[Cite as State v. Williams,
2016-Ohio-7513.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 16 CAA 01 0001
:
JAMES J. WILLIAMS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court
of Common Pleas, Case No. 14 CRI 05
0189 A
JUDGMENT: REVERSED AND REMANDED FOR
NUNC PRO TUNC RESENTENCING
ENTRY
DATE OF JUDGMENT ENTRY: October 26, 2016
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CAROL HAMILTON O’BRIEN APRIL F. CAMPBELL
DELAWARE COUNTY PROSECUTOR 545 Metro Place South, Suite 100
Dublin, OH 43017
CORY J. GOE
140 N. Sandusky St., 3rd Floor
Delaware, OH 43015
Delaware County, Case No. 14 CAA 01 0001 2
Delaney, J.
{¶1} Defendant-Appellant James J. Williams appeals the December 22, 2015
resentencing entry of the Delaware County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} Defendant-Appellant James J. Williams and his co-defendant were charged
by indictment with one count of aggravated robbery with a firearm specification [Count I]
and one count of felonious assault [Count II]; Williams was also charged with one count
of aggravated menacing [Count III]; one count of tampering with evidence [Count IV]; one
count of having weapons while under disability [Count V]; and one count of possession
of heroin [Count VI]. Williams entered pleas of not guilty and the case proceeded to trial
by jury. Count VI, possession of heroin, was dismissed pursuant to Crim.R. 29(A).
Williams was otherwise found guilty as charged on July 17, 2014.
{¶3} Williams was sentenced to an aggregate prison term of ten years.
{¶4} Williams filed a direct appeal of his conviction, sentence, and a denial of his
motion for new trial. He argued in part that the trial court did not provide sufficient notice
of the terms of his post-release control and the consequences for violation thereof.
{¶5} Williams was convicted upon Count I, a felony of the first degree, Count II,
a felony of the second degree; [Count III, a misdemeanor of the first degree]; Count IV, a
felony of the third degree; and Count V, a felony of the third degree. At sentencing,
Williams was advised as follows:
…
You are further advised that Post Release Control in this case is mandatory
on Count 1 for a period of five years for a violation of Aggravated Robbery,
Delaware County, Case No. 14 CAA 01 0001 3
a felony of the first degree; Post Release Control is mandatory for a period
of three years on Count 2 for a violation of Felonious Assault, a felony of
the second degree; and Post Release Control is optional on Counts 4 and
5, Count 4 being Tampering with Evidence in violation of 2921.12(A)(1), a
felony of the third degree, and Count 5, Having Weapons While Under
Disability, also a felony of the third degree, in violation of Section
2923.12(A)(3) of the Ohio Revised Code, as well as the consequences for
the—for violating the conditions of Post Release Control imposed by the
Parole Board.
…
(Tr. Motion Hearing and Sentencing, 27).
{¶6} The Judgment Entry of Prison Sentence of September 15, 2014 stated in
pertinent part:
…
The defendant is notified that as part of this sentence after completion of
the prison term, he shall be subject to a mandatory period of supervision,
Post–Release Control, of five years on Count One, and a mandatory period
of supervision, Post–Release Control of three years on Count Two. Post–
Release Control is optional on Counts Four and Five. For violating Post-
release Control conditions, the Adult Parole Authority or Parole Board may
impose a more restrictive or longer control sanction, or return the defendant
to prison for up to a maximum of 50% of the stated term. If the violation is a
new felony, the defendant may receive a new prison term of the greater of
Delaware County, Case No. 14 CAA 01 0001 4
one (1) year or the time remaining on Post-release Control, in addition to
any prison sentence imposed on the new felony.
…
{¶7} The trial court did not specify the terms of post-release control upon Counts
IV and V, felonies of the third degree. In State v. Williams, 5th Dist. Delaware No.
14CAA100064, 2015-Ohio-3245, ¶ 30-31, we agreed with Williams that the trial court did
not properly advise him of post-release control for Counts IV and V. We vacated the
portion of Williams’s sentence relating to post-release control and remanded the matter
to the trial court for proper imposition of post-release control. Id. at ¶ 32-33.
{¶8} The trial court held a resentencing hearing on December 21, 2015 for the
purposes of imposing the correct term of post-release control. At the resentencing
hearing, the trial court informed Williams that on Counts IV and V, he was subject to a
period of post-release control “up to three years.” (Tr. 31).
{¶9} The trial court filed its Judgment Entry of Re-Sentencing on December 22,
2015. In the judgment entry, the trial court stated, “[p]ost-release Control is an optional
period of three years on Counts Four and Five.”
{¶10} Williams again appeals the trial court’s failure to properly impose post-
release control on Counts IV and V.
ASSIGNMENT OF ERROR
{¶1} Williams raises one Assignment of Error:
{¶2} “THE TRIAL COURT INCORRECTLY STATED THE TERMS OF
DISCRETIONARY POST-RELEASE CONTROL ON WILLIAMS’ THIRD-DEGREE
FELONY CONVICTIONS, IN WILLIAM’S [SIC] RESENTENCING ENTRY.”
Delaware County, Case No. 14 CAA 01 0001 5
ANALYSIS
{¶3} Williams argues in his sole Assignment of Error that the trial court incorrectly
stated the terms of the post-release control for Counts IV and V in the December 22, 2015
resentencing judgment entry. We agree.
{¶4} Counts IV and V are third-degree felonies. R.C. 2967.28(C) states in
pertinent part: “Any sentence to a prison term for a felony of the third, fourth, or fifth degree
… shall include a requirement that the offender be subject to a period of post-release
control of up to three years after the offender's release from imprisonment, if the parole
board, in accordance with division (D) of this section, determines that a period of post-
release control is necessary for that offender.” We are required by the Ohio Supreme
Court, pursuant to R.C. 2953.08(G)(2), to “ … examine the sentencing court's
compliance with all the applicable rules and statutes in imposing the sentence to
determine whether the sentence is clearly and convincingly contrary to law.” State v.
Smalls, 5th Dist. Stark No.2013CA00086, 2013–Ohio–5674, ¶¶ 15–16, citing State v.
Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912,
896 N.E.2d 124, ¶ 4. The trial court's
notification did not comply with R.C. 2967.28(C).
{¶5} The Ohio Supreme Court has held that if post-release control was not
properly rendered, the offending portion of the sentence dealing with post-release control
is subject to review and correction. State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238,
942 N.E.2d 332; State v. Bezak,
114 Ohio St.3d 94, 2007–Ohio–3250,
868 N.E.2d 961.
There is no dispute the trial court accurately gave Williams notification of post-release
control at the resentencing hearing. The trial court, however, did not incorporate the
correct notice in the resentencing judgment entry. Pursuant to the Ohio Supreme Court’s
Delaware County, Case No. 14 CAA 01 0001 6
decision in State v. Qualls, where notification of post-release control was accurately given
at the sentencing hearing, an inadvertent failure to incorporate that notice into the
sentencing entry may be corrected by a nunc pro tunc entry without a new sentencing
hearing. Qualls,
131 Ohio St.3d 499,
2012-Ohio-1111,
967 N.E.2d 718, ¶ 15.
CONCLUSION
{¶6} We sustain Williams’s Assignment of Error as to the trial court’s incorrect
notification of post-release control for Counts IV and V in the December 22, 2015
resentencing judgment entry. We vacate the portion of the December 22, 2015
resentencing judgment entry relating to the imposition of post-release control on Counts
IV and V. The matter is remanded to the trial court to correct the omission with a nunc pro
tunc resentencing judgment entry.
By: Delaney, J.,
Gwin, P.J. and
Wise, J., concur.
