State v. Oweis

2011 Ohio 1620

Opinion

[Cite as State v. Oweis, 2011-Ohio-1620.]

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. 10 CAA 08 0060 OSAMA OWEIS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas Case No. 06 CR I 11 0513

JUDGMENT: REVERSED AND REMANDED

DATE OF JUDGMENT ENTRY: March 30, 2011

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

CAROL O’BRIEN BRIAN G. JONES DELAWARE COUNTY PROSECUTOR 2211 US Highway 23 North Delaware, Ohio 43015 MARIANNE T. HEMMETER Assistant Prosecuting Attorney 140 N. Sandusky St. Delaware, Ohio 43015 [Cite as State v. Oweis, 2011-Ohio-1620.]

Delaney, J.

{¶1} Defendant-Appellant Osama Oweis appeals the July 15, 2010 Nunc Pro

Tunc Judgment Entry on Sentence issued by the Delaware County Court of Common

Pleas. Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE CASE1

{¶2} On August 10, 2007, Appellant was convicted by a jury on one count of

Aggravated Robbery, in violation of R.C. 2911.01(A)(1) and a felony of the first degree;

one count of Grand Theft, in violation of R.C. 2913.02(A)(1) and a felony of the fifth

degree; and two counts of Kidnapping, in violation of R.C. 2905.01(A)(2) and felonies of

the second degree.

{¶3} The trial court sentenced Appellant on October 1, 2007. Based on

sentencing memoranda submitted by the parties, the trial court did not sentence

Appellant on the Aggravated Robbery conviction. The trial court sentenced Appellant to

17 years in prison on the Kidnapping and Grand Theft convictions. The trial court

informed Appellant at the sentencing hearing and journalized in the sentencing entry

that as part of his sentence, postrelease control in this case was discretionary for up to

three years.

{¶4} Under R.C. 2967.28(B)(2), “[f]or a felony of the second degree that is not a

felony sex offense,” the period of post release control is mandatory for three years.

1 A statement of the underlying facts is not necessary for the disposition of this appeal. Delaware County, Case No. 10 CAA 08 0060 3

{¶5} On July 15, 2010, the trial court filed a Nunc Pro Tunc Judgment Entry on

Sentence pursuant to State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330. The

judgment entry corrected the October 1, 2007 sentencing entry as to the term of

Appellant’s postrelease control. The nunc pro tunc sentencing entry stated that

Appellant was subject to a mandatory term of postrelease control of three years. The

trial court did not conduct a resentencing hearing before issuing the judgment entry.

{¶6} It is from this decision Appellant now appeals.

{¶7} Appellant raises one Assignment of Error:

{¶8} “I. REVISED CODE 2929.191 IS UNCONSTITUTIONAL BECAUSE IT

VIOLATES DUE PROCESS LAW UNDER THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION AND ARTICLE 1 SECTION 16 OF THE OHIO

CONSTITUTION.”

I.

{¶9} Appellant argues that his due process rights were violated when the trial

court resentenced Appellant without conducting a resentencing hearing. We reject

Appellant’s arguments as to the unconstitutionality of R.C. 2929.191. However, we find

that R.C. 2929.191 provides Appellant the opportunity for a resentencing hearing

pursuant to R.C. 2929.191(C). In this case, the trial court erred in resentencing

Appellant through a nunc pro tunc judgment entry, rather than conducting a

resentencing hearing as provided in R.C. 2929.191(C).

{¶10} R.C. 2929.191 sets forth a procedure for the trial court to correct a

judgment of conviction when the trial court, either at the sentencing hearing or in the

final judgment, failed to properly notify a defendant about the requisite postrelease Delaware County, Case No. 10 CAA 08 0060 4

control. Under that statute, the trial court must conduct a hearing pursuant to R.C.

2929.191(C) before it can file a nunc pro tunc correction to the judgment of conviction.

State v. Crawley, Stark App. No. 2010 CA 00057, 2010-Ohio-5098, ¶ 68-69.

{¶11} The State concedes Appellant’s sentence cannot be corrected by the

nunc pro tunc judgment entry alone. R.C. 2929.191(C) requires the trial court to

conduct a resentencing hearing.

{¶12} Accordingly, Appellant’s sole assignment of error is sustained as to the

issue that a resentencing hearing is required in this case pursuant to R.C. 2929.191(C).

{¶13} The judgment of the trial court is reversed and the matter remanded for

resentencing.

By: Delaney, J.

Hoffman, P.J. and

Edwards, J. concur.

HON. PATRICIA A. DELANEY

HON. WILLIAM B. HOFFMAN

HON. JULIE A. EDWARDS

PAD:kgb [Cite as State v. Oweis, 2011-Ohio-1620.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : : Plaintiff-Appellee : : : JUDGMENT ENTRY -vs- : : OSAMA OWEIS : : Case No. 10 CAA 08 0060 : Defendant-Appellant :

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

judgment of the Delaware County Court of Common Pleas is reversed and remanded.

Costs assessed to Appellee.