[Cite as State v. White,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. CT2010-0053 DAVID R. WHITE, SR.

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2007-0032

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 13, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL MADDOX KYLE S. WITUCKY PROSECUTING ATTORNEY STUBBINS, WATSON, ROBERT L. SMITH & BRYAN CO., LPA ASSISTANT PROSECUTOR 59 North Fourth Street 27 North Fifth Street Post Office Box 488 Zanesville, Ohio 43701 Zanesville, Ohio 43702-0488 Muskingum County, Case No. CT2010-0053 2

Wise, J.

{¶1} Defendant-appellant David R. White, Sr. appeals re-sentencing by the

Muskingum County Court of Common Pleas.

{¶2} Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE CASE AND FACTS

{¶3} On January 24, 2007, Appellant, David R. White, Sr., was indicted by the

Muskingum County Grand Jury on three (3) counts of Rape of a child less than ten (10)

years of age, in violation of R.C. §2907.02(A)(1)(b), a first degree felony punishable by

a mandatory term of life imprisonment; and three (3) counts of Gross Sexual Imposition,

in violation of R.C. §2907.05(A)(4), felonies of the third degree.

{¶4} On March 5, 2007, Appellant appeared before the court and withdrew his

former pleas of not guilty and entered pleas of guilty to one (1) count of Rape of a child

of less than ten (10) years of age, in violation R.C. § 2907.02(A)(1)(b), a felony of the

first degree. In exchange for said plea, the State agreed to Nolle the remaining five (5)

counts of the indictment. In addition, the State agreed to recommend that Appellant

receive the mandatory life sentence required for the charge.

{¶5} The trial court accepted Appellant's guilty plea and ordered a pre-sentence

investigation be conducted prior to the imposition of a sentence.

{¶6} On April 2, 2007, Appellant appeared before the trial court for sentencing.

Prior to commencing with the sentencing hearing, the trial court found Appellant to be a

Sexual Predator pursuant to R.C. §2950.09(B). The trial court then proceeded to

sentence Appellant to serve a mandatory stated prison sentence of life in prison. In Muskingum County, Case No. CT2010-0053 3

addition, prior to concluding this hearing, the trial court advised Appellant that he would

be eligible for parole after he has served ten (10) years of his sentence.

{¶7} Appellant did not file a direct appeal of his conviction or of his sentence.

{¶8} On June 3, 2010, Appellant filed a Motion to Impose Valid Sentence,

arguing therein that the sentencing entry was void and moving the trial court to impose

a new sentence.

{¶9} By entry dated June 9, 2010, the trial court denied the motion, stating that

Appellant’s motion lacked merit "due to the fact that there is no postrelease control for a

life sentence".

{¶10} On June 17, 2010, Appellant filed a Notice of Appeal of the trial court's

entry which denied his Motion to Impose Valid Sentence. The State responded by filing

a Motion for Remand in which it requested that the matter be remanded to the trial court

with instructions to resentence Appellant. By Judgment Entry filed August 11, 2010, this

Court remanded the matter back to the trial court for the sole purpose of re-sentencing

on the issue of post-release control. (See Case No. CT2010-0029).

{¶11} On August 30, 2010, Appellant appeared before the trial court, with court-

appointed counsel, for re-sentencing pursuant to the order of this Court. At this hearing,

Appellant, through counsel, acknowledged that he understood the purpose of the

hearing; indicated that he had "no objection to his sentence”; and indicated that he was

"ready to proceed." Thereafter, the trial court notified Appellant that he was subject to

mandatory post-release control for a period of five (5) years, as well as the

consequences of violating the same. (Resentencing Hearing T. at.4). The new

sentencing Entry was docketed on September 8, 2010. Muskingum County, Case No. CT2010-0053 4

{¶12} Defendant-Appellant now appeals, assigning the following error for review:

ASSIGNMENT OF ERROR

{¶13} “I. THE TRIAL COURT ERRED AT RESENTENCING BY FAILING TO

CONDUCT A DE NOVO RESENTENCING HEARING IN ACCORDANCE WITH R.C.

§2929.19 AND BY FAILING TO CONDUCT A HEARING IN ACCORDANCE WITH R.C.

§2929.191.”

I.

{¶14} In his sole assignment of error, Appellant asserts that the trial court erred

by failing to conduct a de novo re-sentencing hearing. We disagree.

{¶15} It is the position of Appellant that pursuant to R.C. §2929.191, he should

have been given an opportunity to address the trial court at the re-sentencing hearing.

Appellant argues that because he was not given an opportunity to address the trial court

at the re-sentencing hearing, such hearing failed to conform to the statutory

requirements of R.C. §2929.191(C). Appellant argues that because such hearing was

flawed, the trial court, in effect, failed to address post-release control as required by

R.C. §2967.28. Appellant states that his sentence is therefore contrary to law because

he has not been properly sentenced.

{¶16} Upon review, we find that Appellant has been properly sentenced and that

such sentence is not contrary to law.

