State v. Halsey

[Cite as State v. Halsey, 2016-Ohio-7990.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :
CASE NO. CA2016-01-001
Plaintiff-Appellant, :
OPINION
: 12/5/2016
- vs -
:

WILLIAM D. HALSEY, :

Defendant-Appellee. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2009-03-0526

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellant

Repper, Pagan, Cook Ltd., Christopher Pagan, 1501 First Avenue, Middletown, Ohio 45044,
for defendant-appellee

M. POWELL, P.J.

{¶ 1} Plaintiff-appellant, the state of Ohio, appeals a decision of the Butler County

Court of Common Pleas denying its motion to issue a nunc pro tunc sentencing entry

reflecting that defendant-appellee, William D. Halsey, is a Tier III sex offender.

{¶ 2} Halsey was initially indicted for rape. He subsequently entered a guilty plea to a

reduced charge of sexual battery. During the sentencing hearing, Halsey was properly
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advised by the trial judge, pursuant to R.C. 2950.03(A)(2), that he would be classified as a

Tier III sex offender and would be required to register every 90 days for the rest of his life.

Halsey signed an Explanation of Duties to Register as a Sex Offender or Child Victim

Offender and was provided a copy as required by R.C. 2950.03(B)(1)(a), (3)(a). The trial

court ordered that Halsey be subject to Tier III sex offender supervision, one year of intensive

probation supervision, and two additional years of basic supervision. However, the

sentencing entry that was subsequently journalized made no mention of Halsey's Tier III sex

offender classification. The Explanation of Duties to Register as a Sex Offender or Child

Victim Offender signed by Halsey was neither filed with the clerk of courts nor included in the

case file.

{¶ 3} Halsey successfully completed the terms of his probation and his case was

terminated in 2012. However, Halsey continued to register with the Butler County Sheriff's

Office as a Tier III sex offender as ordered by the trial court at the sentencing hearing.

{¶ 4} In 2014, Halsey moved the trial court to vacate the sex offender classification

portion of his sentence, arguing that the absence of a sex offender classification in the

sentencing entry rendered the classification void. Halsey further argued that the termination

of his case divested the trial court of jurisdiction to impose any further sanction upon him.

The state opposed Halsey's motion. After a hearing, the trial court denied Halsey's motion

without explanation.

{¶ 5} Halsey appealed to this court. We upheld the trial court's denial of Halsey's

motion, reasoning that

the October 29, 2009 sentencing entry makes no mention of
[Halsey's] Tier III sex offender classification. As a result, the trial
court did not err in denying [Halsey's] motion to vacate his Tier III
sex offender classification as there was nothing for the trial court
to vacate.

State v. Halsey, 12th Dist. Butler No. CA2014-10-211, 2015-Ohio-3405, ¶ 14 (Halsey I).
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{¶ 6} Evidently, at some point, the state discovered the Explanation of Duties to

Register as a Sex Offender or Child Victim Offender form that had been signed by Halsey at

his original sentencing hearing but that had not been journalized. The record shows that

prior to filing its brief, the state filed a motion with this court to supplement the record with the

form. We granted the state's motion to supplement the record.

{¶ 7} Following this court's opinion in Halsey I, the state moved the trial court to issue

a nunc pro tunc sentencing entry to include Halsey's classification as a Tier III sex offender.

Halsey opposed the motion. On December 3, 2015, the trial court denied the state's motion

on the grounds that the original sentencing entry was silent with regard to Halsey's sex

offender classification, as opposed to being merely incorrect, and that Halsey's community

control sanction had been successfully terminated.

{¶ 8} The state appeals, raising one assignment of error:

{¶ 9} THE TRIAL COURT ERRED IN DENYING THE STATE'S MOTION TO ISSUE

A NUNC PRO TUNC JUDGMENT OF CONVICTION ENTRY.

{¶ 10} This appeal raises the question of whether the omission of a Tier III sex

offender classification from a sentencing entry may be corrected by a nunc pro tunc entry

after the offender has completed the journalized sentence. The state argues that because

Halsey was properly advised by the trial court of his Tier III sex offender classification at the

sentencing hearing, the failure of the original sentencing entry to include the classification

was a clerical error which may be corrected by a nunc pro tunc entry pursuant to Crim. R. 36.

{¶ 11} Typically, clerical mistakes in judgment entries may be corrected by a nunc pro

tunc entry at any time. In this regard Crim.R. 36 provides, "Clerical mistakes in judgments,

orders, or other parts of the record, and errors in the record arising from oversight or

omission, may be corrected by the court at any time." We have observed that "the purpose

of a nunc pro tunc entry is to have the judgment of the court reflect its true action." State v.
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Barnes, 12th Dist. Warren No. CA2014-03-049, 2015-Ohio-651, ¶ 32.

{¶ 12} Pursuant to R.C. 2929.19(B)(3)(a)(ii), classification of a criminal defendant as a

Tier III sex offender must be included in the sentencing entry:

The court shall include in the offender's sentence a statement
that the offender is a tier III sex offender/child-victim offender,
and the court shall comply with the requirements of section
2950.03 of the Revised Code if * * * [t]he offender is being
sentenced for a sexually oriented offense that the offender
committed on or after January 1, 1997, and the offender is a tier
III sex offender/child-victim offender relative to that offense.

(Emphasis added.)

{¶ 13} Several Ohio appellate districts have held that R.C. 2929.19(B)(3) requires

inclusion of a Tier III sex offender classification in a sentencing entry and that its omission

renders the sentence deficient. See, e.g., State v. Dalton, 8th Dist. Cuyahoga No. 99661,

2013-Ohio-5127, ¶ 11 ("R.C. 2929.19[B][3][a] requires a trial court to include in an offender's

sentence a statement that the offender is a Tier III sex offender"); and State v. Morgan, 7th

Dist. Mahoning No. 13 MA 126, 2014-Ohio-2625, ¶ 20 ("[T]the language of R.C.

2929.19[B][3] requires the tier classification to be contained in the sentencing judgment

entry"). Additionally, a sentencing court's oral advisement of a Tier III sex offender

classification at the sentencing hearing does not satisfy R.C. 2929.19(B)(3). See Morgan at

¶ 20; State v. Kase, 187 Ohio App.3d 590, 2010-Ohio-2688, ¶ 2 (7th Dist.); and State v.

Straley, 4th Dist. Highland No. 12CA3, 2013-Ohio-3334, ¶ 17.1

{¶ 14} These cases make clear that the failure to include a Tier III sex offender

classification in the sentencing entry renders the entry deficient, notwithstanding an oral

advisement of the classification at the sentencing hearing.

1. We note that earlier decisions, such as Kase, refer to R.C. 2929.19(B)(4), and not R.C. 2929.19(B)(3). R.C.
2929.19(B)(4)(a) is the prior version of the statute and R.C. 2929.19(B)(3)(a) is the current version of the statute.
The language is identical in both versions.
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{¶ 15} Relying on Crim.R. 36 and Morgan and Dalton, the state argues that a trial

court has jurisdiction to issue a nunc pro tunc entry to correct omission of a Tier III sex

offender classification. The state also cites State v. Francys, 8th Dist. Cuyahoga Nos.

101069 thru 101071, 2014-Ohio-3597, and State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-

5636, for the general proposition that a trial court retains jurisdiction under Crim.R. 36 to

correct clerical errors in judgment entries "at any time." While Francys and Raber support

the proposition advanced by the state, they must be read in conjunction with other decisions

of the Ohio Supreme Court, discussed below, addressing whether that jurisdiction extends

beyond the completion of the journalized sentence.

{¶ 16} In both Dalton and Morgan, the appellate court remanded the case for the trial

court to issue a nunc pro tunc entry to correct the omission of the Tier III sex offender

classification in the sentencing entry. In both cases, the offender had been advised of his

classification during the sentencing hearing. However, the state's argument is an extension

of Dalton and Morgan, as neither case addressed whether a trial court's jurisdiction to correct

clerical errors in judgment entries extends beyond the completion of the journalized

sentence. Dalton and Morgan both involved defendants who were sentenced to years-long

prison terms and where the issue of the omission of the Tier III sex offender classification

was raised on direct appeal of the conviction. Presumably, both defendants were in prison

serving their sentences at the time the appellate court remanded the matter to include the

Tier III sex offender classification in a nunc pro tunc sentencing entry. Neither case

specifically holds that the jurisdiction to correct clerical errors pursuant to Crim.R. 36 is

unlimited or extends beyond completion of the journalized sentence.

