[Cite as State v. Hibbler, 2019-Ohio-3689.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   Appellate Case No. 2019-CA-19
                                                    :
 v.                                                 :   Trial Court Case No. 2001-CR-81
                                                    :
 JOHN HIBBLER                                       :   (Criminal Appeal from
                                                    :    Common Pleas Court)
          Defendant-Appellant                       :
                                                    :


                                               ...........

                                              OPINION

                          Rendered on the 13th day of September, 2019.

                                               ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate
Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
       Attorney for Plaintiff-Appellee

JOHN HIBBLER, #A411-907, P.O. Box 209, Orient, Ohio 43146
     Defendant-Appellant, Pro Se

                                              .............

FROELICH, J.
                                                                                            -2-




         {¶ 1} John Hibbler appeals from an “amended nunc pro tunc judgment entry of

conviction” that was filed to correct in the imposition of post-release control in this case

(Clark C.P. No. 2001-CR-81) and in Clark C.P. No. 2000-CR-636. For the following

reasons, the trial court’s imposition of post-release control in this case will be reversed,

and the matter will be remanded for resentencing in this case on post-release control

only. In all other respects, the trial court’s judgment will be affirmed.

                                     I. Procedural History

         {¶ 2} In April 2001, Hibbler was found guilty by a jury of felony murder with a

firearm specification, a first-degree felony (Case No. 2000-CR-636) and of attempted

aggravated burglary with a firearm specification and improper discharge of a firearm at or

into a habitation, both second-degree felonies (Case No. 2001-CR-81). The two cases

were consolidated prior to trial.1

         {¶ 3} At a combined sentencing hearing, the court sentenced Hibbler to 15 years

to life in prison for the murder, plus an additional three years for the firearm specification.

The court further imposed eight years on each second-degree felony, plus an additional

three years for the firearm specification. The court merged the firearm specifications and

ordered the sentences to be consecutively for an aggregate term of 34 years to life in

prison. For each offense, the trial court imposed “up to a maximum of five years” of

mandatory post-release control. The trial court filed separate judgment entries in the two

cases.

         {¶ 4} On August 8, 2018, Hibbler filed a “motion to vacate and set aside a


1   All of the charges arose from a single incident on October 20, 2000.
                                                                                        -3-


statutorily void sentence” in both cases.2 With respect to Case No. 2001-CR-81, he

asserted that his offenses were subject to three years of post-release control and that the

court’s imposition of “up to five years” of post-release control was void. Hibbler asked

that the court’s 2001 order of post-release control be vacated and that he be resentenced.

On the same date (August 8), Hibbler filed a motion to revise and/or correct his judgment

entry in Case No. 2001-CR-81, claiming that the trial court had not imposed a final

appealable order. The motion also asserted, again, that the court erred in ordering up

to five years of post-release control.

       {¶ 5} On November 30, 2018, the trial court resolved both motions. The court

denied the motion to vacate the judgment as void ab initio, but granted the motion to

amend the judgment. The court agreed that it had erred in the imposition of post-release

control. The court ordered that the judgment be amended to read “post release control

is mandatory in this case [2001-CR-81] for a period of three years.”

       {¶ 6} On February 20, 2019, the trial court filed an “amended nunc pro tunc

judgment entry of conviction” addressing both cases (2000-CR-636 and 2001-CR-81).

The entry added language indicating that Hibbler had been found guilty by a jury after a

jury trial in both cases and modified the language regarding post-release control to read:

              The Court has further notified the defendant that post release control

       is mandatory in case 00-CR-0081 [sic] for a period of three years. In the

       event the defendant should violate any term or condition of post release



2 Because Hibbler’s notice of appeal cited only Case No. 2001-CR-81, the record in Case
No. 2000-CR-636 is not before us, and the filings in Case No. 2000-CR-636 are not
publicly available online. Hibbler’s appellate brief suggests that the motions in the two
cases were substantially similar.
                                                                                       -4-


      control, the post release control sanction could be extended to a maximum

      term of up to eight (8) years and a sentence could be imposed not to exceed

      nine (9) months for each violation where the total sentence for post release

      control violations cannot exceed one half of the total prison sentence

      imposed herein. Further, for any violation constituting a felony criminal

      offense, the defendant could receive an additional prison sentence in this

      case for that violation for one (1) year or the time left on the post release

      control whichever is greater, and that the same would be consecutive to the

      new felony sentence. The defendant is ordered to serve as part of this

      sentence any term of post release control imposed by the Parole Board,

      and any prison term for violation of that post release control.

