State v. Ball

[Cite as State v. Ball, 2013-Ohio-3443.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 13-CA-17
DONTAE BALL :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case No.
12CR00554

JUDGMENT: Affirmed in part; Reversed in part; and
remanded

DATE OF JUDGMENT ENTRY: August 1, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH OSWALT ANDREW SANDERSON
CHRISTOPHER REAMER KRISTIN SCHOECK
20 S. Second Street 73 N. Sixth Street
Newark, OH 43055 Newark, OH 43055
[Cite as State v. Ball, 2013-Ohio-3443.]

Gwin, P.J.

{¶1} Appellant Dontae Ball [“Ball”] appeals from a February 26, 2013 Judgment

Entry of the Licking County Court of Common Pleas imposing sentence that included an

additional four-year prison sentence for violation of post-release control.

Facts and Procedural History

{¶2} On October 21, 1999, Ball was sentenced to a thirteen-year prison term in

Franklin County Common Pleas Case 98 CR 2033. Ball was sentenced for Aggravated

Robbery, a felony of the first degree and a consecutive three-year weapons

specification. Id. The trial court's sentencing language in 98 CR 2033 related to post-

release control stated in pertinent part, "After imposition of sentence the Court notified

the Defendant orally and in writing .... [of] the applicable periods of post-release

control..." Ball’s conviction and sentence was affirmed. State v. Ball, Ohio App. 10 Dist.

Franklin No. 99-AP-1288, 2000 WL 1357928(Sept. 21, 2000).

{¶3} Ball was released from the Ohio Department of Corrections on December

24, 2011, and placed on five years of post-release control.

{¶4} On October 19, 2012, Ball was indicted in the case at bar on three counts

of felony trafficking in drugs, one count of felony possession of drugs and a

misdemeanor offense of possession of drug paraphernalia. Forfeiture specifications

accompanied the felony counts.

{¶5} On February 11, 2012, Ball filed a pleading titled, "Defendant's motion to

dismiss post-release control sanctions." That pleading acknowledged that upon Ball's

release from prison on December 24, 2011, the Adult Parole Authority had placed Ball

on post-release control that included "several restraints on his freedom." On February
Licking County, Case No. 13-CA-17 3

13, 2013, Ball filed a supplement to his motion that included a certified copy of Ball's

sentencing entry in the Franklin County case.

{¶6} Ball appeared before the trial court on February 26, 2013, and entered

pleas of guilty to the charges and specifications contained in the indictment. After

objections by the defense and arguments of counsel, the trial court imposed an

aggregate sentence of six and a half years on the charges. This sentence included four

years of imprisonment imposed as a collateral sanction for Ball’s violation of "post-

release control."

Assignments of Error

{¶7} Ball raises two assignments of error,

{¶8} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN

SENTENCING THE DEFENDANT-APPELLANT HEREIN.

{¶9} “II. THE TRIAL COURT COMMITTED HARMFUL ERROR IN

SENTENCING THE DEFENDANT-APPELLANT TO A FOUR YEAR TERM OF

IMPRISONMENT AS A COLLATERAL SANCTION HEREIN.”

I.

{¶10} In his first assignment of error, Ball argues that the part of his sentence

that imposed post-release control was void because the Franklin County Court of

Common Pleas had failed to adequately notify him in its 1999 judgment entry of

sentencing concerning post release control. Therefore, Ball contends that the imposition

of a prison sentence for violation of post release control in the case at bar was error.
Licking County, Case No. 13-CA-17 4

{¶11} At the time of sentencing in 1999, R.C. 2929.19, the statutory subsection

expressly prescribing what a trial court must do at a sentencing hearing, provided, in

relevant part:

(c) Subject to division (B)(4) of this section, if the offender is being

sentenced for a felony of the first degree, for a felony of the second

degree, for a felony sex offense, as defined in section 2967.28 of the

Revised Code, or for a felony of the third degree that is not a felony sex

offense and in the commission of which the offender caused or threatened

to cause physical harm to a person, notify the offender that a period of

post-release control pursuant to section 2967.28 of the Revised Code will

be imposed following the offender's release from prison;

(d) Subject to division (B)(4) of this section, if the offender is being

sentenced for a felony of the third, fourth, or fifth degree that is not subject

to division (B)(3)(c) of this section, notify the offender that a period of post-

release control pursuant to section 2967.28 of the Revised Code may be

imposed following the offender's release from prison;

(e) Notify the offender that, if a period of post-release control is

imposed following the offender's release from prison, as described in

division (B)(3)(c) or (d) of this section, and if the offender violates a post-

release control sanction imposed as a component of the post-release

control including the mandatory condition described in division (A) of

section 2967.121 of the Revised Code, all of the following apply:
Licking County, Case No. 13-CA-17 5

(i) The adult parole authority or the parole board may impose a

more restrictive post-release control sanction.

