[Cite as State v. Hall, 2011-Ohio-6441.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96791
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JEROME HALL
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-459174
BEFORE: Kilbane, A.J., Blackmon, J., and Keough, J.
RELEASED AND JOURNALIZED: December 15, 2011
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Katherine Mullin
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, Jerome Hall, Jr., appeals from the journal entry of
sentencing, issued nunc pro tunc, to correct the sentence imposed for defendant’s 2005
conviction for drug trafficking. For the reasons set forth below, we affirm.
{¶ 2} On November 19, 2004, defendant and codefendant, Lonzelle Booker, were
indicted pursuant to a nine-count indictment for drug trafficking. Counts 1, 2 and 3
charged them with trafficking in and possession of more than 100 grams of crack cocaine
and set forth major drug offender specifications and one- and three-year firearm
specifications. The remaining counts charged defendant with possession of and
trafficking in more than 25 but less than 100 grams of crack cocaine, possession of
criminal tools, and having a weapon while under disability. See State v. Hall, Cuyahoga
App. No. 87059, 2007-Ohio-414 (“Hall I”).
{¶ 3} On July 18, 2005, Count 1 was amended to reduce the amount of cocaine to
“an amount greater than 25 but less than 100 grams” and the major drug offender and
one-year firearm specifications were deleted. As is relevant to this matter, the trial court
advised defendant about postrelease control stating,
“Upon release from prison, you will be subject to 5 years of post-release
control by the Adult Parole Authority. Any misbehavior while under their
supervision can lead to further incarceration.”
{¶ 4} Defendant then entered a guilty plea to the charge as amended, and the
remaining charges were nolled.
{¶ 5} At the August 25, 2005 sentencing hearing, the trial court advised defendant
as follows:
“I remind you upon release you will be subject to five years of postrelease
control. If you violate while under the postrelease, you can receive up to
half the sentence I give you.”
{¶ 6} Defendant was sentenced to a total of 12 years of imprisonment, to be
served consecutive to a term imposed in a federal matter.1 The trial court additionally
ordered that:
“Postrelease control is part of this sentence for the maximum time allowed
for the above felony(s) under R.C. 2967.28.”
1
United States v. Hall (July 18, 2005), N.D. Ohio Case No. 1:05-CR-18.
{¶ 7} Defendant appealed and maintained, inter alia, that his guilty plea was not
knowingly and voluntarily entered. This court affirmed. See Hall I.
{¶ 8} On December 21, 2007, defendant filed a motion to withdraw his guilty
plea. The trial court denied the motion without a hearing on January 3, 2008, and this
court affirmed. See State v. Hall, Cuyahoga App. No. 90972, 2008-Ohio-5351 (“Hall
II”).
{¶ 9} On June 2, 2008, Hall filed a federal habeas petition, and maintained, inter
alia, that his guilty plea was not knowing and voluntary. The petition was denied. Hall
v. Bradshaw (Nov. 24, 2009), N.D. Ohio Case No. 1:08-CV-1330.
{¶ 10} On May 1, 2009, defendant filed a petition to vacate his sentence, arguing
that the sentence imposed on August 25, 2005, was void because the trial court did not
properly inform him that his sentence included an extension by the parole board for
violations of the terms of postrelease control, and that may include a residential sanction,
including a prison term of up to nine months.
{¶ 11} On April 14, 2011, outside of the presence of defendant, the trial court
issued a nunc pro tunc sentencing entry that stated, in relevant part, as follows:
“4) This court properly informed Hall of his mandatory term of 5 years
of postrelease control and the consequences for violating postrelease
control;
“5) The sentencing entry, by oversight, only indicated a term of
postrelease control for the maximum time allowed;
“6) Under Crim.R. 36, this Court has the authority to impose a nunc pro
tunc journal entry to reflect the true sentence imposed in open court.
The Court now issues the following nunc pro tunc entry. * * * Hall is
required to serve, upon his release from prison, a mandatory term of 5-years
of postrelease control for drug trafficking as amended in Count 1.
Violations of the conditions of postrelease control may result in more
restrictive sanctions including reincarceration for up to one-half of the
sentence imposed. * * *”
{¶ 12} Defendant now appeals and assigns three errors for our review. For the
sake of convenience, we shall begin with the second assignment of error.
{¶ 13} Defendant’s second assignment of error states:
“Defendant was denied due process of law when the court used a nunc pro
tunc entry to add postrelease control which was not imposed at the original
sentencing.”
{¶ 14} In this assignment of error, defendant complains that the trial court was
required to hold a de novo sentencing hearing for the proper imposition of postrelease
control.
{¶ 15} Pursuant to R.C. 2929.19(B), at the time of sentencing, a trial court must:
“(e) Notify the offender that * * * the parole board may impose a prison
term, as part of the sentence, of up to one-half of the stated prison term
originally imposed upon the offender.”
