State v. Craft

2019 Ohio 4662

Opinion

[Cite as State v. Craft, 2019-Ohio-4662.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 29420

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE CHRISTOPHER CRAFT COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR-2005-07-2434-D

DECISION AND JOURNAL ENTRY

Dated: November 13, 2019

SCHAFER, Judge.

{¶1} Defendant-Appellant, Christopher Craft, appeals from the judgment of the

Summit County Court of Common Pleas denying his motion to modify sentence. This Court

reverses.

I.

{¶2} On November 14, 2005, the trial court accepted Mr. Craft’s guilty plea and found

him guilty of involuntary manslaughter in violation of R.C. 2903.04, a felony of the first degree,

with a firearm specification. The trial court sentenced Mr. Craft to a total of thirteen years in

prison: ten years for involuntary manslaughter and three years on the firearm specification,

which the court ordered him to serve prior to and consecutively with the sentence imposed on the

involuntary manslaughter charge as required by law. Relevant to this appeal is the portion of the

trial court’s sentencing entry stating:

After release from prison, [Mr. Craft] is ordered subject to post-release control to the extent the parole board may determine as provided by law. 2

{¶3} After completing his sentence, Mr. Craft was released from prison. Thereafter, he

filed a “motion to modify sentence.” In the motion, he asserted that the trial court erred when it

sentenced him to an indefinite period of post-release control instead of imposing the statutory

five-year period of postrelease control. Consequently, Mr. Craft contended, the post-release

portion of his sentence was void as a matter of law. Mr. Craft moved the trial court for an entry

vacating the “void portion of its sentence imposing an indefinite term of post[-]release control *

* *.”

{¶4} The State did not oppose Mr. Craft’s motion to modify sentence. However, the

trial court issued an order denying the motion, finding that Mr. Craft “had notice of the

requirement of [p]ost-[r]elease [c]ontrol pursuant to the [j]ournal [e]ntry of November 14, 2005

as required by R.C. 2[96]7.28.” Mr. Craft timely appealed the trial court’s decision, raising a

single assignment of error for our review.

II.

Assignment of Error

The trial court erred in denying the motion to modify sentence when the period of post[-]release control imposed was “to the extent the parole board may determine as provided by law” although the Revised Code mandated a term of post[-]release control of five years, and [Mr. Craft] had already completed his term of incarceration.

{¶5} Mr. Craft argues that the trial court erred by denying his motion to modify the

portion of sentence imposing post-release control. Citing to R.C. 2967.28(B), Mr. Craft

contends that the trial court was required to advise him at sentencing that he was subject to a

mandatory term of five years post-release control. Because the trial court incorrectly advised

him that he would be subject to a period of post-release control to be determined by the parole

board, Mr. Craft asserts that the trial court should have recognized that the failure to properly 3

advise him as to the mandatory period of five years of post-release control rendered that portion

of his sentence void. Further, because such an error cannot be remedied after the term of

incarceration has been completed, Mr. Craft contends that the trial court should have entered an

order terminating his pos-release control.

{¶6} In response, the State concedes that Mr. Craft was not properly notified of his

mandatory term of post-release control in the sentencing entry. The State further concedes that,

following Mr. Craft’s release from prison, his sentence is not subject to correction or revision

and, therefore, the judgment of the trial court should be reversed.

{¶7} When a trial court fails to impose a statutorily mandated term of post-release

control as part of a defendant’s sentence, that portion “of the sentence is void and must be set

aside.” State v. Keyes, 9th Dist. Lorain No. 14CA010561, 2015-Ohio-1757, ¶ 10, quoting State

v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 26; see State v. Grimes, 151 Ohio St.3d 19,

2017-Ohio-2927, ¶ 1, 8-11 (Analyzing the requirements for providing proper notice to a

defendant regarding the imposition of post-release control at a sentencing hearing and in the

subsequent sentencing entry.) If the error in sentencing is not addressed until after the defendant

has completed the prison term, the court then lacks the authority to impose post-release control.

Keyes at ¶ 10, quoting State v. Leasure, 9th Dist. Summit No. 25596, 2011-Ohio-3665, ¶ 7.

{¶8} Upon review of the record, we agree that the trial court did not provide the

statutorily required post-release control notice in its entry sentencing Mr. Craft. Therefore, the

trial court erred when it denied Mr. Craft the relief requested in his motion to modify sentence.

Accordingly, this Court “‘remands this matter to the trial court to vacate the portion [of Mr.

Craft’s] sentencing entry that attempted to impose post-release control’” and hereby instructs the

trial court to note on the record that, “‘because [Mr. Craft] has completed his prison sentence, he 4

will not be subject to resentencing * * *.’” Id. at ¶ 14, quoting State v. Thomas, 9th Dist.

Summit No. 26699, 2013-Ohio-2078, ¶ 7.

III.

{¶9} Mr. Craft’s assignment of error is sustained. The judgment of the Summit County

Court of Common Please is reversed, and this matter is remanded to the trial court for further

proceedings consistent with this decision.

Judgment reversed and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

JULIE A. SCHAFER FOR THE COURT 5

TEODOSIO, P. J. CALLAHAN, J. CONCUR.

APPEARANCES:

MATT FORTADO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, assistant Prosecuting Attorney, for Appellee.