State v. Maxwell

2012 Ohio 1807

Opinion

[Cite as State v. Maxwell, 2012-Ohio-1807.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P. J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. CT2011-0038 ARYON MAXWELL

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2005-0223

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 23, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX ARYON L. MAXWELL PROSECUTING ATTORNEY PRO SE RON WELCH Post Office Box 7010 ASSISTANT PROSECUTOR Chillicothe, Ohio 45601 27 North Fifth Street, P. O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2011-0038 2

Wise, J.

{¶1} Defendant-Appellant Aryon Maxwell appeals the decision of the Court of

Common Pleas, Muskingum County, which overruled his motion for a new sentencing

hearing. The relevant facts leading to this appeal are as follows.

{¶2} On or about February 16, 2006, Appellant Maxwell was found guilty in the

Muskingum Court of Common Pleas of one count of aggravated burglary with firearm

specification, a felony of the first degree, and one count of theft of a firearm, a felony of

the third degree. On April 10, 2006, appellant was sentenced to a total of 16 years in

prison. However, at the time of sentencing, the trial court failed to properly notify

appellant of his post release control (“PRC”) requirements in the sentencing entry. In

particular, the trial court incorrectly stated in the sentencing entry that PRC was

mandatory “up to” five years, rather than a straight five years.

{¶3} On April 25, 2011, appellant filed a “Motion for De Novo Re-Sentencing”

based on a claim of improper PRC notification. On July 21, 2011, the trial court

effectively denied the request for a de novo hearing and instead addressed appellant’s

motion via a nunc pro tunc sentencing entry, concluding in pertinent part as follows:

{¶4} “When the trial court has orally informed the defendant of post-release

control, but the post-release control language is not recorded in the judgment entry, the

proper remedy is to add the omitted post-release control language by using an entry

nunc pro tunc after the hearing. ***. The Transcript of Proceedings reflects that the

Defendant was properly notified of his PRC term and conditions during the sentencing

hearing, a fact not adequately reflected by the judgment entry. Under these facts, a de Muskingum County, Case No. CT2011-0038 3

novo sentencing hearing is inappropriate and a nunc pro tunc entry is the proper

remedy to correct such a clerical error.” Judgment Entry at 1-2.

{¶5} On August 16, 2011, appellant filed a notice of appeal. He herein raises

the following sole Assignment of Error:

{¶6} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT

APPELLANT A DE NOVO SENTENCING HEARING TO CORRECT A VOID

SENTENCE.”

I.

{¶7} In his sole Assignment of Error, appellant contends the trial court erred in

declining to grant him a de novo sentencing hearing upon his motion. We disagree.

{¶8} R.C. 2929.191 reads in pertinent part as follows:

{¶9} “(A)(1) If, prior to July 11, 2006, a court imposed a sentence including a

prison term of a type described in division (B)(2)(c) of section 2929.19 of the Revised

Code and failed to notify the offender pursuant to that division that the offender will be

supervised under section 2967.28 of the Revised Code after the offender leaves prison

or to include a statement to that effect in the judgment of conviction entered on the

journal or in the sentence pursuant to division (D)(1) of section 2929.14 of the Revised

Code, at any time before the offender is released from imprisonment under that term

and at a hearing conducted in accordance with division (C) of this section, the court

may prepare and issue a correction to the judgment of conviction that includes in the

judgment of conviction the statement that the offender will be supervised under section

2967.28 of the Revised Code after the offender leaves prison. Muskingum County, Case No. CT2011-0038 4

{¶10} “If, prior to July 11, 2006, a court imposed a sentence including a prison

term of a type described in division (B)(2)(d) of section 2929.19 of the Revised Code

and failed to notify the offender pursuant to that division that the offender may be

supervised under section 2967.28 of the Revised Code after the offender leaves prison

or to include a statement to that effect in the judgment of conviction entered on the

journal or in the sentence pursuant to division (D)(2) of section 2929.14 of the Revised

Code, at any time before the offender is released from imprisonment under that term

and at a hearing conducted in accordance with division (C) of this section, the court

may prepare and issue a correction to the judgment of conviction that includes in the

judgment of conviction the statement that the offender may be supervised under

section 2967.28 of the Revised Code after the offender leaves prison.

