State v. Paris

2016 Ohio 8175

• Court: Ohio Court of Appeals
• Decided: December 15, 2016
• Docket: 15 MA 0045
• Status: Published

Opinion

[Cite as State v. Paris, 2016-Ohio-8175.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 15 MA 0045 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) RONALD PARIS ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2014 CR 740

JUDGMENT: Convictions and Sentence Affirmed. Postrelease Control Vacated. Remanded.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Ross T. Smith Huntington Bank Building 26 Market Street, Suite 610 Youngstown, Ohio 44503

JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: December 15, 2016 [Cite as State v. Paris, 2016-Ohio-8175.] WAITE, J.

{¶1} Appellant Ronald Paris appeals a March 9, 2015 Belmont County

Common Pleas Court sentencing entry. Appellant argues that the trial court stated at

the sentencing hearing that he “could be” subject to a three-year period of

postrelease control. Appellant argues that this contradicts the mandatory three-year

period of postrelease control stated in the court’s sentencing entry. The state

confesses judgment. Pursuant to State v. Ericson, 7th Dist. No. 09 MA 109, 2010-

Ohio-4315, Appellant’s argument has merit and a limited remand is granted only for

purposes of correcting the postrelease control portion of his sentence.

Factual and Procedural History

{¶2} Appellant was indicted on one count of intimidation, a felony of the third

degree in violation of R.C. 2912.03(A), (B). On January 23, 2015, Appellant entered

into a Crim.R. 11 plea agreement. On March 9, 2015, the trial court sentenced

Appellant to thirty months of incarceration with credit for 198 days served. At the

sentencing hearing, the trial court indicated that Appellant “could be subject to a

period of postrelease control for up to three years.” (Emphasis added.) (Sentencing

Hrg. Tr., p. 8.) In its sentencing entry, the trial court stated that the sentence was to

be: “followed by an [sic] mandatory period of post-release control of three (3) years.”

(Emphasis added.) (3/9/15 Sentencing Entry, p. 1.)

ASSIGNMENT OF ERROR -2-

THE TRIAL COURT FAILED TO PROPERLY ADVISE THE

DEFENDANT THAT HE WAS SUBJECT TO MANDATORY POST-

RELEASE CONTROL AT SENTENCING.

{¶3} Appellant argues that the trial court entered inconsistent judgments as

the court referred to the imposition of postrelease control as discretionary at his

hearing and mandatory within its entry. Citing to Ericson, supra, Appellant argues

that the use of “could be subject to” when warning of mandatory postrelease control

is erroneous. The state confesses judgment.

{¶4} In relevant part, R.C. 2967.28(C) provides that “[a]ny sentence to a

prison term for a felony of the third, fourth, or fifth degree that is not subject to

division (B)(1) or (3) of this section shall include a requirement that the offender be

subject to a period of post-release control of up to three years after the offender's

release from imprisonment.” A trial court’s statement that an offender could be

subject to a three-year period of postrelease control is erroneous when the offender

is subject to a mandatory imposition of postrelease control. Ericson at ¶ 40.

{¶5} As Appellant pleaded guilty to a third-degree felony, he was subject to a

mandatory three-year period of postrelease control. At the sentencing hearing, the

trial court indicated that Appellant could be subject to a three-year period of

postrelease control. Pursuant to Ericson, this statement was erroneous.

{¶6} As to Appellant’s remedy,

Effective July 11, 2006, R.C. 2929.191 establishes a procedure to

remedy a sentence that fails to properly impose a term of postrelease -3-

control. It applies to offenders who have not yet been released from

prison and who fall into at least one of three categories: those who did

not receive notice at the sentencing hearing that they would be subject

to postrelease control, those who did not receive notice that the parole

board could impose a prison term for a violation of postrelease control,

or those who did not have both of these statutorily mandated notices

incorporated into their sentencing entries. R.C. 2929.191(A) and (B).

For those offenders, R.C. 2929.191 provides that trial courts may, after

conducting a hearing with notice to the offender, the prosecuting

attorney, and the Department of Rehabilitation and Correction, correct

an original judgment of conviction by placing on the journal of the court

a nunc pro tunc entry that includes a statement that the offender will be

supervised under R.C. 2967.28 after the offender leaves prison and that

the parole board may impose a prison term of up to one-half of the

stated prison term originally imposed if the offender violates postrelease

control.

Ericson at ¶ 43, citing State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434 at

¶ 23. The R.C. 2929.191 hearing solely applies to the erroneous imposition of

postrelease control “as the General Assembly apparently intended to ‘leave

undisturbed the sanctions imposed upon the offender that are unaffected by the

court's failure to properly impose postrelease control at the original sentencing.’ ”

Ericson at ¶ 44. -4-

{¶7} Accordingly, as Appellant was not properly notified of the mandatory

nature of his postrelease control, his sole assignment of error has merit and is

sustained.

Conclusion

{¶8} Appellant argues that the trial court erroneously referred to his

mandatory three-year period of postrelease control as discretionary at the sentencing

hearing. The state confesses judgment. Appellant’s convictions and sentence are

affirmed. However, we vacate the postrelease control portion of Appellant’s sentence

and remand the matter for a limited R.C. 2929.131 hearing to correct the postrelease

control portion of Appellant’s sentence.

Donofrio, P.J., concurs.

DeGenaro, J., concurs.