[Cite as State v. Pyne,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100580

STATE OF OHIO PLAINTIFF-APPELLANT

vs.

WILLIAM PYNE DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-576077

BEFORE: Boyle, A.J., Kilbane, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: July 10, 2014 ATTORNEYS FOR APPELLANT

Timothy J. McGinty Cuyahoga County Prosecutor BY: Daniel T. Van Brett Hammond Joseph J. Ricotta Assistant County Prosecutors Justice Center 1200 Ontario Street Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Mark A. Schneider 21055 Lorain Road Fairview Park, Ohio 44126 MARY J. BOYLE, A.J.:

{¶1} Plaintiff-appellant, the state of Ohio, appeals from a judgment granting

defendant-appellee’s, William Pyne’s, motion to dismiss the escape indictment against

him. The state raises two assignments of error for our review:

1. The trial court erred in dismissing the indictment because the defendant was orally notified at sentencing of the consequences for violating postrelease control and the journal entry imposes the correct term of postrelease control and references the postrelease control statute. Therefore the defendant was properly on postrelease control and, as a result, he was properly charged with escape.

2. The trial court erred in dismissing the indictment, because even if the sentencing entry omits the potential additional prison time that could be imposed for violations of postrelease control, the defendant was properly advised of postrelease control and was properly on postrelease control when he absconded. Therefore, the escape charge should not have been dismissed.

{¶2} Finding no merit to the state’s appeal, we affirm.

Procedural History

{¶3} In August 2009, Pyne pleaded guilty to one count of failing to verify his

address in violation of R.C. 2950.06(F), a third-degree felony. The trial court sentenced

Pyne to three years in prison. The sentencing entry journalized by the trial court notified

Pyne that he would be subject to three years of postrelease control upon his release from

prison under R.C. 2967.28. The trial court, however, failed to include the necessary

language in the sentencing entry notifying Pyne of the consequences that he could face if

he violated the terms of his postrelease control. {¶4} Pyne completed his prison term and, while on postrelease control, allegedly

failed to report to his parole officer on or about September 25, 2012. In July 2013, Pyne

was indicted on one count of escape, in violation of R.C. 2921.34(A)(3).

{¶5} Pyne moved to dismiss his indictment, arguing that he was never properly

placed on postrelease control because the trial court failed to journalize the consequences

of violating postrelease control. Pyne further argued that because he was never placed

on postrelease control, he could not be charged with escape for failing to report to his

parole officer.

{¶6} The trial court granted Pyne’s motion to dismiss. It is from this judgment

that the state now appeals. The state’s two assignments of error collectively challenge

the court’s granting Pyne’s motion and dismissing the indictment. Thus, we will address

them together.

Law and Analysis

{¶7} The failure to properly notify a defendant of postrelease control and to

incorporate that notice into the court’s sentencing entry renders the sentence void. State

v. Jordan,

,

,

, paragraph one of the

syllabus. This notification also includes informing a defendant of the consequences of

violating postrelease control. See id.; R.C. 2929.19(B)(2)(e).

{¶8} The state argues that despite the trial court’s failure to include the

consequences for violating postrelease control in Pyne’s sentencing entry, the trial court

provided such notice to Pyne at his sentencing hearing. The state claims that because Pyne was provided with proper notice of the consequences for violating postrelease

control at his sentencing hearing and the judgment entry refers to R.C. 2976.28, that was

sufficient for Pyne to be placed on postrelease control in his previous criminal case and,

thus, he could be subject to the charge of escape in the present case.1

{¶9} In support of its argument that notice is the most crucial element when it

comes to postrelease control, the state points to the following Ohio Supreme Court

passage from State v. Qualls,

,

,

, ¶

19:

[A] trial court must incorporate into the sentencing entry the postrelease-control notice to reflect the notification that was given at the sentencing hearing. E.g., Jordan, at paragraph one of the syllabus, see current R.C. 2929.14(D). But our main focus in interpreting the sentencing statutes regarding postrelease control has always been on the notification itself and not on the sentencing entry. See id. at ¶ 23 (recognizing that the “statutory duty” imposed is “to provide notice of postrelease control at the sentencing hearing”); [State ex rel. Cruzado v. Zaleski,

,

,

] (stressing the importance of notification); Watkins [v. Collins],

,

,

, ¶ 52 (stating that the “preeminent purpose” of the statutes is “that offenders subject to postrelease control know at sentencing that their liberty could continue to be restrained after serving their initial sentences”).

