State v. Jones

[Cite as State v. Jones, 2019-Ohio-2377.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

AARON JONES,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 18 MA 0078

Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 06 CR 95

BEFORE:
David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.

JUDGMENT:
Affirmed.

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

Aaron Jones, Pro Se, # A511-342, 2500 S, Avon-Belden Road, Grafton, Ohio 44044,
Defendant-Appellant.
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Dated: June 10, 2019

D’APOLITO, J.

{¶1} Pro se Appellant, Aaron Jones, appeals from the July 3, 2018 nunc pro tunc
judgment of the Mahoning County Court of Common Pleas, pursuant to this court’s
remand in State v. Jones, 7th Dist. Mahoning No. 16 MA 0192, 2017-Ohio-9376,
correcting Appellant’s 20-year sentence for aggravated robbery and aggravated burglary
following a jury trial to include the statutorily mandated five-year period of postrelease
control and notifying him of the consequences should he violate postrelease control. For
the reasons stated, we affirm.

FACTS AND PROCEDURAL HISTORY

{¶2} On May 25, 2006, Appellant was convicted on two counts: aggravated
robbery, a felony of the first degree, in violation of R.C. 2911.01(A)(1) and (C); and
aggravated burglary, a felony of the first degree, in violation of R.C. 2911.11(A)(1) and
(B). On July 20, 2006, the trial court sentenced Appellant to an aggregate total of 20
years in prison.1
{¶3} Appellant filed a direct appeal with this court in which he argued that his
convictions were not supported by sufficient evidence and were against the manifest
weight of the evidence, the trial court failed to provide curative instructions following
defense objections, his speedy trial rights were violated, error occurred in various
sentencing issues, and that his counsel provided ineffective assistance. State v. Jones,
7th Dist. Mahoning No. 06 MA 109, 2008-Ohio-1541 (“Jones I”). We found no merit to
Appellant’s arguments and affirmed his conviction and sentence. Appellant filed a
delayed appeal to the Supreme Court of Ohio, which was denied. State v. Jones, 120
Ohio St.3d 1414, 2008-Ohio-6166.
{¶4} Following Appellant’s direct appeal, he has filed numerous postconviction
motions. On January 5, 2007, Appellant filed a “Petition to Vacate or Set Aside Sentence”

1. Because Appellant was sentenced after July 11, 2006, he is subject to the postrelease control correction
procedures found in R.C. 2929.191.

Case No. 18 MA 0078
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while his direct appeal was pending. In that motion, he raised sufficiency of the evidence
and speedy trial arguments. On March 27, 2008, after Jones I was released, Appellant
filed a motion for a new trial. The trial court denied that motion. No appeal was taken.
{¶5} On July 23, 2008, Appellant filed a postconviction petition to “Set Aside or
Vacate Judgment of Conviction or Sentence.” In his petition, appellant asserted a speedy
trial violation and an ineffective assistance of counsel claim. Two weeks later, Appellant
filed an identical petition. The trial court denied both petitions. No appeal was taken.
{¶6} On February 25, 2009, Appellant filed a “Motion for Acquittal” arguing that
his convictions were not supported by sufficient evidence. The trial court denied that
motion. No appeal was taken.
{¶7} On November 18, 2009, Appellant filed a “Motion for Void Judgment” in
which he argued that his indictment was defective. On December 28, 2009, Appellant
filed a postconviction petition to “Set Aside or Vacate Judgment of Conviction or
Sentence.” On January 7, 2010, Appellant filed a second postconviction petition to “Set
Aside or Vacate Judgment of Conviction or Sentence.” The trial court denied all three
motions. Appellant appealed the denial in State v. Jones, 7th Dist. Mahoning No. 10 MA
47, 2011-Ohio-1002 (“Jones II”). This court ruled that Appellant’s petition was both
successive and untimely filed and affirmed the trial court’s decision.
{¶8} On December 5, 2011, Appellant filed a “Motion to Correct Judgment and/or
Vacate and Resentence Pursuant to H.B. 86.” The trial court denied that motion.
Appellant appealed and this court affirmed in State v. Jones, 7th Dist. Mahoning No. 13
MA 53, 2014-Ohio-2592 (“Jones III”).
{¶9} On January 3, 2013, Appellant filed a “Motion for Resentencing.” On March
4, 2013, he filed a “Motion to Have Trial Transcripts at State’s Expense.” Also on March
4, 2013, he filed a “Leave to File a Delayed Motion for a New Trial.” The trial court denied
all three motions. Appellant filed two notices of appeal. The first notice related to the trial
court’s denial of his request for trial transcripts. That appeal was denied in a May 16,
2014 judgment entry (“Jones IV”). In his second notice, appellant appealed the trial
court’s denial of his January 3, 2013 and March 4, 2013 motions. This court affirmed
in State v. Jones, 7th Dist. Mahoning No. 14 MA 46, 2015-Ohio-1707 (“Jones V”).