(ii) The parole board may increase the duration of the post-release

control subject to a specified maximum.

(iii) The more restrictive sanction that the parole board may impose

may consist of a prison term, provided that the prison term cannot exceed

nine months and the maximum cumulative prison term so imposed for all

violations during the period of post-release control cannot exceed one-half

of the stated prison term originally imposed upon the offender.

(iv) If the violation of the sanction is a felony, the offender may be

prosecuted for the felony and, in addition to any sentence it imposes on

the offender for the new felony, the court may impose a prison term,

subject to a specified maximum, for the violation.

{¶12} In 1999, R.C. 2967.28 Post Release Control provided in relevant part,

(B) Each sentence to a prison term for a felony of the first degree,

for a felony of the second degree, for a felony sex offense, or for a felony

of the third degree that is not a felony sex offense and in the commission

of which the offender caused or threatened to cause physical harm to a

person shall include a requirement that the offender be subject to a period

of post-release control imposed by the parole board after the offender's

release from imprisonment. Unless reduced by the parole board pursuant

to division (D) of this section when authorized under that division, a period
Licking County, Case No. 13-CA-17 6

of post-release control required by this division for an offender shall be of

one of the following periods:

(1) For a felony of the first degree or for a felony sex offense, five

years;

(2) For a felony of the second degree that is not a felony sex

offense, three years;

(3) For a felony of the third degree that is not a felony sex offense

and in the commission of which the offender caused or threatened

physical harm to a person, three years.

{¶13} Ball’s 1999 conviction was aggravated robbery, a first-degree felony.

Neither party included a transcript of the 1999 Franklin County sentencing hearing in the

record before the trial court. When an appeal is filed in this court without a transcript, we

generally presume the regularity of that proceeding and affirm. State ex rel. Hoag v.

Lucas Cty. Bd. of Elections, 125 Ohio St.3d 49, 2010-Ohio-1629, 925 N.E.2d 984, ¶ 12,

citing Christy v. Summit Cty. Bd. of Elections, 77 Ohio St.3d 35, 39, 671 N.E.2d

1(1996); State ex rel. Duncan v. Portage Cty. Bd. of Elections, 115 Ohio St.3d 405,

2007-Ohio-5346, 875 N.E.2d 578, ¶ 17. Similarly, without the benefit of the transcript of

the 1999 sentencing hearing before the Franklin County Court of Common Pleas, the

trial court in the case at bar had nothing to pass upon and thus, as to whether Ball was

properly notified orally of his post release control obligation, the Licking County Court of

Common Pleas had no choice but to presume the validity of the Franklin County Court

of Common Pleas proceedings. Crane v. Perry Cty. Bd. of Elections, 107 Ohio St.3d
Licking County, Case No. 13-CA-17 7

287, 2005-Ohio-6509, 839 N.E.2d 14, ¶ 37, citing Knapp v. Edwards Laboratories, 61

Ohio St.2d 197, 199, 400 N.E.2d 384(1980).

{¶14} However, in the 1999 Franklin County sentencing entry, the only mention

of post release control was

After the imposition of sentence, the Court notified the Defendant

orally and in writing of the possibility of “Bad Time” pursuant to R.C.

2929.19(B)(3)(b) and the applicable periods of post-release control

pursuant to R.C. 2929.19(B)(3)(c), (d) and (e).

{¶15} In State v. Qualls, Qualls was notified at his 2002 sentencing hearing of

his five years of post release control. 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d

718(2012), ¶¶3; 10. However, that notification was inadvertently omitted from the 2002

sentencing entry. Id., 967 N.E.2d 718.

{¶16} When Qualls filed a motion in 2010 regarding post release control, the

state realized the omission in the sentencing entry. Id. at ¶4, 967 N.E.2d 718. The state

asked the trial court to issue a nunc pro tunc entry correcting the omission by adding the

notification of post-release control. Id., 967 N.E.2d 718.

{¶17} Qualls argued in response that because the 2002 sentencing entry did

not contain notice of post-release control, his sentence was void and he was entitled to

a de novo sentencing hearing. Id. at ¶ 5, 967 N.E.2d 718. The trial court issued a nunc

pro tunc sentencing entry adding the post release control notification. The trial court

reasoned that because Qualls admitted he had been orally advised that he was subject

to post release control at his 2002 sentencing hearing, he was not entitled to a new

sentencing hearing. Id. at ¶6, 967 N.E.2d 718. The Fourth District Court of appeals
Licking County, Case No. 13-CA-17 8

affirmed but certified its decision to the Ohio Supreme Court as being in conflict with a

decision from the Sixth District. The issue presented to the Supreme Court was, ““If a

defendant is notified about post-release control at the sentencing hearing, but that

notification is inadvertently omitted from the sentencing entry, can that omission be

corrected with a nunc pro tunc entry?” Id. at ¶ 9, 967 N.E.2d 718.

{¶18} In addressing this issue, the Supreme Court in Qualls noted,

For purposes of addressing the certified issue, we recognize two

important principles that our post-release-control precedents have

emphasized. One principle is that unless a sentencing entry that did not

include notification of the imposition of post-release control is corrected

before the defendant completed the prison term for the offense for which

post-release control was to be imposed, post-release control cannot be

imposed. Hernandez, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d

301, at ¶ 28–30; compare Watkins v. Collins, 111 Ohio St.3d 425, 2006-

Ohio-5082, 857 N.E.2d 78, ¶ 48–51 (when a sentencing entry made some

reference to post-release control, any deficiencies in the entry could have

been raised on appeal, and post-release control can be imposed upon the

defendant's release from prison). (Emphasis added).

Qualls, 131 Ohio St.3d at ¶16, 967 N.E.2d 718.

{¶19} The second principle the Qualls Court found important is that “a trial court

must provide statutorily compliant notification to a defendant regarding post-release

control at the time of sentencing, including notifying the defendant of the details of the
Licking County, Case No. 13-CA-17 9

post-release control and the consequences of violating post-release control.” Qualls,

131 Ohio St.3d at ¶ 18, 959 N.E.2d 532.

{¶20} The Ohio Supreme Court held in Qualls,

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.

Id. at syllabus.

{¶21} In reaching this decision, the Court noted,

But, when the notification of post-release control was properly given

at the sentencing hearing, the essential purpose of notice has been

fulfilled and there is no need for a new sentencing hearing to remedy the

flaw. The original sentencing entry can be corrected to reflect what

actually took place at the sentencing hearing, through a nunc pro tunc

entry, as long as the correction is accomplished prior to the defendant's

completion of his prison term. (Emphasis added).

Qualls, 131 Ohio St.3d at ¶24, 967 N.E.2d 718. See, State v. Jordan, 104 Ohio St.3d

21, 2004-Ohio-6085, 817 N.E.2d 864, ¶27 (“When 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.

292919(B)(3)(c) and (d), and, therefore, the sentence must be vacated and the matter

remanded to the trial court for resentencing”).
Licking County, Case No. 13-CA-17 10

{¶22} In Qualls, the trial court failed to include any reference to post-release

control in its sentencing entry. In the case at bar, the Franklin County Court of Common

Pleas specifically referred to post release control and the applicable statutory section in

its sentencing entry.

{¶23} Of relevance to this appeal, the Tenth District Franklin County Court of

Appeals has construed the language contained in Ball’s 1999 judgment entry, “After the

imposition of sentence, the Court notified the Defendant, orally and in writing, of the

applicable periods of post-release control pursuant to R.C. 2929.19(B)(3)(c), (d) and

(e).” State v. Darks, 10th Dist. Franklin No. 12AP-578, 2013-Ohio-578, ¶3. In Darks the

Court found,

Appellant also contends that the post-release control portion of his

sentence is void because post-release control was not properly

incorporated into the sentencing entry. We disagree. This court has

concluded, in rejecting similar arguments, that post-release control may be

properly imposed when such “applicable periods” language in the trial

court's sentencing entry is combined with other written or oral notification

of the imposition of post-release control. State v. Myers, 10th Dist. No.

11AP–909, 2012–Ohio 2733, ¶ 11; State v. Townsend, 10th Dist. No.

10AP–983, 2011–Ohio–5056, ¶ 7–14 (analyzing cases from this court that

have considered notifications with sentencing entries that contain

“applicable periods” language); State v. Holloman, 10th Dist. No. 11AP–

454, 2011–Ohio–6138, ¶ 11. We have also recognized that, “where a

sentencing entry incorporates post-release control as part of the sentence,
Licking County, Case No. 13-CA-17 11

claims that such language was ‘inartfully phrased’ are non-jurisdictional

and concern, at most, voidable error that should be raised on direct

appeal.” Surella v. Ohio Adult Parole Auth., 10th Dist. No. 11AP–499,

2011– Ohio– 6833, ¶ 23.

