[Cite as State v. McCrae,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : TWAN E. MCCRAE : Case No. CT2016-0047 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR1999-0092

JUDGMENT: Affirmed in part; Reversed and Remanded in part

DATE OF JUDGMENT ENTRY: December 9, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX TWAN E. MCCRAE Prosecuting Attorney #A392-042 BY GERALD V. ANDERSON II. London Correctional Institution Assistant Prosecuting Attorney Box 69 27 North Fifth St., Box 189 London, OH 43140 Zanesville, OH 43702 Muskingum County, Case No. CT2016-0047 2

Gwin, P.J.

{¶1} Appellant Twan McCrae appeals the August 8, 2016 judgment entry of the

Muskingum County Court of Common Pleas. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} In February of 2000, a jury found appellant not guilty of aggravated murder,

but guilty of the lesser included offense of murder and of two counts of having a weapon

while under disability. By entry filed on April 3, 2000, the trial court sentenced appellant

to an indefinite term of fifteen years to life on the murder count, plus a mandatory three

year prison term for a firearm specification, to be served consecutively. As for the

weapons charges, the trial court merged the two counts and sentenced appellant to five

years in prison, to be served consecutively to the other sentences. In the sentencing

entry and at the sentencing hearing, the trial court provided post-release control was

“mandatory up to a maximum of five years.” In the entry, the trial court also stated it

informed appellant of the consequences for violating post-release control. Appellant is

currently incarcerated and is serving his original sentence.

{¶3} Appellant filed a direct appeal and argued the trial court erred in admitting

a firearm into evidence that was not the actual firearm used on the evening in question.

In State v. McCrae, 5th Dist. Muskingum No. CT2000-0012,

(Dec. 20,

2000), we overruled appellant’s assignment of error and affirmed his conviction.

{¶4} On June 17, 2016, appellant filed a motion for resentencing to vacate void

sentence pursuant to R.C. 2967.28. Appellant argued the trial court failed to properly

impose post-release control and requested a de novo sentencing hearing. Appellee filed

a response on June 26, 2016 and stated the term of post-release control given to Muskingum County, Case No. CT2016-0047 3

appellant at the sentencing hearing and in the original sentencing entry was incorrect.

Rather than five years mandatory post-release control, appellant should have been given

three years of optional post-release control. However, appellee argued the trial court

should not hold a de novo sentencing hearing, but should hold a resentencing hearing

only on the issue of post-release control.

{¶5} On August 8, 2016, the trial court issued a nunc pro tunc sentencing entry

changing the language contained in the sentencing entry regarding post-release control

from a mandatory five year term to an optional term for up to three years.

{¶6} Appellant appeals the August 8, 2016 judgment entry of the Muskingum

County Court of Common Pleas and assigns the following as error:

{¶7} “I. DID THE TRIAL COURT ERROR WHEN IT ISSUED A NUNC PRO

TUNC AND FAILED TO HOLD A DE NOVO RESENTENCING HEARING IN THIS CASE

PURSUANT TO APPELLANT BEING CONVICTED PRIOR TO JULY 11, 2006.”

I.

{¶8} In his brief, appellant makes two separate arguments: that the trial court

erred in not giving him a de novo sentencing hearing and that the trial court erred in

issuing a nunc pro tunc entry without holding a resentencing hearing.

{¶9} We first address appellant’s argument that the trial court erred in issuing a

nunc pro tunc entry to correct the term of post-release control without holding a

resentencing hearing.

{¶10} Appellee concedes the term of post-release control should be a three-year

discretionary term and that the term of post-release control was misstated at the

sentencing hearing and in the resulting judgment entry, but argues since appellant was Muskingum County, Case No. CT2016-0047 4

advised of five years of mandatory post-release control and the nunc pro tunc entry

corrected that to a lesser term of three years of discretionary post-release control,

appellant fails to show harm and/or prejudice. Appellee further contends that, at most,

appellant may be resentenced solely on the issue of post-release control.

{¶11} R.C. 2929.191 sets forth a procedure for the trial court to correct a judgment

of conviction when the trial court failed to properly notify a defendant about the requisite

post-release control at both the sentencing hearing and in the final judgment entry. The

statute applies to sentenced offenders whose sentence has not been completed. Under

these circumstances, the trial court may, after holding a hearing, issue a nunc pro tunc

correction to the judgment of conviction. State v. Camp, 5th Dist. Delaware No.

10CAA080066,

; State v. Valentin, 5th Dist. Ashland No. 15-COA-020,

. The court’s placement of the nunc pro tunc entry on the journal has the

same effect as if the court had included the correct notification in the original sentencing

entry and had notified the offender of the applicable term of post-release control at the

original sentencing hearing.

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

but the court may permit the offender to appear at the hearing by video conferencing

equipment. State v. Miller, 5th Dist. Stark No. 2013CA00115,

; State v.

Minor, 5th Dist. Richland No. 15CA81,

(stating case law does not require

the trial court to make appellant physically present for the limited purposes of

resentencing to properly impose post-release control).

{¶12} Appellant’s sentence has not been completed. In this case, where appellant

was not properly notified of the correct term of post-release control at the sentencing

hearing or in the final sentencing entry, the trial court erred in resentencing appellant Muskingum County, Case No. CT2016-0047 5

through a nunc pro tunc journal entry. See State v. Valentin, 5th Dist. Ashland No. 15-

COA-020,

.

{¶13} We next address appellant’s contention that he is entitled to a de novo

sentencing hearing. In State v. Fisher,

,

,

, the Ohio Supreme Court held, “only the offending portion of the sentence is subject

to review and correction” and thus the “new sentencing hearing to which an offender is

entitled * * * is limited to proper imposition of post-release control.” Therefore, while

appellant’s sentence is void with respect to post-release control, the remainder of his

sentence is valid under the principles of res judicata.

This Court has applied Fisher

to cases in which defendants were sentenced prior to July 11, 2006, and affirmed

decisions in which the trial court denied the defendant a de novo sentencing hearing.

State v. Minor, 5th Dist. Richland No. 15CA81,

; see also State v. Bunting,

5th Dist. Stark Nos. 2011 CA 00112, 2011 CA 00130, 2011 CA 00131. Accordingly,

appellant is not entitled to a de novo sentencing hearing.

{¶14} Based on the foregoing, we overrule appellant’s assignment of error in part

and sustain appellant’s assignment of error in part. We find appellant’s sentence with

regards to post-release control must be corrected via a resentencing hearing. However,

a de novo sentencing hearing is not required. The limited resentencing must cover only

the imposition of post-release control and the remainder of the sentence is valid under

the principle of res judicata. Muskingum County, Case No. CT2016-0047 6

{¶15} The judgment of the Muskingum County Court of Common Pleas, is

affirmed in part and reversed and remanded in part.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur