[Cite as State v. Cvijetinovic,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99316

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ALEKSANDA CVIJETINOVIC DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-368579

BEFORE: Keough, J., Boyle, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: July 25, 2013 ATTORNEY FOR APPELLANT

Edward M. Graham 13363 Madison Avenue Lakewood, Ohio 44107

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Kristen L. Sobieski Joseph J. Ricotta Assistant Prosecuting Attorneys The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1. The purpose of an accelerated appeal is to allow the

appellate court to render a brief and conclusory opinion. Crawford v. Eastland Shopping

Mall Assn.,

,

(10th Dist. 1983); App.R. 11.1(E).

{¶2} Defendant-appellant, Aleksanda Cvijetinovic, appeals the trial court’s

decision ordering a term of postrelease control to his sentence. For the reasons that

follow, we remand the case to the trial court to enter a nunc pro tunc sentencing journal

entry to reflect the imposition of postrelease control that was ordered at the 2003

resentencing hearing.

{¶3} In 1999, following a plea, Cvijetinovic was sentenced on three separate cases.

In CR-368577, he was sentenced to “4 years consecutive to CR-368579, and concurrent

to Case No. 368578 * * *.” In CR-368578, he was ordered to serve a total prison term of

7 years — “6 years on each Counts 1 and 2, concurrent, with 1 year firearm specification

on Count 1 to run consecutive and prior to Counts 1 and 2 * * *.” And in CR-368579, he

was ordered to serve a total of twelve years in prison — “9 years on each of counts 1 and

2 (concurrent) with 3 years on gun specification on Count 1 to run consecutive and prior

to Counts 1 and 2 * * *.”

{¶4} Cvijetinovic appealed his guilty pleas and sentence. In State v. Cvijetinovic,

8th Dist. Cuyahoga No. 81534,

, this court upheld his guilty pleas, but found the trial court did not make the necessary findings to support consecutive

sentences; thus, we reversed his sentences and remanded for resentencing.

{¶5} In 2003, the trial court conducted a resentencing hearing pursuant to this

court’s order. It also considered Cvijetinovic’s motion to withdraw his guilty plea,

which it ultimately denied. At resentencing, the trial court imposed the same aggregate

prison sentence as previously ordered in 1999. The trial court again sentenced

Cvijetinovic to four years in CR-368577, to run consecutive to CR-368579 and

concurrent with CR-368578. In CR-368578, the court again sentenced Cvijetinovic to a

total prison term of seven years — “1 year on firearm specifications as to each of Counts

1 and 2 to run prior to and consecutively to 6 years on underlying charges in Counts 1 and

2, counts to run concurrently with each other.” Finally, in CR-368579, the court

reimposed the 12 year sentence — “3 years on firearm specifications as to each of Counts

1 and 2 to run prior to and consecutively to 9 years on underlying charges in Counts 1 and

2, counts to run concurrently with each other but consecutively to CR-368577.”

{¶6} The transcript reveals that at the end of the resentencing hearing the trial

court advised Cvijetinovic that he would be subject to a mandatory term of five years

postrelease control; however, the trial court failed to include the order of postrelease

control in the sentencing journal entries. Cvijetinovic again appealed, challenging the

denial of his motion to withdraw his guilty pleas and his sentence. In State v.

Cvijetinovic, 8th Dist. Cuyahoga No. 82894,

, this court affirmed the trial

court’s decision denying the motion to withdraw his guilty pleas and upheld his sentence. {¶7} In 2011, the trial court received notification from the Ohio Department of

Rehabilitation and Correction that postrelease control was not imposed on Cvijetinovic at

the time of resentencing. Accordingly, the trial court conducted a video conference

hearing on May 12, 2011, to order postrelease control. At the hearing, the trial court

advised Cvijetinovic that he had served his sentences on both cases — CR-368577 and

368578 and therefore, postrelease control would be imposed only on CR-368579.

Cvijetinovic contested that his 12-year sentence on CR-368579 was completed (including

all mandatory time for firearm specifications), and he was now serving his remaining

four-year sentence on CR-368577. The trial court disagreed, reasoning that

Cvijetinovic’s sentences were served based on the order of the case numbers — the

lowest case number was served first. The court then advised Cvijetinovic that he was

subject to five years mandatory postrelease control in CR-368579 because he was

convicted of first-degree felonies. Cvijetinovic did not file a direct appeal regarding the

imposition of postrelease control.

{¶8} In October 2012, Cvijetinovic moved to vacate the imposition of postrelease

control, contending that (1) the trial court imposed a period of postrelease control on a

sentence that was completed, and (2) he was not physically present in the courtroom for

the hearing.

{¶9} The trial court denied his motion. Cvijetinovic now appeals contending in

his sole assignment of error that the trial court erred and violated his constitutional rights

by adding postrelease control to his sentence after his sentence had already been served. The state contends that Cvijetinovic’s appeal is barred by res judicata or, in the

alternative, that the imposition of postrelease control was proper.

{¶10} After a thorough review of the entire record, we find that the trial court

advised Cvijetinovic that he was subject to a mandatory term of five years postrelease

control at the 2003 sentencing hearing, but failed to include the condition in the

sentencing journal entry. This omission can be corrected nunc pro tunc. See State ex

rel. Womack v. Marsh,

,

,

, ¶ 14; State

v. Qualls,

,

,

, syllabus (“When a

defendant is notified about postrelease control at the sentencing hearing, but notification

is inadvertently omitted from the sentencing entry, the omission can be corrected with a

nunc pro tunc entry and the defendant is not entitled to a new sentencing hearing.”); State

v. Murray,

,

, ¶ 23 (6th Dist.) (nunc pro tunc correction of

judgment on issue of postrelease control permissible even after offender served his

sentence and released from prison) In 2003, Cvijetinovic’s 12-year sentence on the first

degree felonies in CR-368579 had yet to be completed. Therefore, the advisement of

five years of mandatory postrelease control was proper.

{¶11} Accordingly, Cvijetinovic’s assignment of error is overruled. Judgment

affirmed, but case remanded to the trial court to correct the 2003 sentencing journal entry

by nunc pro tunc entry to reflect the imposition of the mandatory term of five years

postrelease control on Case No. CR-368579.

It is ordered that the parties share the costs herein taxed. The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. Case remanded to the trial court for

execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and PATRICIA ANN BLACKMON, J., CONCUR