{¶11} “(2) If a court prepares and issues a correction to a judgment of conviction

as described in division (A)(1) of this section before the offender is released from

imprisonment under the prison term the court imposed prior to July 11, 2006, the court

shall place upon the journal of the court an entry nunc pro tunc to record the correction

to the judgment of conviction and shall provide a copy of the entry to the offender or, if

the offender is not physically present at the hearing, shall send a copy of the entry to

the department of rehabilitation and correction for delivery to the offender. If the court

sends a copy of the entry to the department, the department promptly shall deliver a

copy of the entry to the offender. The court's placement upon the journal of the entry

nunc pro tunc before the offender is released from imprisonment under the term shall

be considered, and shall have the same effect, as if the court at the time of original

sentencing had included the statement in the sentence and the judgment of conviction Muskingum County, Case No. CT2011-0038 5

entered on the journal and had notified the offender that the offender will be so

supervised regarding a sentence including a prison term of a type described in division

(B)(2)(c) of section 2929.19 of the Revised Code or that the offender may be so

supervised regarding a sentence including a prison term of a type described in division

(B)(2)(d) of that section.

{¶12} “(B)(1) If, prior to July 11, 2006, a court imposed a sentence including a

prison term and failed to notify the offender pursuant to division (B)(2)(e) of section

2929.19 of the Revised Code regarding the possibility of the parole board imposing a

prison term for a violation of supervision or a condition of post-release control or to

include in the judgment of conviction entered on the journal a statement to that effect,

at any time before the offender is released from imprisonment under that term and at a

hearing conducted in accordance with division (C) of this section, the court may

prepare and issue a correction to the judgment of conviction that includes in the

judgment of conviction the statement that if a period of supervision is imposed following

the offender's release from prison, as described in division (B)(2)(c) or (d) of section

2929.19 of the Revised Code, and if the offender violates that supervision or a

condition of post-release control imposed under division (B) of section 2967.131 of the

Revised Code the parole board may impose as part of the sentence a prison term of up

to one-half of the stated prison term originally imposed upon the offender.

{¶13} “(2) If the court prepares and issues a correction to a judgment of

conviction as described in division (B)(1) of this section before the offender is released

from imprisonment under the term, the court shall place upon the journal of the court

an entry nunc pro tunc to record the correction to the judgment of conviction and shall Muskingum County, Case No. CT2011-0038 6

provide a copy of the entry to the offender or, if the offender is not physically present at

the hearing, shall send a copy of the entry to the department of rehabilitation and

correction for delivery to the offender. If the court sends a copy of the entry to the

department, the department promptly shall deliver a copy of the entry to the offender.

The court's placement upon the journal of the entry nunc pro tunc before the offender is

released from imprisonment under the term shall be considered, and shall have the

same effect, as if the court at the time of original sentencing had included the

statement in the judgment of conviction entered on the journal and had notified the

offender pursuant to division (B)(2)(e) of section 2929.19 of the Revised Code

regarding the possibility of the parole board imposing a prison term for a violation of

supervision or a condition of post-release control.”

{¶14} “(C) On and after July 11, 2006, a court that wishes to prepare and issue a

correction to a judgment of conviction of a type described in division (A)(1) or (B)(1) of

this section shall not issue the correction until after the court has conducted a hearing

in accordance with this division. Before a court holds a hearing pursuant to this

division, the court shall provide notice of the date, time, place, and purpose of the

hearing to the offender who is the subject of the hearing, the prosecuting attorney of

the county, and the department of rehabilitation and correction. The offender has the

right to be physically present at the hearing, except that, upon the court's own motion

or the motion of the offender or the prosecuting attorney, the court may permit the

offender to appear at the hearing by video conferencing equipment if available and

compatible. An appearance by video conferencing equipment pursuant to this division

has the same force and effect as if the offender were physically present at the hearing. Muskingum County, Case No. CT2011-0038 7

At the hearing, the offender and the prosecuting attorney may make a statement as to

whether the court should issue a correction to the judgment of conviction.”

