State v. Ewers

2011 Ohio 1354

• Court: Ohio Court of Appeals
• Decided: March 21, 2011
• Docket: 10CAA090081
• Status: Published

Opinion

[Cite as State v. Ewers, 2011-Ohio-1354.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J. -vs- Case No. 10CAA090081 RACHEL EWERS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case Nos. 07 CRI 05258 and 07 CRI 06323

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: March 21, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BRIAN J. WALTER O. ROSS LONG Assistant Prosecuting Attorney 125 North Sandusky Street Delaware County Prosecutor's Office Delaware, Ohio 43015 140 North Sandusky Street Delaware, Ohio 43015 Delaware County, Case No. 10CAA090081 2

Hoffman, P.J.

{¶1} Defendant-appellant Rachel Ewers appeals the September 17, 2010

Second Nunc Pro Tunc Judgment Entry On Sentence entered by the Court of Common

Pleas of Delaware County. The State of Ohio is plaintiff-appellee.

STATEMENT OF THE CASE1

{¶2} On October 11, 2007, the trial court sentenced Appellant on three counts

of Endangering Children. On July 15, 2010, the trial court filed a Nunc Pro Tunc

Judgment Entry On Sentence to comply with State v. Baker, 119 Ohio St.3d 1197. In

the later entry, the trial court also corrected a part of its original sentence to specify

Appellant shall be subject to a mandatory period of post-release control of three years.

{¶3} Thereafter, Appellant filed a Motion to Restore Resentencing and Motion

for Jail Time Credit. The trial court denied said motion via Judgment Entry filed

September 17, 2010, and stated therein the basis of its amended entry dated July 15,

2010, regarding post release control was to comply with R.C. 2929.191(A)(1).

Thereafter, the trial court entered its Second Nunc Pro Tunc Judgment Entry On

Sentence which is the subject of the instant appeal.

{¶4} Appellant assigns as error:

{¶5} “I. THE TRIAL COURT ERRED IN NOT HOLDING A DE NOVO RE-

SENTENCING HEARING FOR THE APPELLANT IN THIS CASE.”

{¶6} Herein, Appellant maintains the trial court erred in resentencing her

pursuant to R.C. 2929.191(A)(1) rather than conducting a de novo resentencing hearing

1 A rendition of the underlying facts is unnecessary for our disposition of Appellant’s sole assignment of error. Delaware County, Case No. 10CAA090081 3

as provided in R.C. 2929.191(C). The State concedes Appellant’s sentence cannot be

corrected by the [SECOND] nunc pro tunc entry because Appellant was originally

sentenced after July 11, 2006, the effective date of R.C. 2929.191.2 We agree.

{¶7} Appellant’s sole assignment of error is sustained. The judgment of the trial

court is reversed and the matter remanded for resentencing.

By: Hoffman, P.J.

Edwards, J. and

Delaney, J. concur

s/ William B. Hoffman_________________ HON. WILLIAM B. HOFFMAN

s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

2 See Appellee’s Brief at p.4. Delaware County, Case No. 10CAA090081 4

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : RACHEL EWERS : : Defendant-Appellant : Case No. 10CAA090081

For the reason stated in our accompanying Opinion, the September 17, 2010

Second Nunc Pro Tunc Judgment Entry On Sentence is reversed and the matter

remanded to the trial court for further proceedings in accordance with our Opinion and

the law.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY