[Cite as State v. Griffie,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24102

v. : T.C. NO. 02CR2943

JAMES GRIFFIE, JR. : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

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OPINION rd Rendered on the 23 day of December , 2011.

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JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JOE CLOUD, Atty. Reg. No. 0040301, 3973 Dayton-Xenia Road, Beavercreek, Ohio 45432 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} Defendant-appellant James Griffie, Jr. appeals a decision of the trial

court regarding the imposition of mandatory post-release control after a

re-sentencing hearing in Case No. 2002-CR-2943. Said hearing was held on May 2

18, 2010. The trial court issued an amended termination entry on May 26, 2010,

which stated that Griffie was subject to a mandatory five year term of post-release

control upon his “release from imprisonment.”

{¶ 2} Griffie filed a timely notice of appeal with this Court on June 18, 2010.

I

{¶ 3} On September 11, 2002, Griffie was indicted for two counts of

kidnapping and two counts of having weapons while under disability. All of the

counts were accompanied by firearm specifications. Griffie ultimately pled guilty to

two counts of kidnapping with the attendant firearm specifications. On November

27, 2002, the trial court sentenced Griffie to five years in prison for each kidnapping

count, to be served concurrently. The trial court merged the firearm specifications

for an additional three years in prison, to be served consecutively to the prison term

for kidnapping, for an aggregate sentence of eight years. The record establishes

that the trial court failed to properly inform Griffie at the sentencing hearing that he

would be subject to mandatory post-release control. The trial court also improperly

denied Griffie’s placement in a shock incarceration program and intensive program

prison in the termination entry.

{¶ 4} On January 23, 2004, the trial court issued an amended termination

entry to correct court costs. Additionally, the trial court failed to correct the

information regarding Griffie’s mandatory post-release control as well as its

improper denial of his placement in shock incarceration or intensive program prison

in the amended entry.

{¶ 5} On May 18, 2010, the trial court held a hearing in order to correctly 3

inform Griffie of his mandatory post-release control sanction. The trial court issued

an amended entry on May 26, 2010, which correctly notified Griffie of his

mandatory post-release control sanction. The State concedes, however, that the

trial court failed to correct its improper denial of Griffie’s placement in shock

incarceration or intensive program prison in the amended entry.

{¶ 6} It is from this judgment that Griffie now appeals.

II

{¶ 7} Griffie’s first assignment of error is as follows:

{¶ 8} “THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY

INFORM THE DEFENDANT OF HIS POST RELEASE CONTROL RIGHTS.”

{¶ 9} In the instant case, Case No. 2002 CR 2943, Griffie asserts that his

expected release date is June 25, 2010. Griffie points out, however, that he was

also sentenced by the trial court in Case No. 1993 CR 1939 to a term of five to

fifteen years. Griffie asserts that his expected release date in that case is October

23, 2012. In his first assignment, Griffie contends that the trial court erred when it

imposed his mandatory post-release control and made it effective after his release

from imprisonment, and not the date his sentence was to be completed in Case No

2002 CR 2943.

{¶ 10} At the sentencing hearing on May 18, 2010, the following exchange

occurred:

{¶ 11} “The Court: Okay. Sir, you understand that by this sentencing, the

re-sentencing that we have to do is just related, as he said, to the post-release

control. It does not change your out date. You’ll receive credit for all the jail time 4

and the prison time. So, nothing changes except for the fact of –

{¶ 12} “Griffie: So, I’ll have PRC?

{¶ 13} “Defense Counsel: Right.

{¶ 14} “The Court: Right.

{¶ 15} “Griffie: That’s effective at the end of this sentence, right?

{¶ 16} “Defense Counsel: Yes.

{¶ 17} “Griffie: Okay. It would be effective the 26th of next month?

{¶ 18} “Defense Counsel: Whatever your out date is.

{¶ 19} “Griffie: Okay.

{¶ 20} “The Court: Yes. I don’t have your out date in front of me, sir, but

whatever out date they have given you, that’s when this takes place.

{¶ 21} “Griffie: Thank you.”

{¶ 22} Based on the foregoing exchange, Griffie asserts that the trial court

essentially advised him that his five-year term of post-release control in Case No.

2002 CR 2943 would begin when his prison sentence was completed in that case

despite the fact that he would still be serving a prison sentence in another,

unrelated case. Griffie further asserts that because his prison sentence in Case

No. 2002 CR 2943 has been completed, the trial court is now without jurisdiction to

hold a re-sentencing hearing in order to correct his post-release control sentence.

State v. Arnold,

,

. As a result, Griffie argues

that he cannot be subject to a term of post-release control in Case No. 2002 CR

2943.

