State v. Qualls

• Decision Date: 20 March 2012
• Docket Number: No. 2011–0202.,2011–0202.
• Citation: 967 N.E.2d 718,131 Ohio St.3d 499,2012 -Ohio- 1111
• Parties: The STATE of Ohio, Appellee, v. QUALLS, Appellant.
• Court: Ohio Supreme Court

131 Ohio St.3d 499

967 N.E.2d 718

2012 -Ohio- 1111

The STATE of Ohio, Appellee,

v.QUALLS, Appellant.

No. 2011–0202.

Supreme Court of Ohio.

Submitted Oct. 5, 2011.

Decided March 20, 2012.

[Ohio St.3d 499]Syllabus of the Court

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.Colleen S. Williams, Meigs County Prosecuting Attorney, and Amanda Bizub–Franzmann, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Katherine A. Szudy and E. Kelly Mihocik, Assistant Public Defenders, for appellant.

CUPP, J.

{¶ 1} The defendant-appellant in this case was notified of postrelease control at his 2002 sentencing hearing, but the language indicating notification had been made was inadvertently omitted from the sentencing entry that resulted from that hearing. When the omission came to light, the trial court, in 2010, corrected the sentencing entry through a nunc pro tunc entry that stated that the notification had been made and denied the defendant's request for a new sentencing hearing. The appellate court upheld the trial court's actions as a permissible use of a nunc pro tunc entry. For the reasons that follow, we agree that the trial court's use of a nunc pro tunc entry was appropriate in the specific circumstances of this case, and we accordingly affirm the judgment of the court of appeals.

I. Facts and Procedural History

{¶ 2} On August 15, 2002, defendant-appellant, Eric A. Qualls, pled guilty before a three-judge panel in Meigs County Common Pleas Court to one count of aggravated murder and one count of kidnapping. The state's part of the plea [Ohio St.3d 500]agreement included dropping an additional count of aggravated murder and dismissing a death-penalty specification. The trial court accepted the plea and imposed an aggregate prison sentence of 33 years to life, as recommended by the state, in the judgment of conviction. Qualls did not appeal his conviction and sentence.

{¶ 3} On January 15, 2010, Qualls filed in the trial court a pro se “motion for de novo sentencing hearing.” In this motion, Qualls admitted that he was informed at his sentencing hearing that he would be subject to five years of postrelease control upon his release from prison, but contended that he was not subject to postrelease control because his conviction for aggravated murder was a special felony.¹ Qualls argued that because R.C. 2967.28, the postrelease-control statute, was not applicable to him, he was entitled to a new sentencing hearing to correct the alleged error.

{¶ 4} In its response, the state explained that postrelease control was not imposed for the aggravated-murder offense, but was imposed for the kidnapping offense only. The state also asserted that Qualls had been orally informed of postrelease control at his sentencing hearing, had consulted with his attorney about postrelease control at that time, and had verified for the court that he understood why it was being imposed. However, in formulating its response to Qualls's 2010 motion, the state realized that despite notification at the sentencing hearing, the 2002 entry contained no mention of postrelease control. The state therefore asked the trial court to issue a nunc pro tunc entry reflecting that the trial court had advised Qualls of postrelease control at his sentencing hearing.

{¶ 5} Qualls argued in response to the state's request for a nunc pro tunc entry that because the 2002 sentencing entry did not mention postrelease control, his sentence was void, and he asserted that he was entitled to a de novo sentencing hearing.

{¶ 6} On March 29, 2010, by entry, the trial court agreed with the state's arguments: it ruled that postrelease control applied to Qualls's conviction for kidnapping and that Qualls was not entitled to a new sentencing hearing, because Qualls had admitted that he had been orally advised that he was subject to postrelease control at his 2002 sentencing hearing. The trial court issued a nunc pro tunc sentencing entry that included two new paragraphs indicating that Qualls had been notified that he was subject to postrelease control.