{¶17} Revised Code §2967.28(B) mandates:

{¶18} “Each sentence to a prison term * * * for a felony of the second degree

* * * 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.” Muskingum County, Case No. CT2010-0053 5

{¶19} Further R.C. §2929.19(B)(3)(c) and (e) state in relevant part that, at the

sentencing hearing, the trial court shall “[n]otify the offender that the offender will be

supervised under section 2967.28 of the Revised Code after the offender leaves prison”

and that “if the offender violates that supervision or a condition of postrelease control * *

* 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 on the offender.” In addition, “the imposed

postrelease-control sanctions are to be included in the judgment entry journalized by the

court.” Singleton at ¶ 11.

{¶20} In Singleton, the Supreme Court of Ohio specifically addressed the proper

application of R.C. §2929.191 in postrelease control resentencing hearings. R.C.

§2929.191 provides “a statutory remedy to correct a failure to properly impose

postrelease control.” Singleton at ¶ 23.

{¶21} For certain offenders, “R.C. 2929.191 provides that trial courts may, after

conducting a hearing with notice to the offender, the prosecuting attorney, and the

Department of Rehabilitation and Correction, correct an original judgment of conviction

by placing on the journal of the court a nunc pro tunc entry that includes [1] a statement

that the offender will be supervised under R.C. 2967.28 after the offender leaves prison

and [2] that the parole board may impose a prison term of up to one-half of the stated

prison term originally imposed if the offender violates postrelease control.” Id.

{¶22} In addition, “[t]he hearing contemplated by R.C. 2929.191(C) and the

correction contemplated by R.C. 2929.191(A) and (B) pertain only to the flawed

imposition of postrelease control. R.C. 2929.191 does not address the remainder of an

offender's sentence. Thus, the General Assembly appears to have intended to leave Muskingum County, Case No. CT2010-0053 6

undisturbed the sanctions imposed upon the offender that are unaffected by the court's

failure to properly impose postrelease control at the original sentencing.” (Emphasis

added.) Id. at ¶ 24.

{¶23} In determining when to apply R.C. 2929.191, the Supreme Court of Ohio

held that

{¶24} “[F]or sentences imposed prior to July 11, 2006 [effective date of R.C.

2929.191], in which a trial court failed to properly impose postrelease control, trial courts

shall conduct a de novo sentencing hearing in accordance with decisions of the

Supreme Court of Ohio. However, for criminal sentences imposed on and after July 11,

2006, in which a trial court failed to properly impose postrelease control, trial courts

shall apply the procedures set forth in R.C. 2929.191.” Singleton at ¶ 1. (Emphasis

added.)

{¶25} In State v. Reed, 10th Dist. No. 09AP–1164, 2010–Ohio–5819, The Tenth

District Court of Appeals considered the proper application of R.C. §2929.191 in

accordance with Singleton. Reed was originally sentenced on January 24, 2001. At that

time, the trial court failed to properly notify the appellant of post-release control. On

appeal, the appellant argued that the trial court erred by failing to conduct a de novo

resentencing hearing. The Tenth District agreed with the appellant, holding that,

pursuant to Singleton, R.C. §2929.191 “applies only to sentences imposed on or after

July 11, 2006,” and “[f]or sentences handed down prior to the effective date of R.C.

2929.191, those are to be reviewed under the prior line of cases holding that such

sentences are void and require the court to engage in a de novo resentencing.” Reed at

¶ 4, cf. State v. Fischer (Dec. 23, 2010), Sup.Ct. of Ohio No.2009–0897, overruling Muskingum County, Case No. CT2010-0053 7

Bezak. Therefore, because Reed's original sentencing date was prior to July 11, 2006,

the appellant, in Reed, was entitled to a de novo resentencing hearing.

{¶26} In the case sub judice, in contrast to Reed, we have an original sentencing

date of April 2, 2007. Therefore, as the original sentencing was after July 11, 2006,

pursuant to Singleton, R.C. §2929.191 applies. Thus, we find that Appellant was not

entitled to a de novo hearing.

{¶27} However, even though we find that Appellant was not entitled to a de novo

hearing in this case, we find that the trial court did give Appellant an opportunity to

address the trial court on the issue of whether his judgment of conviction should be

corrected:

{¶28} “Atty. Rankin: Thank you, Your Honor. I have met with Mr. White and

explained to him why we are here today for resentencing purposes. I’ve also discussed

with him in light of the recent Ohio Supreme Court decision that’s enabled the Court to

bring him back and be resentenced today, and he, too, has objections that he feels isn’t

fair, but he wasn’t sure what you wanted me to do about it.

{¶29} “Atty. Rankin: (to Appellant) So are you okay? Do you think you

understand what is going on?

{¶30} “Atty. Rankin: He has no objections to his sentence, but we’re ready to

proceed.” (Re-sentencing T. at 2-4). Muskingum County, Case No. CT2010-0053 8

{¶31} Based on the foregoing, we find Appellant’s sole assignment of error not

well-taken and hereby overrule same.

{¶32} For the foregoing reasons, the judgment of the Court of Common Pleas of

Muskingum County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.

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JUDGES JWW/d 0505 Muskingum County, Case No. CT2010-0053 9

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : DAVID R. WHITE, SR. : : Defendant-Appellant : Case No. CT2010-0053

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

judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.

Costs assessed to Appellant.

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JUDGES