The state claims that it attached the relevant portions of the transcript from Pyne’s 2009 1

sentencing hearing to its brief in opposition to Pyne’s motion to dismiss. The state asserts that the transcript shows that the trial court fully complied with the postrelease control notification requirements at that sentencing hearing. The transcript from Pyne’s 2009 sentencing hearing, however, is not in the record on appeal. We note, however, for reasons that will be fully explained in this opinion, having the transcript before us would not affect the outcome of our decision in this case. {¶10} Qualls involved a defendant who had been properly notified about

postrelease control at his sentencing hearing in 2002. The sentencing entry, however,

failed to contain language indicating that notification was made. Id. at ¶ 1. In 2010,

the trial court corrected the omission using a nunc pro tunc entry and denied the

defendant’s request for a de novo sentencing hearing. Id. The Supreme Court upheld

the trial court’s use of a nunc pro tunc entry, explaining:

[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.

(Emphasis added.) Id. at ¶ 24 (the defendant in Qualls was still in prison, serving a

lengthy prison sentence, at the time the trial court corrected the original sentencing entry

via nunc pro tunc).

{¶11} As this court explained in State v. Elliott, 8th Dist. Cuyahoga No. 100404,

:

It is important to understand that Qualls did not say that a court need not advise the defendant of the consequences of violating postrelease control nor can the opinion be read to suggest as much. By sanctioning the use of a nunc pro tunc entry to impose that which had been inadvertently omitted from the sentencing entry, Qualls reinforced the statutory requirement that “a trial court must provide statutorily compliant notification 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 violating postrelease control.” Id. at ¶ 18.

Elliott at ¶ 9. {¶12} Although the Ohio Supreme Court’s jurisprudence in the ever-evolving area

of postrelease control has been anything but easy to decipher, the Supreme Court has

never abandoned its holding from Jordan,

,

,

, that a trial court must notify a defendant at his or her sentencing hearing

about postrelease control and is further required to incorporate that notice into its

sentencing entry. Jordan at paragraph one of the syllabus. Failure to do so renders the

postrelease control portion of the sentence void. State v. Fischer,

,

,

, paragraph one of the syllabus.

{¶13} Even in Qualls, the Supreme Court did not abandon its postrelease control

jurisprudence. As this court explained in Elliott:

[H]ad the Supreme Court intended to abandon the requirement that the court, in its sentencing entry, notify the defendant of the consequences of violating postrelease control, a nunc pro tunc entry would be pointless. The Supreme Court may well consider the verbal notification of the consequences of violating postrelease control at sentencing to be paramount because it is the best proof that the defendant understands the notice, but the court is not excused from incorporating that same notice into its sentencing entry.

Id. at ¶ 11, citing Jordan at ¶ 9.

{¶14} Here, Pyne was released from prison prior to the trial court correcting the

deficiencies in his 2009 sentencing entry. Even if the court properly notified Pyne of the

consequences of violating postrelease control at his 2009 sentencing hearing, the

sentencing entry failed to include the same notification. Thus, any “attempt to impose

postrelease control was void.” Elliott, 8th Dist. Cuyahoga No. 100404,

(Elliott involved nearly an identical set of facts as presented here and nearly identical arguments made by the state). See

See also State v. Mills, 8th

Dist. Cuyahoga No. 100417,

(also dealt with this exact issue, and relied

on State v. Viccaro, 8th Dist. Cuyahoga No. 99816,

, which was the case

that Pyne relied on in his motion to dismiss). We find the state’s arguments

distinguishing Viccaro to be without merit.

{¶15} We do note that in Elliott, the transcript from the original sentencing hearing

was in the record on appeal. This court could verify that the trial court did in fact give

the proper postrelease control notifications at the sentencing hearing. Nonetheless, we

still held that because Elliott had been released from prison, notification at the sentencing

hearing without also being included in the sentencing entry, was not sufficient to place

him on postrelease control and, thus, he could not be charged with escape for violating

postrelease control. Id. at ¶ 12. Accordingly, even if we had the transcript of Pyne’s

2009 sentencing hearing before us, establishing that the trial court notified Pyne of the

consequences of violating postrelease control, we would still affirm the trial court’s

dismissal of the escape indictment against Pyne.

{¶16} Judgment affirmed.

It is ordered that appellee recover of appellant 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. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. 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.

MARY J. BOYLE, ADMINISTRATIVE JUDGE

MARY EILEEN KILBANE, J., and EILEEN T. GALLAGHER, J., CONCUR