[Cite as State v. Garcia-Gutierrez, 2026-Ohio-1901.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA2025-07-081 Appellee, : OPINION AND vs. : JUDGMENT ENTRY 5/26/2026 FERMIN GARCIA-GUTIERREZ, :
Appellant. :
:
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2024-04-0463
Michael T. Gmoser, Butler County Prosecuting Attorney, and Stephen M. Wagner, Assistant Prosecuting Attorney, for appellee.
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
____________ OPINION
SIEBERT, J.
{¶ 1} Fermin Garcia-Gutierrez appeals the sentence imposed by the trial court
after he pled guilty to murder. In his sole assignment of error, Garcia Gutierrez asserts
his sentence is contrary to law because the trial court imposed "Lifetime Parole Butler CA2025-07-081
supervision."1 Garcia-Gutierrez's arguments are well taken. While the State presents a
logical counter argument, this court's precedent is clear—a trial court does not have the
statutory authority to impose lifetime parole supervision. But we take this opportunity to
clarify our precedent as it relates to the nature of an error by the trial court in sentencing
a defendant to "lifetime parole supervision."
Background
{¶ 2} The facts of this case for purposes of this appeal are simple. Police
originally arrested and charged Garcia-Guiterrez with aggravated possession of
methamphetamine, obstruction, and multiple gun offenses. However, Garcia-Gutierrez
later confessed to detectives that he murdered his housemate. A second indictment with
various charges, including murder, followed. Garcia-Gutierrez pled guilty to murder and
a firearm specification from the second indictment. All other charges were dismissed.
{¶ 3} The court imposed an indefinite mandatory minimum term of 15 years in
prison and a maximum term of life imprisonment. See R.C. 2929.02(B)(1). In addition, the
trial court sentenced him to a mandatory and consecutive three-year term for the firearm
specification. Finally, the trial court's judgment stated in relevant part:
As to Count(s) Four:
The Defendant is notified that, as part of this sentence, on Court Four, if the Defendant is ever to be released from prison, the sentence includes Lifetime Parole supervision by the Adult Parole Authority, pursuant to Ohio Revised Code 2967.13 and any prison term for violation of parole.
{¶ 4} This appeal followed.
Standard of Review and Applicable Law
{¶ 5} Garcia-Gutierrez asserts his sentence is contrary to law. R.C.
1. Garcia-Gutierrez originally asserted two assignments of error on appeal but filed a motion to withdraw his first assignment of error on February 11, 2026. This court granted that motion on February 17, 2026. -2- Butler CA2025-07-081
2953.08(G)(2)(b). That is our standard of review. Id.
{¶ 6} Under Ohio law, "whoever is convicted of or pleads guilty to murder . . . shall
be imprisoned for an indefinite term of fifteen years to life." R.C. 2929.02(B)(1). Generally
speaking, when the offender had or used a gun during the offense, an additional three-
year mandatory term of imprisonment is required. R.C. 2929.14(B)(1)(a)(ii); R.C.
2941.145. Importantly, "a prisoner serving consecutively two or more sentences in which
an indefinite term of imprisonment is imposed becomes eligible for parole upon the
expiration of the aggregate of the minimum terms of the sentences." R.C. 2967.13(C). If
placed on probation, the Adult Parole Authority "may grant a final release" to a paroled
prisoner, but "in the case of a paroled prisoner whose sentence is life imprisonment, the
authority shall not grant a final release earlier than five years after the paroled prisoner is
released from the institution on parole." R.C. 2967.16(A).
