State v. McFarland

2025 Ohio 3287

Opinion

[Cite as State v. McFarland, 2025-Ohio-3287.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 114930 v. :

ALVERY MCFARLAND, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED AND REMANDED RELEASED AND JOURNALIZED: September 11, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-689328-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Krystal Hyojong Lee, Assistant Prosecuting Attorney, for appellee.

Law Office of Anthony J. Richardson II, LLC, and Anthony J. Richardson II, for appellant.

EILEEN A. GALLAGHER, A.J.:

Alvery McFarland (“McFarland”) appeals his sentence after pleading

guilty to attempted felonious assault. For the following reasons we affirm the trial

court’s judgment. I. Facts and Procedural History

On February 28, 2024, McFarland was indicted on one count of

felonious assault in violation of R.C. 2903.11(A)(1), a second-degree felony.

McFarland’s indictment included a notice-of-prior-conviction and a repeat-violent-

offender specification. In a journal entry, issued contemporaneously with

arraignment, the court declared McFarland indigent, assigned him defense counsel

and notified him that “any costs imposed pursuant to [R.C.] 2743.70 and 2949.091

are hereby waived.”

On November 18, 2024, the court held a hearing at which McFarland

pled guilty to an amended charge of attempted felonious assault in violation of R.C.

2923.02 and 2903.11(A)(1), which is a third-degree felony. The State dismissed the

notice-of-prior-conviction and repeat-violent-offender specification. On

December 10, 2024, the court held a sentencing hearing at which it imposed “$250

in costs [and] 36 months” in prison. Additionally, the court stated the following:

“Sir, upon your release from prison, the Ohio Parole Board will impose a period of

post-release control for a mandatory minimum of one year up to a maximum of

three years.”

On December 17, 2024, the court issued a journal entry memorializing

McFarland’s sentence as “36 day(s)” in prison and “a mandatory minimum 1 year,

up to a maximum of 3 years post release control.” On January 6, 2025, the court

issued a nunc pro tunc journal entry correcting the clerical error from 36 days to 36

months in prison. This journal entry also notified McFarland that he “will be subject to a period of post-release control of: a mandatory minimum 1 year, up to a

maximum of 3 years” as part of his sentence. Additionally, the journal entry stated

that McFarland “is ordered to pay a fine in the sum of $250.00.”

McFarland appeals and raises two assignments of error for our review.

I. The trial court failed to order a definite sentence, leaving the executive branch to act as judge.

II. The trial court imposed financial sanctions where appellant was indigent and could not afford them.

II. Law and Argument

a. Felony Sentencing — Standard of Review

R.C. 2953.08(G)(2) provides, in part, that when reviewing felony

sentences, if this court “clearly and convincingly” finds that (1) “the record does not

support the sentencing court’s findings under . . . (C)(4) of section 2929.14 . . .” or

(2) “the sentence is otherwise contrary to law,” then we may conclude that the court

erred in sentencing. See also State v. Marcum, 2016-Ohio-1002. In State v. Jones,

2020-Ohio-6729, ¶ 39, the Ohio Supreme Court clarified that R.C. 2953.08(G)(2)

“does not provide a basis for an appellate court to modify or vacate a sentence based

on its view that the sentence is not supported by the record under R.C. 2929.11 and

2929.12.”

A sentence is not clearly and convincingly contrary to law “where the

trial court considers the purposes and principles of sentencing under R.C. 2929.11

as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly applies postrelease control, and sentences a defendant within the permissible

statutory range.” State v. A.H., 2013-Ohio-2525, ¶ 10 (8th Dist.).

b. Postrelease Control

In McFarland’s first assignment of error, he argues that “the trial court

failed to impose a definite term of postrelease control . . .” instead leaving “the

executive branch to act as judge,” which violates the separation-of-powers doctrine.

In State v. Bates, 2022-Ohio-475, the Ohio Supreme Court explained

that postrelease control is a part of certain prison sentences.

R.C. 2967.28(B) requires that prison sentences for certain felonies include a mandatory term of postrelease control to be imposed by the parole board after the offender is released from imprisonment. R.C. 2967.28(B) and (C) identify the length of the term of postrelease control supervision for each degree of felony. At the sentencing hearing, the court must notify the offender of this mandatory supervision under R.C. 2967.28(B).

Id. at ¶ 10. See also State v. Jordan, 2004-Ohio-6085, ¶ 23, overruled on other

grounds (“Because a trial court has a statutory duty to provide notice of postrelease

control at the sentencing hearing, any sentence imposed without such notification

is contrary to law.”).

It is undisputed that McFarland’s conviction for attempted felonious

assault is a third-degree felony offense of violence. See R.C. 2901.01(A)(9)(a).

Therefore, pursuant to R.C. 2967.28(B)(4), the period of postrelease control

applicable to McFarland is: “For a felony of third degree that is an offense of violence

and is not a felony sex offense, up to three years, but not less than one year.” i. Separation of Powers

To support his argument that postrelease control violates the

separation-of-powers doctrine, McFarland cites State ex rel. Bray v. Russell, 89

Ohio St.3d 132 (2000). In Bray, the Ohio Supreme Court held that R.C. 2967.11,

also known as the “bad-time” statute, was unconstitutional because it violated the

separation-of-powers doctrine. Id. at 134, 136. Specifically, the Bray Court held as

follows: “R.C. 2967.11(C), (D), and (E) enable the executive branch to prosecute an

inmate for a crime, to determine whether a crime has been committed, and to

impose a sentence for that crime. This is no less than the executive branch’s acting

as judge, prosecutor, and jury. R.C. 2967.11 intrudes well beyond the defined role of

the executive branch as set forth in our Constitution.” Id. at 135.