Appellant also argues that the sentencing entry was deficient

because it does not recite the consequences of violating post-release

control as stated by the trial court at the sentencing hearing. However, the

entry specifically states that appellant was notified of post-release control,

pursuant to R.C. 2929.19(B)(3)(e), which sets forth the consequences of

violating post-release control. Regardless, appellant cites no authority—

and we find none—for the proposition that post-release control is void

where the sentencing entry does not contain a verbatim recitation notifying

appellant of the consequences of violating post-release control. See State

v. Dedonno, 8th Dist. No. 94732, 2010–Ohio–6361, ¶ 12 (“no court has

held the failure to state in the journal entry the consequences of violating

postrelease control results in a void sentence”).

Darks, ¶¶ 12, 13. This Court has taken a similar position. In State v. Tucker, 5th Dist.

Stark No. 2007CA00306, 2008-Ohio-1067, the appellant argued that the trial court had

failed to advise him at his 1999 sentencing hearing of mandatory post release control.

Id. at ¶14. The trial court did provide written post release control notification in its

sentencing entry. Id. at ¶17. This Court held,

The trial court in the case sub judice, via the combination of its

December 1998 plea hearing and January 1999 sentencing hearing
Licking County, Case No. 13-CA-17 12

colloquies, substantially complied with the statutory requirement to notify

appellant of his PRC obligation and did not deprive appellant of due

process.

Id. at ¶30.

{¶24} In State v. Murray, 6th Dist. No. L–10–1059, 2012–Ohio–4996, ¶ 24, 979

N.E.2d 831, the Sixth District stated that a simple reference to the applicable statutes is

sufficient to give an offender the required notice that the court authorized a post release

control sanction. In that case, because the appellant failed to file a transcript of the

sentencing hearing, the court found the appellant was properly notified of post release

control at sentencing. Id. at ¶ 25. The court then found that the sentencing judgment

entry containing the language “Defendant given notice of appellate rights under R.C.

2953.08 and post release control notice under R.C. 2929.19(B)(3) and R.C. 2967.28”

was sufficient to advise the appellant of the post release control sanction. Id. at ¶ 25.

{¶25} Applying the foregoing, we find the language in Ball’s 1999 sentencing

entry, combined with the presumption of regularity with which we must accord the oral

notification at Ball’s sentencing hearing, was sufficient to give appellant notice of the

post release control sanction. Therefore, the trial court in the present case did not err

when it imposed a sanction for Ball's violation of his post release-control condition

imposed in the prior criminal action.

{¶26} Ball’s first assignment of error is overruled.

II.

{¶27} In his second assignment of error, Ball argues that the imposition of a

four-year prison sentence for violating post release control was error.
Licking County, Case No. 13-CA-17 13

{¶28} In the case at bar, the trial court referred to the Ohio Department of

Corrections to establish that Ball was released from prison in the Franklin County case

on December 24, 2011. (T. Feb. 26, 2013 at 22). No objection was made to the trial

court’s reference to the Ohio Department of Corrections material. No objection was

made that the date of Ball’s release was inaccurate.

{¶29} The party’s agree that R.C. 2929.141 governs a prison term for a

defendant’s violation of post release control. That statute provides, "The maximum

prison term for the violation shall be the greater of twelve months or the period of post-

release control for the earlier felony minus any time the person has spent under post-

release control for the earlier felony."

{¶30} In the case at bar, the trial court imposed a four-year period of

incarceration for the post release control violation. (T. Feb. 26, 2013 at 23). The party’s

agree that this was in error because the trial court did not account for the time that Ball

had spent under post release control.

{¶31} Accordingly, Ball’s second assignment of error is sustained and this case

is remanded to the trial court to determine the correct amount of time that Ball had spent

under post-release control. The trial court will then reduce the sentence imposed for

Ball’s violation of post release control in accordance with R.C.2929.191(A)(1).
Licking County, Case No. 13-CA-17 14

{¶32} For the forgoing reasons, the judgment of the Licking County Court of

Common Pleas is affirmed in part and reversed in part, and this case is remanded for

proceedings in accordance with our opinion and the law.

By Gwin, P.J.,

Farmer, J., and

Baldwin, J., concur

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. SHEILA G. FARMER

_________________________________
HON. CRAIG R. BALDWIN

WSG:clw 0725
[Cite as State v. Ball, 2013-Ohio-3443.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
DONTAE BALL :
:
:
Defendant-Appellant : CASE NO. 13-CA-17

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

the Licking County Court of Common Pleas is affirmed in part and reversed in part, and

this case is remanded for proceedings in accordance with our opinion and the law.

Costs divided equally between the parties.

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. SHEILA G. FARMER

_________________________________
HON. CRAIG R. BALDWIN