State v. Provens

2011 Ohio 5197

• Court: Ohio Court of Appeals
• Decided: September 26, 2011
• Docket: 2011CA00089
• Status: Published

Opinion

[Cite as State v. Provens, 2011-Ohio-5197.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : William B. Hoffman, P.J. : Julie A. Edwards, J. Plaintiff-Appellee : Patricia A. Delaney, J. : -vs- : Case No. 2011CA00089 : : ARMONE PROVENS : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Stark County Court of Common Pleas Case No. 2006CR0193

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: September 26, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO CRAIG M. JAQUITH Prosecuting Attorney Office of the Ohio Public Stark County, Ohio Defender’s Office 250 East Broad Street, Suite 1400 BY: KATHLEEN O. TATARSKY Columbus, Ohio 43215 Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 [Cite as State v. Provens, 2011-Ohio-5197.]

Edwards, J.

{¶1} Defendant-appellant, Armone Provens, appeals from the March 16, 2011,

Judgment Entry of the Stark County Court of Common Pleas overruling his Motion to

Vacate and Correct Sentence. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On March 17, 2006, the Stark County Grand Jury indicted appellant on

one count of murder in violation of R.C. 2903.02(B), a felony of the first degree, one

count of felonious assault in violation of R.C. 2903.11(A)(1) and/or (A)(2), a felony of the

second degree, and one count of having weapons while under disability in violation of

R.C. 2923.13(A)(2), a felony of the third degree. The charges of murder and felonious

assault were accompanied by firearm specifications. At his arraignment on March 24,

2006, appellant entered a plea of not guilty to the charges.

{¶3} Appellant’s trial commenced on July 17, 2006. During a break in the trial,

appellant pleaded guilty to the crime of having weapons while under disability. At the

conclusion of the evidence and the end of deliberations, the jury, on July 20, 2006,

found appellant guilty of the lesser included offense of reckless homicide. The jury

found that appellant had a firearm on or about his person. The trial court declared a

mistrial on the charges of murder and felonious assault.

{¶4} Pursuant to a Judgment Entry filed on July 25, 2006, appellant was

sentenced to five years in prison for reckless homicide and five years in prison for

having weapons while under disability, to be served consecutively. A three-year

sentence was imposed for the gun specification. Appellant was sentenced to an

aggregate sentence of thirteen (13) years. In addition, because appellant was on post- Stark County App. Case No. 2011CA00089 3

release control in Stark Case No. 1998CR0124(B) at the time of the shooting, an

additional three (3) years and fifty-four days was tacked on to his sentence. In all,

appellant received a prison sentence of sixteen (16) years and fifty-four (54) days.

{¶5} Appellant appealed his conviction and sentence. Pursuant to an Opinion

filed on April 14, 2008 in State v. Provens, Stark App. No. 2007CA00034, this Court

affirmed the judgment of the trial court.

{¶6} Subsequently, appellant filed a Motion to Reopen his direct appeal

pursuant to App. R. 26(B). Such motion was denied as memorialized in an Opinion filed

on August 4, 2008 in State v. Provens, Stark App. No. 2007-CA-00034, 2008-Ohio-

3933.

{¶7} Thereafter, on September 2, 2010, appellant filed a Motion to Vacate and

Correct Sentence. Appellant in his motion, alleged that his sentencing entry in Stark

Case No. 1998CR0124(B) was void because, in such case, he was improperly advised

of post-release control. Appellant alleged that the trial court, in Case No.

1998CR0124(B), incorrectly stated that appellant would be subject to post-release

control for “up to five years” when “R.C. 2967.28(B) mandated that [appellant’s]

sentence include a mandatory period of post-release control of five years.” Appellant

argued that because he could not be forced to serve time for violating the void term of

post-release control in such case, the trial court in the case sub judice was required to

vacate that portion of his sentence tacking on the three (3) years and fifty-four (54) days

onto his sentence. Appellant, in his motion, also argued that the trial court’s entry in

Case No. 1998CR0124(B) failed to advise him that he faced the possibility of serving up Stark County App. Case No. 2011CA00089 4

to one-half of his original prison term as a new prison sentence if he violated the terms

of his release.

{¶8} Appellee filed a response to such motion on March 7, 2011. As

memorialized in a Judgment Entry filed on March 16, 2011, the trial court overruled

appellant’s motion.

{¶9} Appellant now raises the following assignment on appeal:

{¶10} “THE TRIAL COURT ERRED WHEN IT DENIED MR. PROVENS’

MOTION TO VACATE AND CORRECT HIS SENTENCE.”

I

{¶11} Appellant, in his sole assignment of error, argues that the trial court erred

when it denied his Motion to Vacate and Correct Sentence. We agree.

{¶12} As is stated above, appellant in his motion, alleged that his sentencing

entry in Stark Case No. 1998CR0124(B) was void because the trial court, in Case No.

1998CR0124(B), incorrectly stated that appellant would be subject to post-release

control for “up to five years” when “R.C. 2967.28(B) mandated that [appellant’s]

sentence include a mandatory period of post-release control of five years.” Appellant

argued that because he could not be forced to serve time for violating the void term of

post-release control in such case, the trial court, in the case sub judice, erred in tacking

on three (3) years and fifty-four (54) days onto his sentence. Appellant, in his motion,

also argued that the trial court’s entry in Case No. 1998CR0124(B) failed to advise him

that he faced the possibility of serving up to one-half if his original prison term as a new

prison sentence if he violated the terms of his release. Stark County App. Case No. 2011CA00089 5

{¶13} R.C. 2929.14(F)(1) provides that if a court imposes a prison term for a

felony, the sentence shall include a requirement that the offender be subject to a period

of post-release control after the offender's release from imprisonment. R.C.