In Woods v. Telb, 89 Ohio St.3d 504 (2000), superseded by statute on

other grounds, the Ohio Supreme Court held that the “the post-release control

statute is clearly distinguishable” from the “bad-time” statute. Id. at 512. The

Woods Court detailed how “post-release control is part of the original judicially

imposed sentence,” and the “powers delegated to the executive branch” concern the

“discretionary ability to impose post-release control sanctions . . .” rather than the

term or period of postrelease control itself. Id. The Ohio Supreme Court held that

“because the [executive branch’s] discretion in managing post-release control does

not impede the function of the judicial branch, we find no violation of the separation

of powers doctrine.” Id. In following Woods, we find that Ohio’s postrelease control statutory

scheme does not violate the separation-of-powers doctrine.

ii. Period of Postrelease Control

McFarland also argues in this assignment of error that “the trial court

failed to sentence him fully when it did not impose a definite postrelease control

sanction, but rather simply stated the statutory range . . . .” McFarland further

argues that “this range is a guideline from which the trial court can decide the

sanction and necessary period of postrelease control as part of the sentence.”

McFarland cites no Ohio law that takes this position, and upon review, we find that

there is no basis in the law for this argument.

R.C. 2967.28, which is titled, in part, “Period of post-release control

for certain offenders,” states that certain prison sentences “shall include a

requirement that the offender be subject to a period of post-release control . . . .”

This court has held that “[p]ostrelease control is a period of supervision of an

offender by the Adult Parole Authority after release from prison that includes one or

more postrelease control sanctions imposed by the parole board pursuant to R.C.

2967.28.” State v. Parker, 2018-Ohio-3677, ¶ 19 (8th Dist.).

Pursuant to R.C. 2967.28(B)(4), McFarland is subject to a period of

postrelease control of “up to three years, but not less than one year.” This is precisely

what the court notified him of at his sentencing hearing.

Upon review, we find that the court properly applied postrelease

control at McFarland’s sentencing hearing when it notified him that he was subject to a one-to-three-year period of postrelease control upon his release from prison.

Accordingly, McFarland’s first assignment of error is overruled.

c. Court Costs

In his second assignment of error, McFarland argues that “there is

basis for reversal and remand because the trial court imposed financial sanctions

under R.C. 2929.18, despite the record supporting that [he] was indigent and could

not afford the fine.” At McFarland’s sentencing hearing, the court included “$250

in costs” as part of McFarland’s sentence. However, the court’s sentencing journal

entry states that McFarland “is ordered to pay a fine in the sum of $250.00.” We

note that the court did not reference R.C. 2929.18, which is the statute that governs

financial sanctions as part of felony sentences, at the sentencing hearing or in its

accompanying journal entries.

The State argues on appeal that “it is clear from the record that the

trial court imposed $250 in court costs at the sentencing hearing” and the journal

entry’s reference to a “fine” was a clerical error, which can be corrected through a

nunc pro tunc entry. See State v. Thompson, 2025-Ohio-1547, ¶ 19 (8th Dist.); State

v. Richard, 2024-Ohio-3194, ¶ 11 (8th Dist.) (A clerical “mistake can be corrected by

the trial court through a nunc pro tunc entry to reflect what actually occurred in

open court.”). We agree with the State.

Having determined that the court-imposed costs, rather than a fine,

as part of McFarland’s sentence, we turn to the issue of whether the court may

impose costs against an indigent defendant. In State v. White, 2004-Ohio-5989, ¶ 8, the Ohio Supreme Court held

that “R.C. 2947.23 does not prohibit a court from assessing costs against an indigent

defendant; rather it requires a court to assess costs against all convicted

defendants.”1 (Emphasis in original.) See also State v. Brock, 2017-Ohio-97, ¶ 17

(8th Dist.) (A “sentencing court must include in the sentence the costs of prosecution

and render a judgment against the defendant for costs, even if the defendant is

indigent.”). Trial courts have the discretion to waive court costs for indigent

defendants “if the defendant moves for a waiver of costs.” State v. Jones, 2020-

Ohio-1273, ¶ 29 (8th Dist.). In this case, McFarland did not move the trial court to

waive the costs imposed at his sentencing hearing.

Upon review, we find that the court properly imposed $250 in costs

as part of McFarland’s sentence. Accordingly, McFarland’s second assignment of

error is overruled.

Judgment affirmed. Case remanded to the trial court to issue a nunc

pro tunc entry imposing $250 in court costs, rather than a fine, to reflect what

actually occurred in open court.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

1 R.C. 2947.23 refers to “the costs of prosecution,” which has “often been used

interchangeably with ‘court costs.”’ State v. Jones, 2020-Ohio-1273, ¶ 30 (8th Dist.). In this case, the court’s journal entry finding McFarland indigent waived costs under R.C. 2743.70, which governs “[a]dditional court costs and bail for reparations fund,” and R.C. 2949.091, which governs “[a]dditional court costs or bail.” It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________________________ EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

MICHAEL JOHN RYAN, J., and ANITA LASTER MAYS, J., CONCUR