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{¶10} On October 28, 2016, Appellant filed a “Motion for Relief for Void Sentence.”
On December 13, 2016, the trial court denied that motion. Appellant appealed and this
court affirmed in part and remanded for the sole purpose of obtaining a nunc pro tunc
entry to correct the sentencing entry because the trial court failed to notify Appellant of
the consequences of violating postrelease control within his sentencing entry. Jones,
2017-Ohio-9376 (“Jones VI”).
{¶11} On January 8, 2018, Appellant filed a “Motion to Dismiss and Discharge.”
One month later, Appellant filed a “Demand for Release Due to Wrongful Imprisonment.”
The trial court denied the motions.
{¶12} Pursuant to this court’s remand in Jones VI, on July 3, 2018, the trial court
issued a nunc pro tunc entry correcting Appellant’s sentence to include the statutorily
mandated five-year period of postrelease control and notifying him of the consequences
should he violate postrelease control. Specifically, the trial court stated the following:

Further, the term is to be followed by a MANDATORY period of post release
control of FIVE (5) years to be monitored by the Adult Parole Authority
pursuant to ORC 2967.28. If the Defendant violates that supervision or a
condition of post release control imposed under divisions (B) of Section
2967.131 of the Revised Code, 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 defendant. If Defendant violates the law or commits another
felony while on a period of post release control, an additional prison term
consisting of the maximum period of unserved time remaining on post
release control or twelve months, whichever is greater, will be imposed and
must be served consecutively to any prison sentence imposed for a new
felony committed by defendant.

(7/3/18 Nunc Pro Tunc Judgment Entry p. 2).

{¶13} Appellant filed the instant pro se appeal and raises three assignments of
error.

Case No. 18 MA 0078
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ASSIGNMENT OF ERROR NO. 1

TRIAL COURT JUDGE VIOLATED SECTION (B)(1) OF OHIO REVISED
CODE 2743.48, WHEN SHE RULED ON ACTION. THIS ACTION IS
‘CIVIL’ AND SHE HAS NO JURISDICTION.

ASSIGNMENT OF ERROR NO. 2

TRIAL COURT JUDGE VIOLATED THE MANDATES OF OHIO
SUPREME COURT MANDATES OF STATE V. CAMERON D. WILLIAMS,
2015-1478 IN NUNC PRO TUNCING THIS VOID SENTENCE.

ASSIGNMENT OF ERROR NO. 3

UNDER SEVERAL JURISDICTIONS, NUNC PRO TUNC CANNOT BE
USED TO CORRECT VOID JUDGMENTS.

{¶14} Appellant mainly asserts in his first, second, and third assignments of error
that the trial court’s initial failure to incorporate the postrelease control notifications into
his judgment entry of conviction renders his conviction void.2 Because Appellant’s
assignments are interrelated, we will address them together for ease of discussion.

“A trial court must provide proper advice to a defendant regarding
postrelease control at the time of sentencing, including notifying the
defendant of the details of the postrelease control and the consequences of
violation.” State v. Baird, 7th Dist. No. 15 MA 0155, 2016-Ohio-8211, ¶ 9,
citing State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d

2. Any other issues unrelated to Appellant’s arguments on postrelease control may not be raised. See
State v. Wells, 7th Dist. Jefferson No. 14 JE 5, 2014-Ohio-5504, ¶ 14, citing State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, ¶ 31 (Holding that the appellant “raises other errors unrelated to his arguments
on postrelease control, but the Ohio Supreme Court has made it very clear that no other issues may be
raised when making a collateral attack on a sentence based on an error in imposing postrelease control.”)
Further, we note here that Appellant’s reliance on R.C. 2743.48 is misplaced since his conviction was not
“vacated, dismissed, or reversed on appeal.” R.C. 2743.48(A)(4). Also, Appellant’s reliance on State v.
Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, is misplaced as that case did not involve the issue of
postrelease control as in the instant case, but rather held that imposing separate sentences for allied
offenses is contrary to law.