{¶ 7} The Fourth District Court of Appeals affirmed upon Qualls's pro se appeal. It held that the trial court correctly overruled the motion for a de novo sentencing hearing and that a nunc pro tunc entry was the proper remedy to [Ohio St.3d 501]correct the sentencing entry, considering that Qualls had admitted that he was informed at the 2002 sentencing hearing that he would be subject to postrelease control upon his release from prison. State v. Qualls, 4th Dist. No. 10CA8, 2010-Ohio-5316, 2010 WL 4275251, ¶ 9–13.

{¶ 8} The court of appeals certified that its decision conflicted with the decision of the Sixth District Court of Appeals in State v. Lee, 6th Dist. No. L–09–1279, 2010-Ohio-1704, 2010 WL 1511708, which held that a nunc pro tunc entry cannot be used to correct the omission of postrelease-control language from the sentencing entry in situations such as this, and that a defendant must be afforded a new sentencing hearing to correct the omission.

{¶ 9} We recognized the conflict on the following question, as phrased by the court of appeals: “If a defendant is notified about postrelease control at the sentencing hearing, but that notification is inadvertently omitted from the sentencing entry, can that omission be corrected with a nunc pro tunc entry?” 128 Ohio St.3d 1424, 2011-Ohio-1049, 943 N.E.2d 571.

II. Analysis

{¶ 10} Before analyzing the legal issue presented by this case, we clarify the parameters of the certified question we address. The appellate court approached this case from the perspective that Qualls has conceded that the trial court's notification regarding postrelease control at the 2002 sentencing hearing adequately informed him of postrelease control.² Procedurally, we are thus required to accept as fact that the trial court's 2002 notification regarding postrelease control in the sentencing hearing was statutorily compliant and that the notification was inadvertently omitted from the 2002 sentencing entry. These features were also present in the conflict case, Lee. See 2010-Ohio-1704, 2010 WL 1511708, at ¶ 6 (“It is undisputed that the trial court notified appellant at his sentencing hearing that he would be subject to mandatory postrelease control. The trial court did not, however, include this notice in the sentencing entry”). We also note that this appeal does not include any issue regarding Qualls's plea and convictions, but involves only the sentencing question.

[Ohio St.3d 502]{¶ 11} The essence of Qualls's argument is that numerous decisions in this court's postrelease-control precedents support the proposition that for a sentence imposed prior to the effective date of R.C. 2929.191, a trial court's sentencing entry that failed to include postrelease control is void. In that situation, Qualls further argues, the sentencing entry cannot be corrected through a nunc pro tunc entry, but instead the trial court must hold a de novo resentencing hearing to correct the void sentence and to properly impose postrelease control. See, e.g.,Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000); State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864;Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301;State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961,modified in part by State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph two of the syllabus; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568;State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254. Qualls especially relies on State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958.

{¶ 12} Qualls additionally argues that this court's more recent decision in Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, does not change that result. He contends that Fischer, which modified Bezak in part and held that the new sentencing hearing to which an offender is entitled when postrelease control was not properly imposed is limited to the proper imposition of postrelease control, has “abrogated” the right of a defendant such as himself to a de novo sentencing hearing. Consequently, he asserts that Fischer should not apply retroactively to him and that his resentencing hearing must be de novo rather than limited.

A. Standards for Nunc pro Tunc Entries

{¶ 13} This court recently explained, in a decision not cited by Qualls, that when a trial court properly notified a defendant of postrelease control at the sentencing hearing, but the initial sentencing entry did not accurately reflect the details of the notification, the imperfect sentencing entry can be corrected through a nunc pro tunc entry. In that situation, “[n]o new sentencing hearing is required, because the trial court's failure to include the postrelease-control term in the original sentencing entry was manifestly a clerical error. * * * Although trial courts generally lack authority to reconsider their own valid final judgments in criminal cases, they retain continuing jurisdiction to correct clerical errors in judgments by nunc pro tunc entry to reflect what the court actually decided.” State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶ 13, citing State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18–19, and Crim.R. 36 (“Clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time”). See [Ohio St.3d 503]State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 18–19 (courts possess the authority to correct an...