{¶15} However, “[a]lthough the legislature intended R.C. 2929.191 to apply to

defendants sentenced prior to July 11, 2006, in State v. Singleton, 124 Ohio St.3d,

2009-Ohio-6434, the Ohio Supreme Court rejected such retrospective application.”

State v. Adams, Mahoning App.No. 11 MA 65, 2012-Ohio-432, ¶ 3. The Ohio Supreme

Court has held, subsequent to Singleton, that if a defendant is under a sentence in

which post-release control was not properly rendered, only the offending portion of the

sentence dealing with post-release control is subject to review and correction. See

State v. Fischer, 128 Ohio St.3d 92, 942 N.E.2d 332, 2010–Ohio–6238. The new

sentencing hearing to which the offender is entitled is limited to the issue of post-

release control. Id. In light of Fischer, we have rejected the argument that a PRC

resentencing proceeding requires a de novo hearing. See State v. McPherson, Licking

10–CA–99, 2011–Ohio–1020. Regardless of whether common law or R.C. 2929.191

applies, the mere lack of PRC notice never entitles a defendant to a “full de novo

sentencing hearing.” See State v. Oweis, Delaware App.No. 11CAA060050, 2012-

Ohio-443, ¶ 13, citing State v. Davis, Washington App.No. 10 CA 9, 2011–Ohio–6776,

¶ 8.

{¶16} In the case sub judice, appellant acknowledges the rule set forth in

Fischer; however, appellant directs us to the decision of the Eighth District Court of

Appeals in State v. Harris, Cuyahoga App.No. 95097, 2011-Ohio-1072, wherein the

court, distinguishing between “misstat[ing] the nature or the length of postrelease

control” and “fail[ing] to advise *** of the consequences of violating postrelease Muskingum County, Case No. CT2011-0038 8

control,” held that a remand for a de novo hearing was warranted as described in State

v. Singleton, supra. See Harris at ¶ 13. In the case sub judice, appellant maintains that

the trial court, in the sentencing entry, did not provide him with a proper PRC term

notification and did not properly advise him of the consequences of violating PRC, thus

mandating a de novo resentencing. See Appellant’s Brief at 4. However, we are aware

of no adoption by this Court of the rationale of Harris in this regard, and we decline to

do so now.

{¶17} Furthermore, subsequent to the date of oral arguments in the case sub

judice, the Ohio Supreme Court decided the case of State v. Qualls, --- N.E.2d ---,

2012-Ohio-1111, holding as follows at the syllabus: “When a defendant is notified

about postrelease control at the sentencing hearing, but notification is inadvertently

omitted from the sentencing entry, the omission can be corrected with a nunc pro tunc

entry and the defendant is not entitled to a new sentencing hearing.”

{¶18} Appellant herein, like Mr. Qualls, was sentenced prior to July 11, 2006

(see Qualls at ¶2), and we find the aforecited law from the Ohio Supreme Court is

directly on point with the circumstances of the case sub judice. The trial court therefore

correctly remedied the concerns in appellant’s motion for de novo resentencing by

issuing a nunc pro tunc entry. Muskingum County, Case No. CT2011-0038 9

{¶19} Appellant's sole Assignment of Error is overruled.

{¶20} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Muskingum County, Ohio, is hereby affirmed.

By: Wise, J.

Delaney, P. J., and

Farmer, J., concur.

___________________________________

JUDGES JWW/d 0307 Muskingum County, Case No. CT2011-0038 10

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

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : ARYON MAXWELL : : Defendant-Appellant : Case No. CT2011-0038

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.

Costs assessed to appellant.

JUDGES