State v. Bostic

2019 Ohio 2658

• Court: Ohio Court of Appeals
• Decided: June 28, 2019
• Docket: L-18-1219
• Status: Published

Opinion

[Cite as State v. Bostic, 2019-Ohio-2658.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-18-1219

Appellee Trial Court No. CR0201502773

v.

Kenneth Bostic, Jr. DECISION AND JUDGMENT

Appellant Decided: June 28, 2019

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Joseph Medici, Assistant State Public Defender, for appellant.

PIETRYKOWSKI, J.

{¶ 1} Defendant-appellant, Kenneth Bostic, Jr., appeals the September 13, 2018

judgment of the Lucas County Court of Common Pleas, which denied his motion to

vacate judicial sanction; specifically, his sanction for violating postrelease control. For

the foregoing reasons we affirm. {¶ 2} The procedural history of this case is as follows. On January 22, 2016,

appellant was sentenced to three years of imprisonment for burglary. The court further

found that appellant committed the burglary while on postrelease control in three prior

cases and sentenced appellant to an additional 1,277 days. Appellant did not file a direct

appeal from his conviction and sentence.

{¶ 3} On May 10, 2018, appellant filed a motion to vacate judicial sanction

arguing that because the postrelease control sanction was not properly imposed in the

prior three criminal cases, he could not be subjected to a sanction based on a violation in

the present case. Additionally, the prior cases were the subject of nunc pro tunc

judgment entries, all dated August 18, 2006, which stated: “Defendant given notice of

appellate rights under R.C. 2953.08 and post release control notice under R.C.

2929.19(B)(3) and R.C. 2967.28.”

{¶ 4} Appellant’s argument relied on the Supreme Court of Ohio’s case captioned

State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, wherein, the court

clarified that when imposing postrelease control, the sentencing court must specify

whether it is discretionary or mandatory, the duration, must include a statement that the

Adult Parole Authority will administer the postrelease control under R.C. 2967.28, and

that any violation will subject the offender to the consequence set forth in the statute. Id.

at ¶ 1. Appellant further contended that because he had already served his terms of

imprisonment in the three cases, a nunc pro tunc sentencing entry could not issue to

correct the postrelease control portions of the sentence.

2. {¶ 5} On September 13, 2018, the trial court denied the motion finding that the

holding in Grimes did not apply retroactively and that appellant was properly sentenced

based on the applicable law on the date of sentencing. This appeal followed with

appellant raising two assignments of error for our review:

Assignment of Error I: The trial court erred when it denied Mr.

Bostic’s Motion to Vacate Judicial Sanction from cases CR 99-2196, CR

02-1339, and CR 03-3559 by holding applicable case law on the subject

was not pronounced retroactively.

Assignment of Error II: The trial court erred when it denied Mr.

Bostic’s motion to vacate his judicial sanction.

{¶ 6} Appellant’s assignments of error are related and will be jointly addressed.

At the time of appellant’s sentencings in the prior cases, this court adhered to the

Supreme Court of Ohio’s case of State v Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085,

817 N.E.2d 864, paragraph one of the syllabus which states: “When sentencing a felony

offender to a term of imprisonment, a trial court is required to notify the offender at the

sentencing hearing about post-release control and is further required to incorporate that

notice into its journal entry imposing sentence.” See State v. Embry, 6th Dist. Lucas No.

L-03-1114, 2006-Ohio-729, ¶ 15. A valid notice required only a reference to the

postrelease control statutes. State v. Myers, 6th Dist. Lucas Nos. L-18-1033, L-18-1118,

2019-Ohio-2048, ¶ 5, citing State v. Murray, 2012-Ohio-4996, 979 N.E.2d 831, ¶ 24 (6th

Dist.).

3. {¶ 7} Relatedly, appellant also argues that because his prison terms for the

convictions had been served, the 2006 nunc pro tunc judgment entries could not act to

properly impose postrelease control. We disagree. This court, addressing this precise

issue held:

If the trial court gives the proper notice during the sentencing

hearing, but fails to include proper notice in its sentencing judgment entry,

the trial court can enter a nunc pro tunc judgment to correct the clerical

error pursuant to Crim.R. 36 and need not provide a resentencing hearing

pursuant to R.C. 2929.191. State v. Qualls, 131 Ohio St.3d 499, 2012-

Ohio-1111, 967 N.E.2d 718, ¶ 26. The correction of the judgment is

permissible even after the offender has served his sentence and been

released from prison. State v. Gann, 12th Dist. No. CA2010-07-153, 2011-

Ohio-895, ¶ 24.

Murray at ¶ 23.

{¶ 8} In addition to the above-quoted language, the August 2006 nunc pro tunc

judgment entries indicate that appellant had been notified of his appellate rights “and post

release control notice under R.C. 2929.19(B)(3) and R.C. 2967.28.” Because we do not

have the sentencing transcripts from the prior cases, we must presume that the court

notified appellant of postrelease control at the sentencing hearings. Id. at ¶ 25.

4. {¶ 9} Based on the foregoing, we find that the trial court did not err when it denied

appellant’s motion to vacate the postrelease control sanction in the present case.

Appellant’s first and second assignments of error are not well-taken.

{¶ 10} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair proceeding and the judgment of the Lucas County Court of

Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs

of this appeal.

Certification of Conflict

{¶ 11} Pursuant to Ohio Constitution, Article IV, Section 3(B)(4) and App.R. 25,

we certify the record in this case to the Ohio Supreme Court for final review and

determination because our holding, which follows the precedent of our court, is in direct

conflict with the judgment pronounced by the 10th District in State v. West, 10th Dist.

Franklin No. 18AP-519, 2019-Ohio-950, ¶ 9, and State v. Harper, 2018-Ohio-2529, 115

N.E.3d 840, ¶ 15 (10th Dist.).

{¶ 12} The parties are directed to S.Ct.Prac.R. 5.03 and 8.01 for guidance on how

to proceed.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

5. State v. Bostic C.A. No. L-18-1219

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Thomas J. Osowik, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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