{¶ 17} The Ohio Supreme Court has detailed the various circumstances under which a

trial court may review the sentence of a criminal defendant:

First, when a sentence is subject to direct review, it may be
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modified; second, when the prison-sanction portion of a
sentence that also includes a void sanction has not been
completely served, the void sanction may be modified; and third,
when the entirety of a prison sanction has been served, the
defendant's expectation in finality in his sentence becomes
paramount, and his sentence for that crime may no longer be
modified.

State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 18.

{¶ 18} Clearly, a Tier III sex offender classification pursuant to the Adam Walsh Act

("AWA") amendments is punitive and therefore part of the "sentence" referred to in Holdcroft.

State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, ¶ 16 ("Following the enactment of

S.B. 10, all doubt has been removed: R.C. Chapter 2950 is punitive").

{¶ 19} The state cites State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, and

State v. Hodges, 8th Dist. Cuyahoga No. 101145, 2014-Ohio-4690, asserting that the

punitive nature of an AWA sex offender classification does not restrict the jurisdiction of a

trial court to correct an omission in the sentencing entry. Bonnell and Hodges both involved

a failure of the trial court to make the R.C. 2929.14(C) consecutive sentence findings. The

state argues that like an AWA sex offender classification, consecutive sentences are also

punitive. However, the issue here is not whether errors in sentencing entries touching upon

punitive facets of the sentence may be corrected, but whether they may be corrected after

completion of the journalized sentence. Neither Bonnell nor Hodges addresses that issue

and neither case involved defendants who had completed the imposed prison sentence at

the time their cases were remanded.

{¶ 20} Cases involving the failure to include postrelease control in sentencing entries

are instructive.

{¶ 21} In Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, Hernandez was

sentenced to a prison term. Hernandez was not notified of postrelease control at the

sentencing hearing, and the sentencing entry made no reference to postrelease control.
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Hernandez completed his prison term and the adult parole authority placed him on 5 years

postrelease control. Hernandez violated the terms of his postrelease control and the parole

authority sentenced him to a term of imprisonment. Hernandez filed a petition for habeas

corpus claiming that his incarceration was illegal. In granting the writ the Ohio Supreme

Court stated,

It is axiomatic that "[a] court of record speaks only through its
journal entries." * * * Here, the trial court's sentencing entry
specified only Hernandez's seven-year sentence, which he
completed in February 2005. Because his only journalized
sentence has now expired, habeas corpus is an appropriate
remedy.

(Citations omitted.) Id. at ¶ 30.

{¶ 22} Subsequently, while referencing to Hernandez in a later opinion, the supreme

court stated that "unless a sentencing entry that did not include notification of the imposition

of postrelease control is corrected before the defendant completed the prison term for the

offense for which postrelease control was to be imposed, postrelease control cannot be

imposed." State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶ 16. The court further

explained,

[W]hen the notification of postrelease 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.

Id. at ¶ 24.

{¶ 23} Thus, the supreme court has recognized, within the context of postrelease

control, that proper notification at the sentencing hearing will not authorize correction of the

sentencing entry after the journalized sentenced has been completed, notwithstanding the "at

any time" language contained within Crim. R. 36.
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{¶ 24} We too have held that a sentencing entry which fails to include imposition of

postrelease control may not be corrected after completion of the prison term for which post-

release control was imposed:

However, postrelease control notification errors occurring at the
sentencing hearing or failure to include any notification of
postrelease control in the sentencing entry will require vacation
of postrelease control if the defendant has been released from
his original term of imprisonment. Under Qualls, this rationale
also extends to the trial court's authority to correct a sentencing
entry by issuing a nunc pro tunc entry, if the original sentencing
entry contains no mention of postrelease control.

(Citation omitted.) State v. Chasteen, 12th Dist. Butler No. CA2012-12-247, 2013-Ohio-

3573, ¶ 30.

{¶ 25} The state seeks to distinguish the postrelease control cases on the ground that

postrelease control does not commence until after an offender is released from prison,

whereas the sex offender registration duties commence upon entry of the judgment of

conviction. See R.C. 2950.07(A)(3).

{¶ 26} However, in order for a sanction to commence, it must first be imposed by the

sentencing court. A sanction is imposed by the sentencing entry, not by what is said on the

record during the sentencing hearing. Bonnell, 2014-Ohio-3177 at ¶ 29 ("a court speaks

through its journal"). Because Hasley's sentencing entry never imposed a Tier III sex

offender classification, he was never subject to the classification.