2929.19(B)(3) requires that the sentencing court notify the offender that the offender will

be supervised under R.C. 2967.28 after the offender leaves prison. The Supreme Court

of Ohio has interpreted these provisions as requiring a trial court to give notice of post-

release control both at the sentencing hearing and by incorporating it into the

sentencing entry. State v. Jordan, 104 Ohio St.3d 21, 2004–Ohio–6085, 817 N.E.2d

864, paragraph one of the syllabus. The trial court must do so regardless of whether the

term of post-release control is mandatory or discretionary. Id. at paragraph two of the

syllabus; Hernandez v. Kelly, 108 Ohio St.3d 395, 2006–Ohio–126, 844 N.E.2d 301, ¶

18.

{¶14} In State v. Jordan the Court further held that “[w]hen a trial court fails to

notify an offender about post-release control at the sentencing hearing, but incorporates

that notice into its journal entry imposing sentence, it fails to comply with the mandatory

provisions of R.C. 2929.19(B)(3)(c) and (d), and, therefore, the sentence must be

vacated and the matter remanded to the trial court for resentencing.” Id. at paragraph

two of the syllabus.

{¶15} “[T]he effect of vacating the sentence places the parties in the same

position as they were had there been no sentence.” State v. Bezak, 114 Ohio St.3d 94,

2007–Ohio–3250, 868 N.E.2d 961, supra at paragraph 13, citing Romito v. Maxwell

(1967), 10 Ohio St.2d 266, 267, 227 N.E.2d 223. Thus, the offender is entitled to a de

novo sentencing hearing. Id. Stark County App. Case No. 2011CA00089 6

{¶16} A trial court retains jurisdiction to correct a void sentence and is authorized

to do so when its error is apparent. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-

6085, 817 N.E.2d 864 at paragraph 23. Res Judicata does not act to bar a trial court

from correcting the error. State v. Simpkins, 117 Ohio St.3d 402, 2008–Ohio–1197, 884

N.E.2d 568, citing State v. Ramey, Franklin App. No. 06AP–245, 2006–Ohio–6429, at

paragraph 12.

{¶17} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,

syllabus, the Supreme Court of Ohio limited the nature of the de novo hearing as

follows: “2. The new sentencing hearing to which an offender is entitled under State v.

Bezak is limited to proper imposition of postrelease control. (State v. Bezak, 114 Ohio

St.3d 94, 2007–Ohio–3250, 868 N.E.2d 961, syllabus, modified).” Thus, as stated by

the Fischer court in paragraph two of the syllabus, the new sentencing hearing is limited

to the proper imposition of postrelease control.

{¶18} In the case sub judice, appellant’s sentencing entry in Case No.

1998CR0124(B) stated, in relevant part, as follows:

{¶19} “The Court has further notified the defendant that post release control is

mandatory in this case up to a maximum of five (5) years, as well as the consequences

for violating conditions of post release control imposed by the Parole Board under

Revised Code Section 2967.28. The defendant is ordered to serve as part of this

sentence any term of post release control imposed by the Parole Board, and any prison

term for violation of that post release control.”

{¶20} Appellant argues his sentence in such case was void because he was not

informed that the mandatory term was five years as opposed to “up to” five years. R.C. Stark County App. Case No. 2011CA00089 7

2967.28(B)(1). We agree with appellant's argument. The trial court failed to satisfy “our

existing precedent—that it notify the offender of the mandatory nature of the term of

post-release control and the length of that mandatory term and incorporate that

notification into its entry.” State v. Bloomer, 122 Ohio St.3d 200, 2009–Ohio–2462, 909

N.E.2d 1254, ¶ 69. As such, appellant's sentence as it relates to the imposition of any

post-release control in Case No. 1998CR0124(B) was void. See, State v. Jordan, 104

Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864; State v. Bezak, 114 Ohio St.3d 94,

2007–Ohio–3250, 868 N.E.2d 961; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-

1197, 884 N.E.2d 568. See also State v. Green, Stark App. No. 2010CA00198, 2011-

Ohio-1636, and State v. Henderson, Ashland App. No. 10-COA-012, 2011-Ohio-1791.

{¶21} In short, we find that the trial court’s entry In Stark County Case No.

1998CR0124(B) did not properly advise appellant regarding post-release control. The

sentence in such case was void as it relates to post-release control. The trial court, in

the case sub judice, therefore, erred in imposing the three (3) years and fifty-four (54)

remaining days of post-release control time as additional prison time on appellant.

{¶22} Because the trial court in the case sub judice, therefore, erred in

overruling appellants Motion to Vacate and Correct Sentence, appellant's sole

assignment of error is sustained. Stark County App. Case No. 2011CA00089 8

{¶23} Accordingly, the judgment of the Stark County Court of Common Pleas is

reversed and this matter is remanded for resentencing.

By: Edwards, J.

Hoffman, P.J. concurs

Delaney, J. dissents

______________________________

JUDGES

JAE/d0623 Stark County App. Case No. 2011CA00089 9

Delaney, J., dissenting

I respectfully dissent from the majority opinion and would affirm the judgment of the trial

court based upon this Court’s prior decision in State v. Miller, Stark App. No.

2010CA001175, 2010-Ohio 6001.

__________________________

JUDGE PATRICIA A. DELANEY [Cite as State v. Provens, 2011-Ohio-5197.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : ARMONE PROVENS : : Defendant-Appellant : CASE NO. 2010CA00089

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

judgment of the Stark County Court of Common Pleas is reversed and remanded to the

trial court for further proceedings. Costs assessed to appellee.

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