murder (15 years to life) and felonious assault (seven additional years) with
a three-year consecutive firearm specification, the trial court stated that a five-year term of
postrelease control would attach (presumably to the felonious assault sanction). That
stated term of postrelease control was in error; pursuant to statute, it should have been
three years and not five. But Mr. White didn't raise the issue in his direct appeal from that
resentencing or in his various later appeals and other court filings until 2017. Compare,
e.g., State v. White, 10th Dist. No. 07AP-743, 2008-Ohio-701; State v. White, 10th Dist. No.
12AP-1055, 2013-Ohio-2217; State v. White, 10th Dist. No. 17AP-538, 2017-Ohio-8750,
No. 19AP-153 2
with September 12, 2017 "Motion to Vacate and Set Aside a Statutorily Void Sentence."
When he finally did bring it to the trial court's attention, the trial court reduced the
postrelease control period from five years to three years in what it styled a nunc pro tunc
entry to correct "a scrivener's error." See February 15, 2019 Decision and Entry at 2;
February 19, 2019 Nunc Pro Tunc Re-Sentencing Entry.
{¶ 2} Mr. White has appealed the trial court's refusal to eliminate the post-release
control time altogether, arguing that he already has served his prison sentence on the
felonious assault count and remains incarcerated under his murder sentence. By entry of
August 29, 2019, we stayed consideration of the appeal pending determination by the
Supreme Court of Ohio of State v. Hudson, __ Ohio St.3d __, 2020-Ohio-3849 (July 30,
2020). The Supreme Court now has decided that case and has reconfirmed its also recent
ruling in State v. Harper, __ Ohio St.3d __, 2020-Ohio-2913 (May 14, 2020), that "when
the trial court has subject-matter jurisdiction over the crime and personal jurisdiction over
the accused, the failure to properly impose postrelease control in a sentence renders that
sentence voidable, not void." Hudson at ¶ 14, citing Harper at ¶ 39-42. Because a claimed
mistake in postrelease control does not make even that portion of a sentence void, any such
asserted error that was not challenged on direct appeal from the sentence "is now barred
by the doctrine of res judicata." Hudson at ¶ 16, citing Harper at ¶ 41 (further citation
omitted).
{¶ 3} Mr. White's objection to the postrelease control term as imposed in 2007
therefore was not void, as he asserts, but instead was voidable through timely appeal—an
appeal that he did not bring during the prescribed time. And he cannot be heard now to
complain that the trial court improperly used the nunc pro tunc mechanism to reduce the
postrelease control term to its statutorily specified three-year period: as the state submits,
No. 19AP-153 3
that alteration in no way harms and only could (perhaps potentially) benefit him. See, e.g.,
State v. Johnson, 8th Dist. No. 61904, 1993 Ohio App. Lexis 1263, *5 (correction resulted
in no prejudice to defendant and thus provided him no ground for reversal).
{¶ 4} Under the binding precedents of Hudson and Harper, we overrule
Mr. White's interrelated assignments of error (which urge that the trial court lacked
jurisdiction to reduce the postrelease control term when the prison time for the count to
which it attached already [allegedly] had been served, and that the correction was improper
too absent an in-person re-resentencing hearing), and we affirm the judgment of the trial
court.
Assignments of error overruled; judgment affirmed.
BRUNNER and BEATTY BLUNT, JJ., concur.