[Cite as State v. Elliott, 2014-Ohio-2062.]



                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 100404



                                        STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                      LONNIE ELLIOTT
                                                     DEFENDANT-APPELLANT




                                     JUDGMENT:
                               REVERSED AND REMANDED


                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                      Case No. CR-13-573389

        BEFORE: Stewart, J., Jones, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                    May 15, 2014
ATTORNEY FOR APPELLANT

Richard Agopian
1415 West Ninth Street, 2d Floor
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Joseph J. Ricotta
          Daniel T. Van
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} In December 2006, defendant-appellant Lonnie Elliott pleaded guilty to a

single count of aggravated robbery. The court sentenced Elliott to a total of six years in

prison. At sentencing, the court informed him that he would be subject to a five-year

period of postrelease control upon his release from prison and that a violation of

postrelease control could result in his return to prison for up to one-half of the time he

was receiving. The sentencing entry journalized by the court noted the five-year term of

postrelease control, but failed to state anything relating to the consequences of violating

postrelease control.

       {¶2} Elliott completed his prison term and, while on postrelease control, failed to

report to his probation officer. The state charged him with a single count of escape

under R.C. 2921.34(A)(3). Elliott filed a motion to dismiss the escape count on the

ground that the court’s failure to journalize the consequences of violating postrelease

control (as opposed to verbally informing him) voided postrelease control, thus making

the charge of escape a nullity. At the same time, he filed a motion to vacate the 2006

guilty plea. The court denied both motions. Elliott pleaded guilty to an amended count

of escape and the court ordered him to serve one year of community control. The three

assignments of error collectively challenge the court’s refusal to dismiss the indictment

and vacate the guilty plea.

       {¶3} In its current form, R.C. 2929.19(B)(1)(e) requires the sentencing judge to

“notify” a defendant for whom a period of postrelease control is imposed that if the
defendant violates postrelease control, “the parole board may impose a prison term, as

part of the sentence, of up to one-half of the stated prison term originally imposed upon

the offender.” The court is “required to notify the offender at the sentencing hearing

about postrelease control and is further required to incorporate that notice into its journal

entry imposing sentence.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817

N.E.2d 864, paragraph one of the syllabus.

          {¶4} The court very carefully informed Elliott at sentencing that a violation of

postrelease control could result in a prison term of up to one-half his sentence. The court

stated:

          You will be on post-release control as a mandatory matter for five years
          after you are released from prison. If you violate any post-release control
          rule or condition set by the parole board on you, you’re going to be subject
          to them giving you a more restrictive rule or condition or a longer period of
          supervision, or you can be returned to prison.

          Your return to prison time for all rule violations cannot be any more than
          one-half of the prison sentence you receive. If you commit a new felony
          while you’re on supervision or post-release control, any prison sentence that
          you get for that new felony had to be served consecutively with any prison
          term that you get for your PRC violation.

          {¶5} The court was not as careful when restating that notification in the sentencing

entry. The sentencing entry simply stated: “[p]ostrelease control is part of this prison

sentence for 5 years for the above felony(s) under R.C. 2967.28.”

          {¶6} We note at the outset that the state has abandoned for purposes of appeal the

argument it made below that the court could amend the sentencing entry nunc pro tunc to

correct its failure to mention the consequences of violating postrelease control. This was
wise. In State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, the

Supreme Court made it clear 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.    See also   State v.

Cvijetinovic, 8th Dist. Cuyahoga No. 99316, 2013-Ohio-5121, ¶ 17. The law is settled

— regardless of any clerical error that may have occurred in the sentencing entry, the

defendant’s release from prison constitutes a line that a nunc pro tunc entry cannot cross.

Id. at ¶ 25 (the court may correct the original sentencing entry “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.)

      {¶7} The state’s argument comes down to whether postrelease control was validly

imposed in 2006; for if it was not, the sentence is void, postrelease control was never

properly ordered, and Elliott could not be guilty of escape. State v. Viccaro, 8th Dist.