{¶ 7} In construing these statutes, we previously held that a trial court does not
have the statutory authority to impose lifetime parole supervision because the relevant
statutes only discuss parole eligibility—as determined by the Adult Parole Authority—and
do not provide for lifetime parole supervision. State v. Smith, 2021-Ohio-2982, ¶ 42-43
(12th Dist.); State v. Delehanty, 2023-Ohio-337, ¶ 102 (12th Dist.). In Smith, we deemed
the trial court's imposition of "mandatory lifetime supervision" on parole a "clerical error[
]" that "'may be corrected by the court at any time.'" Id. at ¶ 43. In Delehanty, we held the
trial court similarly erred when its sentencing entry informed Delehanty that she "'shall be
subject to the supervision of the Adult Parole Authority upon her release from prison for
the remainder of her life.'" (Emphasis in original.) Delehanty at ¶ 101. We vacated the
defendant's sentence on other grounds but noted "upon remand the court may
appropriately advise [Delahanty] concerning [parole] supervision upon release." Id. at ¶
101-102.
-3- Butler CA2025-07-081
Analysis
{¶ 8} Garcia-Gutierrez's argument on appeal is simple. He asserts the trial court's
sentence, specifically its imposition of "Lifetime Parole supervision," is contrary to Ohio
law and merits reversal because there is no statute that requires such supervision for a
murder offender.
{¶ 9} Applying Smith and Delehanty to the facts of this case, the trial court's
imposition of "Lifetime Parole supervision" is contrary to the law. Under Ohio law, Garcia-
Gutierrez will become eligible for parole after he serves 18 years in prison after serving
the minimum sentence for murder as well as his mandatory sentence for the related
firearm specification. R.C. 2929.02(B)(1); R.C. 29229.14(B)(1)(a)(ii); R.C. 2967.13(C). If
he were granted parole, the Adult Parole Authority may grant him a final release no sooner
than five years after being placed on parole. R.C. 2967.16(A). But again, none of these
statutes provide for the imposition of lifetime parole supervision by the trial court.
{¶ 10} Nonetheless, the State argues the trial court's sentence complied with Ohio
law because if Garcia-Gutierrez is released on parole, but the Adult Parole Authority
never grants him a final release, he will be subject to parole supervision for the rest of his
life. The State therefore asserts Smith found "clerical error where none existed."
{¶ 11} Upon revisiting the issue, we conclude the State is correct that the trial court
in Smith did not make a "clerical error." A clerical error or mistake is a "mistake or
omission, that is mechanical in nature and apparent on the record and does not involve
a legal decision or judgment." State v. Lester, 2011-Ohio-5204, ¶ 18. Ohio courts are
authorized to correct clerical errors as well as "errors in the record arising from oversight
or omission" because such errors are harmless and do not affect the substantial rights of
a defendant. Crim.R. 36; Crim.R. 52(A); State v. Holling, 2025-Ohio-385, ¶ 30 (5th Dist.).
{¶ 12} Here, the at issue error must be more than a clerical mistake because the
-4- Butler CA2025-07-081
imposition of "Lifetime Parole supervision" is, as discussed above, contrary to law. Such
an error cannot be a harmless error because it affects Garcia-Gutierrez's substantial right
to not have a "lifetime" of parole supervision erroneously imposed by the trial court and
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[Cite as State v. Garcia-Gutierrez, 2026-Ohio-1901.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA2025-07-081 Appellee, : OPINION AND vs. : JUDGMENT ENTRY 5/26/2026 FERMIN GARCIA-GUTIERREZ, :
Appellant. :
:
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2024-04-0463
Michael T. Gmoser, Butler County Prosecuting Attorney, and Stephen M. Wagner, Assistant Prosecuting Attorney, for appellee.
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
____________ OPINION
SIEBERT, J.
{¶ 1} Fermin Garcia-Gutierrez appeals the sentence imposed by the trial court
after he pled guilty to murder. In his sole assignment of error, Garcia Gutierrez asserts
his sentence is contrary to law because the trial court imposed "Lifetime Parole Butler CA2025-07-081
supervision."1 Garcia-Gutierrez's arguments are well taken. While the State presents a
logical counter argument, this court's precedent is clear—a trial court does not have the
statutory authority to impose lifetime parole supervision. But we take this opportunity to
clarify our precedent as it relates to the nature of an error by the trial court in sentencing
a defendant to "lifetime parole supervision."