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718, ¶ 18. Further, the trial court “must include the postrelease control
advice in the sentencing entry to reflect the notification it gave at the
sentencing hearing.” Baird, at ¶ 9, citing Qualls at ¶ 19.

“‘A sentence that does not include the statutorily mandated term of
postrelease control is void, is not precluded from appellate review by
principles of res judicata, and may be reviewed at any time, on direct appeal
or by collateral attack.’” State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-
5144, 980 N.E.2d 960, ¶ 7, quoting * * * Fischer, [supra,] * * * paragraph
one of the syllabus. However, “(o)nly the offending portion of the sentence
(i.e., the erroneous postrelease control,) is subject to review and correction.”
Fischer at ¶ 27.

State v. Wells, 7th Dist. Jefferson No. 16 JE 0033, 2017-Ohio-7763, ¶ 9-10.

{¶15} When postrelease control notification was properly given at the sentencing
hearing, the failure to incorporate postrelease control in the judgment of conviction may
be corrected by a Crim.R. 36 nunc pro tunc entry at any time before the defendant has
completed his prison term. See R.C. 2929.191; Qualls, supra, at ¶ 24.
{¶16} Here, Appellant attacked the validity of the postrelease control notification
in his sentencing entry. As mentioned by this court in Jones VI, although the State
claimed that the trial court properly notified Appellant of postrelease control during the
hearing, Appellant failed to order a sentencing transcript for inclusion in the appellate
record. Thus, in the absence of a transcript, we must presume regularity of those
proceedings. Jones, 2017-Ohio-9376, ¶ 19, citing State v. Dumas, 7th Dist. Mahoning
No. 06 MA 36, 2008-Ohio-872, ¶ 14, citing State v. Johnson, 9th Dist. Lorain No.
02CA008193, 2003-Ohio-6814, ¶ 9; see also Wells, 2017-Ohio-7763, at ¶ 15.
{¶17} Presuming Appellant was properly notified regarding postrelease control at
the sentencing hearing, the record reveals the trial court failed to notify him of the
consequences of violating postrelease control in the sentencing entry. As stated, this
court remanded the matter for the sole purpose of entering a nunc pro tunc entry to correct
this error. Jones, 2017-Ohio-9376. Pursuant to our remand, the trial court issued a nunc

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pro tunc entry on July 3, 2018, correcting Appellant’s sentence to include the statutorily
mandated five-year period of postrelease control and notifying him of the consequences
should he violate postrelease control.
{¶18} Since Appellant remains in state custody, the trial court properly corrected
postrelease control pursuant to R.C. 2929.191 by way of a nunc pro tunc judgment entry.
See Qualls, supra, at ¶ 24; State v. Dardinger, 1st Dist. Hamilton No. C-160467, 2017-
Ohio-1525, ¶ 14; State v. Jones, 2d Dist. Montgomery No. 26228, 2015-Ohio-1749, ¶ 6;
State v. Sands, 11th Dist. Lake No. 2016-L-124, 2017-Ohio-5857, ¶ 9. The trial court’s
initial failure to incorporate postrelease control notification into Appellant’s judgment entry
of conviction does not render his underlying conviction void. See Fischer, supra, at ¶ 17;
State v. Rodriguez, 8th Dist. Cuyahoga No. 97025, 2012-Ohio-3352, ¶ 10.
{¶19} Appellant’s first, second, and third assignments of error are without merit.

CONCLUSION

{¶20} For the foregoing reasons, Appellant’s assignments of error are not well-
taken. Pursuant to this court’s remand in Jones VI, the nunc pro tunc judgment of the
Mahoning County Court of Common Pleas, correcting Appellant’s sentence to include the
statutorily mandated five-year period of postrelease control and notifying him of the
consequences should he violate postrelease control, is affirmed.

Waite, P.J., concurs.

Robb, J., concurs.

Case No. 18 MA 0078
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For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed
against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.

Case No. 18 MA 0078