Griffie’s argument, although inventive, is not supported by the record and

is wholly without merit. 5

{¶ 23} Initially, we note that the trial court specifically advised Griffie and his

counsel at the end of the re-sentencing hearing as follows:

{¶ 24} “The Court: Okay. I explained to you, sir, that following your release

from prison you will be required to serve a period of five years’ post-release control

under the supervision of the Parole Board. That’s where we went a little bit astray,

my fault.”

{¶ 25} Accordingly, the record establishes that Griffie was put on explicit

notice at the re-sentencing hearing that his mandatory term of post-release control

would begin upon his release from prison, not upon the completion of his prison

sentence in Case No. 2002 CR 2943. The court also explained the consequences

of violating post-release control provisions or committing additional violations of the

law. The record further establishes that the trial court was unaware of and had no

information regarding Griffie’s conviction and sentence in Case No. 1993 CR 1939.

{¶ 26} Moreover, a court speaks through its journal entries. Hairston v.

Seidner,

,

. The amended termination entry

specifically states in pertinent part:

{¶ 27} “The Court notifies the defendant that, as part of his sentence, the

defendant WILL be supervised by the Parole Board for a period of FIVE (5) years

Post-Release Control after the defendant’s release from prison.”

{¶ 28} The language used by the trial court in its amended termination entry

echoes the language used by the General Assembly in R.C. 2967.28(B) regarding

the imposition of post-release control after a conviction for a felony of the first

degree. R.C. 2967.28(B) states in pertinent part: 6

{¶ 29} “Each sentence to a prison term for a felony of the first degree *** 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. ***.”

{¶ 30} Accordingly, at the re-sentencing hearing on May 18, 2010, Griffie

was correctly advised by the trial court that he would be subject to a mandatory

five-year term of post-release control upon his release from prison. Following the

hearing, the trial court issued an amended termination entry which correctly

reflected that Griffie would be subject to mandatory post-release control upon his

release from prison. The record does not support Griffie’s claim that he was

entitled to post-release control credit prior to his ultimate release from prison in

another, unrelated case. Thus, the trial court did not err when it advised Griffie of

his post-release control rights in Case No. 2002 CR 2943.

{¶ 31} Griffie’s first assignment of error is overruled.

III

{¶ 32} Griffie’s second and final assignment of error is as follows:

{¶ 33} “THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT

FAILED TO INCLUDE ITS FINDINGS IN THE AMENDED TERMINATION ENTRY

DENYING THE DEFENDANT SHOCK PAROLE, INTENSIVE PROGRAM PRISON,

AND TRANSITIONAL CONTROL.”

{¶ 34} In his final assignment, Griffie argues that the trial court erred when it

disapproved of his placement in a shock incarceration program and intensive 7

prison program in the termination entry without first making specific findings

required by R.C. 2929.19(D). In its appellee’s brief, the State concedes that the

trial court erred when it failed to make any findings on the record or in the amended

termination entry regarding its decision to disapprove of shock incarceration

program and intensive prison program for Griffie.

{¶ 35} R.C. 2929.19(D) provides that:

{¶ 36} “The sentencing court, pursuant to division (K) of section 2929.14 of

the Revised Code, may recommend placement of the offender in a program of

shock incarceration under section 5120.031 of the Revised Code or an intensive

program prison under section 5120.032 of the Revised Code, disapprove

placement of the offender in a program or prison of that nature, or make no

recommendation. If the court recommends or disapproves placement, it shall

make a finding that gives its reasons for its recommendation or disapproval.”

{¶ 37} In State v. Howard,

,

, we held

that a trial court errs when it disapproves of shock incarceration or intensive

program prison without making certain findings required by R.C. 2929.14. We also

held that it is premature for a trial court, at sentencing, to disapprove transitional

control.

{¶ 38} However, with respect to the trial court’s error in having disapproved

of shock incarceration and intensive program prison in this case, this error is

necessarily harmless, because Griffie, as a first-degree felon, is not eligible for

either program. R.C. 5120.031(A)(4) and R.C. 5120.032(B)(2)(a). See also State

v. Porcher, Montgomery App. No. 24058,

. 8

{¶ 39} Lastly, we note that the trial court erred in prematurely disapproving

Griffie for transitional control in the amended termination entry. This error,

however, can be cured by remanding this cause to the trial court for the limited

purpose of amending the termination entry to delete the disapproval of Griffie for

transitional control. See State v. Howard,

; State v. Porcher,

.

{¶ 40} Griffie’s second assignment of error is sustained to the limited extent

indicated; otherwise, it is overruled as harmless error.

IV

{¶ 41} Griffie’s first assignment of error having been overruled, and his

second assignment of error having been sustained to a limited extent, that part of

the trial court’s judgment entry disapproving Griffie for transitional control is

reversed, and this cause is remanded for the limited purpose of deleting that

provision from the judgment entry. In all other respects, the judgment of the trial

court is affirmed.

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GRADY, P.J. and FAIN, J., concur.

Copies mailed to:

Johnna M. Shia Joe Cloud Hon. Dennis Adkins