{¶ 16} Nonetheless, a trial judge is authorized to correct, by nunc pro tunc entry
and without holding a new sentencing hearing, a mistake in sentencing order, where the
notification at the sentencing hearing is proper. State ex rel. Womack v. Marsh, 128
Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010. In that case, the trial court notified
Womack, at his sentencing hearing, that he was subject to a mandatory term of three years
of postrelease control. R.C. 2967.28(B)(3). In the journal entry of the sentence,
however, the court mistakenly referred to the robbery convictions as felonies of the first
degree and imposed a mandatory postrelease-control term of five years instead of three
years. The defendant filed a motion for resentencing, but the trial court issued a nunc
pro tunc order to reflect the information provided at the sentencing hearing. The
Womack court stated:
“No new sentencing hearing is required, because the trial court’s failure to
include the postrelease-control term in the original sentencing entry was
manifestly a clerical error. It appears that this error arose from the trial
court’s mistaken designation of Womack’s robbery convictions as felonies
of the first degree instead of felonies of the third degree.
R.C. 2911.02(A)(3) and 2911.02(B). Although trial courts generally lack
authority to reconsider their own valid final judgments in criminal cases,
they retain continuing jurisdiction to correct clerical errors in judgments by
nunc pro tunc entry to reflect what the court actually decided. * * *.
Because appellant was notified of the proper term of postrelease control at
his sentencing hearing and the error was merely clerical in nature, Judge
Marsh was authorized to correct the mistake by nunc pro tunc entry without
holding a new sentencing hearing.”
{¶ 17} This court reached a similar conclusion in State v. Tucker, Cuyahoga App.
No. 95289, 2011-Ohio-1368. The Tucker court stated:
“Tucker argues the trial court improperly entered a nunc pro tunc entry to
journalize his sentence. However, because the trial court properly notified
Tucker of the terms of postrelease control at his 2002 sentencing hearing,
the error was merely clerical in nature and the trial court was authorized to
correct the mistake by nunc pro tunc entry.”
{¶ 18} In this matter, a review of the trial transcript indicates that defendant was
informed at the August 25, 2005 sentencing hearing that a five-year term of postrelease
control was going to be imposed, and he was advised that in the event he violated the
terms of postrelease control, he could receive up to half the sentence imposed. The
journal entry failed to contain the terms mentioned in open court. The court’s failure to
include the postrelease-control term in the original sentencing entry was manifestly a
clerical error. The nunc pro tunc sentencing journal entry of April 14, 2011, reflects the
truth of what actually happened, and was proper under Womack.
{¶ 19} The second assignment of error is without merit.
{¶ 20} The first assignment of error states:
“Defendant was denied due process of law when the court proceeded to
enter a [resentencing] order without the personal presence of defendant.”
{¶ 21} Defendant next maintains that the trial court violated Crim.R. 43 by issuing
a resentencing in his absence.
{¶ 22} An accused has a fundamental right to be present at all stages of his
criminal trial. Section 10, Article I, Ohio Constitution; Crim.R. 43(A). The right to be
present is not abridged, however, where the trial court issues a nunc pro tunc order to
correct a clerical error so that the journal entry would accurately reflect the original
sentence and does not modify the sentence. State v. Spears, Cuyahoga App. No. 94089,
2010-Ohio-2229.
{¶ 23} In this matter, we note that postrelease control was announced during the
sentencing hearing but omitted from the original journal entry for the sentence. The
nunc pro tunc journal entry of the sentence merely corrected that clerical error. We
therefore conclude that Crim.R. 43 was not violated.
{¶ 24} The first assignment of error is without merit.
{¶ 25} Defendant’s third assignment of error states:
“Defendant’s right not to be placed twice in jeopardy was violated when the
court increased his sentence by adding a period of postrelease control.”
{¶ 26} Within this assignment of error, defendant asserts that the nunc pro tunc
sentencing order violates the prohibition against double jeopardy because it includes a
new provision as to postrelease control.
{¶ 27} In Spears, this court rejected this argument and stated:
“Spears argues the court could not correct the sentencing journal entry
without his presence in open court and that the modification of the
sentencing journal entry violated his rights against double jeopardy.
Specifically, Spears claims that the nunc pro tunc entry effectively
‘increases’ his sentence and, therefore, constitutes double jeopardy. We
agree that, once a defendant has started to serve a sentence, a court may not
modify or increase it, as that constitutes double jeopardy. See State v. Bell
(1990), 70 Ohio App.3d 765, 773, 592 N.E.2d 848. However, we do not
find that the court’s nunc pro tunc entry modified or increased Spears’s
sentence.”
{¶ 28} The third assignment of error is therefore without merit.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
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.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
PATRICIA A. BLACKMON, J., and
KATHLEEN ANN KEOUGH, J., CONCUR