Cuyahoga No. 99816, 2013-Ohio-3437, ¶ 14; State v. Cash, 8th Dist. Cuyahoga No.

95158, 2011-Ohio-938, ¶ 9.

      {¶8} The state concedes that the sentencing entry made no mention of the

consequences of violating postrelease control, but argues that the completeness of the

court’s verbal notification, coupled with the reference to R.C. 2967.28, was sufficient to

give Elliott notice of the consequences of violating postrelease control. In making this

argument, it cites to a passage in Qualls where the Supreme Court stated:
       We have also stated that a trial court must incorporate into the sentencing
       entry the postrelease-control notice to reflect the notification that was given
       at the sentencing hearing. E.g., Jordan, at paragraph one of the syllabus,
       see current R.C. 2929.14(D). But our main focus in interpreting the
       sentencing statutes regarding postrelease control has always been on the
       notification itself and not on the sentencing entry. See id. at ¶ 23
       (recognizing that the “statutory duty” imposed is “to provide notice of
       postrelease control at the sentencing hearing”); [State v.] Cruzado, 111
       Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, at ¶ 26 (stressing the
       importance of notification); Watkins [v. Collins], 111 Ohio St.3d 425,
       2006-Ohio-5082, 857 N.E.2d 78, at ¶ 52 (stating that the “preeminent
       purpose” of the statutes is “that offenders subject to postrelease control
       know at sentencing that their liberty could continue to be restrained after
       serving their initial sentences”).

(Emphasis added.)

       {¶9} It is important to understand that Qualls did not say that a court need not

advise the defendant of the consequences of violating postrelease control nor can the

opinion be read to suggest as much. By sanctioning the use of a nunc pro tunc entry to

impose that which had been inadvertently omitted from the sentencing entry, Qualls

reinforced the statutory requirement that “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.” Id. at ¶ 18.

       {¶10} Qualls was simply noting the difference in two possible scenarios: the first

(as in this case), where the court gives notification at sentencing but fails to incorporate

that notification in the sentencing entry; the second, where the court does not give

notification at sentencing but does incorporate notice in the sentencing entry.          By

acknowledging that its focus has been on verbal notification at the time of sentencing, the
Supreme Court recognized that in the first scenario, notice had actually been given, so a

nunc pro tunc entry could be issued to reflect that reality. Under the second scenario,

notice was not given at sentencing, so the sentencing entry itself could not be proof of

notice.

          {¶11} Put differently, had the Supreme Court intended to abandon the requirement

that the court, in its sentencing entry, notify the defendant of the consequences of

violating postrelease control, a nunc pro tunc entry would be pointless. The Supreme

Court may well consider the verbal notification of the consequences of violating

postrelease control at sentencing to be paramount because it is the best proof that the

defendant understands the notice, but the court is not excused from incorporating that

same notice into its sentencing entry. Jordan, supra, at ¶ 9.

          {¶12} Although the court properly notified Elliott of the consequences of violating

postrelease control at the time of sentencing in 2006, the court’s sentencing entry failed to

include that same notification. Elliott’s release from prison barred the court from taking

any action to reimpose postrelease control or correct its sentencing entry nunc pro tunc.

It follows that the attempt to impose postrelease control was void. With postrelease

control invalidly entered, the state could not base any prosecution on Elliott’s failure to

comply with the terms of postrelease control.         The court erred by denying Elliott’s

motion to dismiss the indictment charging him with escape. The first assignment of error

is sustained. It follows that the third assignment of error, that the court erred by failing

to terminate Elliot’s postrelease control, is likewise sustained. The second assignment of
error relating to the court’s refusal to allow Elliott to withdraw his guilty plea entered in

2006 is moot. See App.R. 12(A)(1)(c).

       {¶13} This cause is reversed and remanded to the trial court for further

proceedings consistent with this opinion.

       It is ordered that appellant recover of appellee his costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.               A   certified

copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of

Appellate Procedure.




MELODY J. STEWART, JUDGE

LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
