[Cite as State v. Smith, 2016-Ohio-4688.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.       15CA010778

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
HENRY SMITH, JR.                                      COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   02CR060895

                                 DECISION AND JOURNAL ENTRY

Dated: June 30, 2016



        MOORE, Judge.

        {¶1}     Defendant-Appellant Henry Smith, Jr. appeals from the judgment of the Lorain

County Court of Common Pleas which denied his motion to vacate postrelease control and

terminate his supervision. We reverse.

                                                 I.

        {¶2}     In 2002, Mr. Smith was indicted on multiple drug-related charges, including

several first-degree felonies. The indictment was later supplemented with additional charges.

Mr. Smith ultimately pleaded guilty to the indictment and, in 2004, was sentenced to an

aggregate term of 11 years in prison. In 2009, Mr. Smith filed a motion for “sentencing” in

which he challenged the trial court’s failure to provide a postrelease control notification for each

of his convictions. The trial court denied his motion, and Mr. Smith’s appeal was subsequently

dismissed. See State v. Smith, 9th Dist. Lorain No. 09CA009587 (Aug. 13, 2009). Mr. Smith

was released from prison in 2013 and was placed on 5 years of postrelease control.
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       {¶3}    In 2015, Mr. Smith filed a motion to vacate post-release control and terminate his

supervision. He argued that the trial court’s 2004 sentencing entry failed to impose a specific

term of postrelease control and used improper discretionary language, and thus, rendered that

portion of his sentence void. Mr. Smith further asserted that his sentence could not be corrected

through resentencing because he had completed his prison term. The State opposed the motion

and maintained that, pursuant to State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, because

Mr. Smith was properly informed of postrelease control at the sentencing hearing, and the

sentencing entry mentioned postrelease control, the trial court could remedy the defect in the

sentencing entry via a nunc pro tunc entry even though Mr. Smith had already completed his

prison sentence.

       {¶4}    The trial court, thereafter, issued a nunc pro tunc entry to correct the postrelease

control deficiency in the sentencing entry. Subsequently, the trial court also issued an entry

denying Mr. Smith’s motion to vacate postrelease control and terminate his supervision.

       {¶5}    Mr. Smith has appealed, raising a single assignment of error for our review.

                                                II.

                                 ASSIGNMENT OF ERROR

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       ISSUED A NUNC PRO TUNC ENTRY AND DENIED HENRY SMITH JR.’S
       MOTION TO VACATE AND TERMINATE POSTRELEASE CONTROL.

       {¶6}    Mr. Smith argues in his sole assignment of error that the trial court erred in

denying his motion to vacate postrelease control and terminate his supervision.

       {¶7}    “[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.” Qualls,
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131 Ohio St.3d 499, 2012-Ohio-1111, at ¶ 18; see also State v. Bloomer, 122 Ohio St.3d 200,

2009-Ohio-2462, ¶ 69 (concluding that the trial court is required to notify the defendant of the

mandatory nature of postrelease control as well as the length of that term). Further, “a trial court

must incorporate into the sentencing entry the postrelease-control notice to reflect the

notification that was given at the sentencing hearing.” Qualls at ¶ 19. “[W]hen a judge fails to

impose statutorily mandated post[-]release control as part of a defendant’s sentence, that part of

the sentence is void and must be set aside.” State v. Taylor, 9th Dist. Lorain No. 14CA010583,

2015-Ohio-2194, ¶ 9, quoting State v. Keyes, 9th Dist. Lorain No. 14CA010561, 2015-Ohio-

1757, ¶ 10, quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 26. Such a sentence

“is not precluded from appellate review by principles of res judicata, and may be reviewed at any

time, on direct appeal or by collateral attack.” State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-

5144, ¶ 7, quoting Fischer at paragraph one of the syllabus.

       {¶8}    Because Mr. Smith was convicted of multiple first-degree felonies, he was subject

to a mandatory term of 5 years of postrelease control upon his release from prison. See R.C.

2967.28(B).    At the sentencing hearing, Mr. Smith was notified of the term of, and the

consequences for violating, postrelease control. Mr. Smith does not contest this. However, the

section in the 2004 sentencing entry concerning postrelease control was not completed by the

trial court. We have previously concluded similar sentencings entries with similar problems did

not comport with the post-release control statute. See, e.g., Taylor at ¶ 7-8.

       {¶9}    The State does not dispute that the postrelease control portion of Mr. Smith’s

sentencing entry is void. Instead, the State maintains that, because Mr. Smith was correctly

notified about postrelease control at the sentencing hearing, and the sentencing entry mentions

postrelease control, the trial court could remedy the defect via a nunc pro tunc entry even though
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Mr. Smith had been already released from prison. We do not agree with the State’s reading of

Qualls.

          {¶10} Qualls does hold that, “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.” Id. at ¶ 30. Such language would obviously support the State’s position.

However, the Supreme Court also stated that, “unless a sentencing entry that did not include

notification of the imposition of postrelease control is corrected before the defendant completed

the prison term for the offense for which postrelease control was to be imposed, postrelease

control cannot be imposed.” Id. at ¶ 16. Later in Qualls, the Ohio Supreme Court also concludes

that, “when 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.

          {¶11} Here, there was no correction issued prior to Mr. Smith’s release from prison.

Accordingly, a nunc pro tunc entry could not be used to remedy the defect in the sentencing

entry. See id. Other appellate courts have shared this view. See State v. Bundy, 7th Dist.

Mahoning No. 12 MA 86, 2013-Ohio-2501, ¶ 11-12, 30 (concluding that nunc pro tunc entry

could not be used to correct defect in sentencing entry after defendant was released from prison

even though sentencing hearing contained correct advisement); State v. Huber, 2d Dist. Clark

No. 2013 CA 16, 2014-Ohio-2095, ¶ 9-11; State v. Elliott, 8th Dist. Cuyahoga No. 100404,
                                                 5


2014-Ohio-2062, ¶ 12; State v. Duncan, 1st Dist. Hamilton No. C-120324, 2013-Ohio-381, ¶ 15-

16; but see State v. Chasteen, 12th Dist. Butler No. CA2012-12-247, 2013-Ohio-3573, ¶ 30 and

State v. Murray, 6th Dist. Lucas No. L-10-1059, 2012-Ohio-4996, ¶ 23. Thus, we agree with

Mr. Smith that he could not be subject to postrelease control under the circumstances of this

case. “This Court, therefore, remands this matter to the trial court to vacate the portion [of the]

sentencing entry that attempted to impose post-release control.” Taylor, 2015-Ohio-2194, at ¶ 10,

quoting Keyes, 2015-Ohio-1757, at ¶ 14, quoting State v. Thomas, 9th Dist. Summit No. 26699,

2013-Ohio-2078, ¶ 7. Likewise, we vacate the nunc pro tunc entry as well.

       {¶12} Mr. Smith’s assignment of error is sustained.

                                                III.

       {¶13} The judgment of the Lorain County Court of Common Pleas is reversed and this

matter is remanded for the trial court to vacate Mr. Smith’s term of postrelease control.

                                                                               Judgment reversed,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     CARLA MOORE
                                                     FOR THE COURT



CARR, P. J.
CANNON, J.
CONCUR.

(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)


APPEARANCES:

KATHERINE R. ROSS-KINZIE, Assistant State Public Defender, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