Background
{¶ 2} The facts of this case for purposes of this appeal are simple. Police
originally arrested and charged Garcia-Guiterrez with aggravated possession of
methamphetamine, obstruction, and multiple gun offenses. However, Garcia-Gutierrez
later confessed to detectives that he murdered his housemate. A second indictment with
various charges, including murder, followed. Garcia-Gutierrez pled guilty to murder and
a firearm specification from the second indictment. All other charges were dismissed.
{¶ 3} The court imposed an indefinite mandatory minimum term of 15 years in
prison and a maximum term of life imprisonment. See R.C. 2929.02(B)(1). In addition, the
trial court sentenced him to a mandatory and consecutive three-year term for the firearm
specification. Finally, the trial court's judgment stated in relevant part:
As to Count(s) Four:
The Defendant is notified that, as part of this sentence, on Court Four, if the Defendant is ever to be released from prison, the sentence includes Lifetime Parole supervision by the Adult Parole Authority, pursuant to Ohio Revised Code 2967.13 and any prison term for violation of parole.
{¶ 4} This appeal followed.
Standard of Review and Applicable Law
{¶ 5} Garcia-Gutierrez asserts his sentence is contrary to law. R.C.
1. Garcia-Gutierrez originally asserted two assignments of error on appeal but filed a motion to withdraw his first assignment of error on February 11, 2026. This court granted that motion on February 17, 2026. -2- Butler CA2025-07-081
2953.08(G)(2)(b). That is our standard of review. Id.
{¶ 6} Under Ohio law, "whoever is convicted of or pleads guilty to murder . . . shall
be imprisoned for an indefinite term of fifteen years to life." R.C. 2929.02(B)(1). Generally
speaking, when the offender had or used a gun during the offense, an additional three-
year mandatory term of imprisonment is required. R.C. 2929.14(B)(1)(a)(ii); R.C.
2941.145. Importantly, "a prisoner serving consecutively two or more sentences in which
an indefinite term of imprisonment is imposed becomes eligible for parole upon the
expiration of the aggregate of the minimum terms of the sentences." R.C. 2967.13(C). If
placed on probation, the Adult Parole Authority "may grant a final release" to a paroled
prisoner, but "in the case of a paroled prisoner whose sentence is life imprisonment, the
authority shall not grant a final release earlier than five years after the paroled prisoner is
released from the institution on parole." R.C. 2967.16(A).
{¶ 7} In construing these statutes, we previously held that a trial court does not
have the statutory authority to impose lifetime parole supervision because the relevant
statutes only discuss parole eligibility—as determined by the Adult Parole Authority—and
do not provide for lifetime parole supervision. State v. Smith, 2021-Ohio-2982, ¶ 42-43
(12th Dist.); State v. Delehanty, 2023-Ohio-337, ¶ 102 (12th Dist.). In Smith, we deemed
the trial court's imposition of "mandatory lifetime supervision" on parole a "clerical error[
]" that "'may be corrected by the court at any time.'" Id. at ¶ 43. In Delehanty, we held the
trial court similarly erred when its sentencing entry informed Delehanty that she "'shall be
subject to the supervision of the Adult Parole Authority upon her release from prison for
the remainder of her life.'" (Emphasis in original.) Delehanty at ¶ 101. We vacated the
defendant's sentence on other grounds but noted "upon remand the court may
appropriately advise [Delahanty] concerning [parole] supervision upon release." Id. at ¶
101-102.
-3- Butler CA2025-07-081
Analysis
{¶ 8} Garcia-Gutierrez's argument on appeal is simple. He asserts the trial court's
sentence, specifically its imposition of "Lifetime Parole supervision," is contrary to Ohio
law and merits reversal because there is no statute that requires such supervision for a
murder offender.
