[Cite as State v. Valentine,

.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 15-COA-020 : STEPHEN J. VALENTINE : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 14-CRI- 172

JUDGMENT: REVERSED, VACATED, AND REMANDED

DATE OF JUDGMENT ENTRY: December 21, 2015

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

CHRISTOPHER R. TUNNELL CHRISTINA I. REIHELD ASHLAND CO. PROSECUTOR P.O. Box 532 GARY D. BISHOP Danville, OH 43014 110 Cottage St. Ashland, OH 44805 Ashland County, Case No. 15-COA-020 2

Delaney, J.

{¶1} Appellant Stephen J. Valentine appeals from the May 1, 2015 Judgment

Entry - Sentencing of the Ashland County Court of Common Pleas. Appellee is the

state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} A statement of the facts underlying appellant’s criminal convictions is not

necessary to our resolution of this appeal. Appellant entered negotiated pleas of guilty

to three offenses: murder, an unspecified felony pursuant to R.C. 2903.02(A); domestic

violence, a felony of the third degree pursuant to R.C. 2919.25(A); and tampering with

evidence, a felony of the third degree pursuant to R.C. 2921.12(A)(1). In exchange for

the pleas of guilty, other charges against appellant were dismissed and appellant

waived his right to appeal the convictions and sentences.

{¶3} The plea agreement did not prevent appellant from arguing the murder

and domestic violence counts should merge for purposes of sentencing. During the

plea hearing, the trial court advised appellant he would be subject to three years of

mandatory post-release control if the domestic violence count did not merge, and three

years of discretionary post-release control if the counts did merge.

{¶4} At sentencing, the parties agreed the domestic violence count merged

with the count of murder. Appellant was thus sentenced upon one count of murder and

one count of tampering with evidence: the trial court imposed a term of 15 years to life

consecutive to a term of 36 months. At the sentencing hearing, the trial court stated

appellant was subject to three years of mandatory post-release control. Ashland County, Case No. 15-COA-020 3

{¶5} The resulting sentencing judgment entry stated appellant would be subject

to five years of mandatory post-release control.

{¶6} Appellant now appeals from the judgment entry of his convictions and

sentence.

{¶7} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶8} "I. THE TRIAL COURT ERRED BY FAILING TO NOTIFY VALENTINE

OF THE PROPER TERM OF POST-RELEASE CONTROL AT SENTENCING OR

FAILING TO IMPOSE THE PROPER TERM OF POST RELEASE CONTROL IN ITS

SENTENCING ENTRY."

ANALYSIS

{¶9} In his sole assignment of error, appellant argues the trial court failed to

advise appellant of the correct term of post-release control at sentencing and failed to

impose the correct term of post-release control. Appellee concedes the term of post-

release control should be a 3-year discretionary term. We agree with the parties and

therefore reverse and vacate the trial court’s imposition of post-release control. We

remand this matter to the trial court for further proceedings.

{¶10} Appellant is not subject to post-release control upon the count of murder

because he is subject to parole supervision pursuant to R.C. 2967.01(E) and

2967.13(A). Nor is he subject to post-release control upon the count of domestic

violence which merged with the count of murder. Ashland County, Case No. 15-COA-020 4

{¶11} Appellant is thus subject to a discretionary 3-year period of post-release

control upon the count of tampering with evidence, a felony of the third degree. R.C.

2921.12(B); R.C. 2967.28(C).

{¶12} The term of post-release control was misstated at the sentencing hearing

and in the resulting judgment entry, requiring remand for a de novo hearing as to post-

release control only.1 R.C. 2929.191 sets forth a procedure for the trial court to correct

a judgment of conviction when the trial court, either at the sentencing hearing or in the

final judgment, failed to properly notify a defendant about the requisite post-release

control. State v. Crawley, 5th Dist. Stark No. 2010-CA-00057,

, ¶ 68.

Under that statute, the trial court must conduct a hearing as described by R.C.

2929.191(C):

(C) On and after the effective date of this section, a court that

wishes to prepare and issue a correction to a judgment of

conviction of a type described in division (A)(1) or (B)(1) of this

section shall not issue the correction until after the court has

conducted a hearing in accordance with this division. Before a court

holds a hearing pursuant to this division, the court shall provide

notice of the date, time, place, and purpose of the hearing to the

offender who is the subject of the hearing, the prosecuting attorney

of the county, and the department of rehabilitation and correction.

1Under these circumstances, a nunc pro tunc entry pursuant to Crim.R. 36 to modify a sentencing entry cannot serve to correct the errors. A nunc pro tunc entry cannot go beyond correcting a clerical error to conform the sentencing entry to reflect that proper notification occurred when it did not; such action would improperly change the substance of the entry to include events that never occurred. State v. Qualls,

,

,

, ¶ 26. Ashland County, Case No. 15-COA-020 5

The offender has the right to be physically present at the hearing,

except that, upon the court's own motion or the motion of the

offender or the prosecuting attorney, the court may permit the

offender to appear at the hearing by video conferencing equipment

if available and compatible. An appearance by video conferencing

equipment pursuant to this division has the same force and effect

as if the offender were physically present at the hearing. At the

hearing, the offender and the prosecuting attorney may make a

statement as to whether the court should issue a correction to the

judgment of conviction.

{¶13} In the instant case, because the trial court misstated the term of post-

release control both at the hearing and in the sentencing entry, a remand for a de novo

hearing is required because R.C. 2929.19(B)(3)(c) requires the court to “notify” the

offender about post-release control and the Ohio Supreme Court has held that this

notification must come during the sentencing hearing. State v. Harris, 8th Dist.

Cuyahoga No. 95097,

, ¶ 7, citing State v. Jordan,

,

,

at paragraph two of the syllabus. Accordingly, we are

bound to find that appellant's sentence with regard to post-release control must be

corrected in accordance with R.C. 2929.191, including having a hearing using the

procedures set forth in R.C. 2929.191(C). State v. Crawley, 5th Dist. Stark No. 2010-

CA-00057,

, ¶ 7.

{¶14} A complete de novo resentencing is not required; the limited resentencing

must cover only the imposition of post-release control and the remainder of the Ashland County, Case No. 15-COA-020 6

sentence is valid under the principles of res judicata. State v. Fischer,

,

,

, 338-39, ¶ 17.

{¶15} Accordingly, the judgment of the trial court is reversed and the matter

remanded for the purpose of a limited resentencing pursuant to R.C. 2929.191. See,

Crawley, supra,

.

CONCLUSION

{¶16} Appellant’s sole assignment of error is sustained, the judgment of the trial

court regarding post-release control is reversed and vacated, and this matter is

remanded to the trial court for a hearing pursuant to R.C. 2929.191.

By: Delaney, J. and

Gwin, P.J.

Baldwin, J., concur.