{¶ 27} The state made this same argument in Halsey I. We implicitly rejected the

argument that sex offender classification commences upon the entry of the sentence, when

we affirmed the trial court's denial of Halsey's motion to vacate his sex offender classification

on the ground there was nothing to vacate. If, as the state argues, sex offender classification

does not require judicial action to impose it, we would not have found there was no sex

offender classification to vacate.

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{¶ 28} The similarity between the imposition of postrelease control and sex offender

classification (at least regarding Tier III sex offenders) belies the state's argument that

postrelease control and Tier III sex offender classification should be subject to a different

analysis for purposes of correcting an omission in the sentencing entry.

{¶ 29} Pursuant to R.C. 2967.28(B), postrelease control is mandatory for certain felony

offenses if a prison sentence is imposed, and must be included in the sentencing entry. R.C.

2929.19(B)(2)(c) requires the sentencing court to give notice to an offender of postrelease

control at sentencing. Similarly, Tier III sex offender classification is mandatory under R.C.

2950.01(G) for those convicted of certain sexually-oriented offenses, R.C. 2950.03 requires

notification of the classification and consequent duties at the sentencing hearing, and R.C.

2929.19(B)(3)(a) requires inclusion of the Tier III sex offender classification in the sentencing

entry. It is apparent that the statutory schemes for imposition of postrelease control and Tier

III sex offender classification are substantially similar.

{¶ 30} Recently, we specifically observed that correction of postrelease control and

sex offender classification sentencing errors are to be treated similarly. State v. Metcalf, 12th

Dist. Warren No. CA2015-03-022, 2016-Ohio-4923, ¶ 20-21. Metcalf involved a defendant

who was convicted of a sexually-oriented offense giving rise to a Tier III sex offender

classification. Metcalf was not notified of the sex offender classification at the sentencing

hearing and the sentencing entry made no mention of a sex offender classification. Metcalf

was sentenced to consecutive prison terms for the sexually-oriented offense and an

unrelated postrelease control violation. The mistake was discovered after Metcalf had

completed the sentence for the sexually-oriented offense but while he remained imprisoned

on the postrelease control violation. Metcalf was brought before the sentencing court and

advised of the imposition of the Tier III sex offender classification, and a new sentencing

entry was journalized to reflect the Tier III sex offender classification. Relying upon Holdcroft,
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we reversed the imposition of the sex offender classification because Metcalf had completed

the sentence for the sexually-oriented offense by the time the sex offender classification was

imposed.2 In doing so, we noted that Holdcroft involved postrelease control, as opposed to

sex offender classification, and commented,

Although we recognize that Holdcroft involved the imposition of
postrelease control, as opposed to the sexual offender
classification at issue here, we note that the general rules and
principles relied upon by the court were not limited to the issue of
postrelease control. Rather, as previously noted, the Supreme
Court recognized that "[n]either this court's jurisprudence nor
Ohio's criminal-sentencing statutes allow a trial court to
resentence a defendant for an offense when the defendant has
already completed the prison sanction for that offense."

Metcalf at ¶ 20.

{¶ 31} Based upon the similarity in the postrelease control and Tier III sex offender

classification statutory schemes, and based upon Hernadez, Qualls, Chasteen, and Metcalf,

we find that the analysis for correction of postrelease control sentencing errors is applicable

to correction of sentencing entries omitting Tier III sex offender classification.

{¶ 32} Based upon the foregoing, we hold that the omission of a Tier III sex offender

classification in a sentencing entry renders the sex offender classification void and may not

be corrected after the defendant has completed the journalized sentence, regardless of

whether the defendant was properly notified of the Tier III sex offender classification at

sentencing.

{¶ 33} Accordingly, we affirm the trial court's denial of the state's motion to issue a

nunc pro tunc entry to include a Tier III sex offender classification for Halsey. The state's

assignment of error is overruled.

2. Metcalf involves a significant factual dissimilarity to this case in that he was not notified of his sex offender
classification at the sentencing hearing as was Halsey in this case. Therefore, we do not rely upon Metcalf as it
may relate to the jurisdiction of a trial court to issue a nunc pro tunc entry to correct the sentencing error involved
in this case. Rather, we rely upon Metcalf solely as authority for the proposition that correction of postrelease
control and Tier III sex offender classification sentencing errors be treated the same.
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{¶ 34} Judgment affirmed.

S. POWELL and HENDRICKSON, JJ., concur.

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