{¶ 9} Applying Smith and Delehanty to the facts of this case, the trial court's
imposition of "Lifetime Parole supervision" is contrary to the law. Under Ohio law, Garcia-
Gutierrez will become eligible for parole after he serves 18 years in prison after serving
the minimum sentence for murder as well as his mandatory sentence for the related
firearm specification. R.C. 2929.02(B)(1); R.C. 29229.14(B)(1)(a)(ii); R.C. 2967.13(C). If
he were granted parole, the Adult Parole Authority may grant him a final release no sooner
than five years after being placed on parole. R.C. 2967.16(A). But again, none of these
statutes provide for the imposition of lifetime parole supervision by the trial court.
{¶ 10} Nonetheless, the State argues the trial court's sentence complied with Ohio
law because if Garcia-Gutierrez is released on parole, but the Adult Parole Authority
never grants him a final release, he will be subject to parole supervision for the rest of his
life. The State therefore asserts Smith found "clerical error where none existed."
{¶ 11} Upon revisiting the issue, we conclude the State is correct that the trial court
in Smith did not make a "clerical error." A clerical error or mistake is a "mistake or
omission, that is mechanical in nature and apparent on the record and does not involve
a legal decision or judgment." State v. Lester, 2011-Ohio-5204, ¶ 18. Ohio courts are
authorized to correct clerical errors as well as "errors in the record arising from oversight
or omission" because such errors are harmless and do not affect the substantial rights of
a defendant. Crim.R. 36; Crim.R. 52(A); State v. Holling, 2025-Ohio-385, ¶ 30 (5th Dist.).
{¶ 12} Here, the at issue error must be more than a clerical mistake because the
-4- Butler CA2025-07-081
imposition of "Lifetime Parole supervision" is, as discussed above, contrary to law. Such
an error cannot be a harmless error because it affects Garcia-Gutierrez's substantial right
to not have a "lifetime" of parole supervision erroneously imposed by the trial court and
enforced by the Ohio Department of Rehabilitation and Corrections (which is required to
enforce even erroneous sentences). See State v. Henderson, 2020-Ohio-4784, ¶ 42
(finding "[t]he separation-of-powers doctrine prohibits the executive branch of government
from overriding a court's judgment about what the law requires in a particular case—even
if the court errs in its judgment and even if the error was fairly obvious"). Therefore, we
overrule Smith to the extent that it holds the imposition of lifetime parole supervision
constitutes a "clerical error."
{¶ 13} We disagree with the State's conclusion that the trial court did not err at all.
The State is correct that the Adult Parole Authority has broad discretion to issue final
release to a paroled prisoner, and unless it does so, a prisoner paroled after being
sentenced to an indefinite life sentence could remain subject to parole supervision for his
entire lifetime. R.C. 2967.16(A). However, that is not what the trial court's order stated.
The notification at issue in the trial court's judgment began with an indication of notification
("Defendant is notified"). That indication is followed by a condition ("if the Defendant is
ever to be released from prison"). But critically, that condition is followed by a clause that
indicates imposition ("the sentence includes Lifetime Parole supervision").
{¶ 14} From the record before us, we are—at best—uncertain whether the trial
court intended to impose lifetime parole supervision on Garcia-Gutierrez or whether it
intended to merely notify him of the potential parameters of parole supervision if he was
ever released from prison. The former, as discussed above, is contrary to Ohio law. The
latter, while permissible (if summarized clearly and accurately), is not required. "[T]he
better practice for a sentencing court would be to use the specific language" of the
-5- Butler CA2025-07-081
relevant sentencing statute. State v. Leegrand, 2022-Ohio-3623, ¶ 5-9, R.C.
2929.02(B)(1).
{¶ 15} Judgment reversed and remanded for proceedings consistent with this
Opinion.
HENDRICKSON, P.J., and M. POWELL, J., concur.
JUDGMENT ENTRY
The assignment of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, reversed and remanded for proceedings consistent with the above Opinion.
It is further ordered that a mandate be sent to the Butler County Court of Common Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27.
Costs to be taxed in compliance with App.R. 24.
/s/ Robert A. Hendrickson, Presiding Judge
/s/ Mike Powell, Judge
/s/ Melena S. Siebert, Judge
-6-