             Post release control is not applicable to case 00-CR-0636. Any

      release prior to serving the life sentence would be subject to the parole laws

      of this State.

      {¶ 7} On March 4, 2019, the trial court filed another “amended nunc pro tunc

judgment entry of conviction,” which appears to be identical to the February 20, 2019

judgment entry.

      {¶ 8} Hibbler appeals from the trial court’s February 20, 2019 ruling as to Case No.

2001-CR-81. He did not file a notice of appeal in Case No. 2000-CR-636.

                  II. Amendment of Post-Release Control Obligation

      {¶ 9} Hibbler raises two assignments of error on appeal, which state:

      1. Does the trial court violate Crim.R. 43(A), or have jurisdiction to

      resentence the Defendant-Appellant John T. Hibbler, via Amended Nunc
                                                                                      -5-


      Pro Tunc Entry in case no. 01CR81, for the purpose of removing a

      mandatory up to 5 years post-release control sentence, regarding

      §2903.02(B) Felony Murder in a different case, i.e. 00CR-636, when the

      Appellant was sentenced in open court to up to 5 years in case no.

      00CR636?

      2. The trial court erred in amending the original sentencing entry from

      mandatory up to 5 years PRC to 3 years PRC in case no. 01CR-81, via

      Amended nunc pro tunc without conducting a resentencing hearing at which

      defendant-appellant had a right to be present, in violation of Crim.R. 43(A),

      and State v. Beasley, 2018 Ohio 493.

We will address these assignments of error together.

      {¶ 10} “Post-release control” involves a period of supervision by the Adult Parole

Authority after an offender’s release from prison that includes one or more post-release

control sanctions imposed under R.C. 2967.28. R.C. 2967.01(N). Post-release control

is mandatory for some offenses and is imposed at the discretion of the Parole Board for

others, depending on the nature and degree of the offense. R.C. 2967.28(B) and (C).

For a felony of the second degree that is not a felony sex offense, the required term of

post-release control is three years. R.C. 2967.28(B).

      {¶ 11} Individuals convicted of unclassified felonies, such as murder, are not

subject to post-release control. See, e.g., McCain v. Huffman, 151 Ohio St.3d 611,

2017-Ohio-9241, 91 N.E.3d 749, ¶ 3; State v. Lawrence, 2d Dist. Montgomery No. 24513,

2011-Ohio-5813, ¶ 6. Instead, when a person convicted of an unclassified felony is

released from prison, that person is subject to parole. State v. Clark, 119 Ohio St.3d
                                                                                             -6-


239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 36; R.C. 2967.13.

       {¶ 12} If a defendant has committed an offense subject to post-release control

under R.C. 2967.28, the trial court must notify the defendant at sentencing of the post-

release control requirement and the consequences if the defendant violates post-release

control. R.C. 2929.19; State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d

718, ¶ 18. It is well-established that when a judge fails to impose the required post-

release control as part of a defendant’s sentence, “that part of the sentence is void and

must be set aside.” (Emphasis sic.) State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,

942 N.E.2d 332, ¶ 26; see also State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014,

1 N.E.3d 382, ¶ 7. The improper post-release control sanction “may be reviewed at any

time, on direct appeal or by collateral attack.” Fischer at ¶ 27. However, res judicata

still applies to all other aspects of a conviction, including the determination of guilt and the

lawful elements of the sentence. Id. at ¶ 40; Boyd v. State, 2d Dist. Montgomery No.

27553, 2018-Ohio-108, ¶ 33.

       {¶ 13} Once a defendant has served the prison term for an offense for which post-

release control applies, the trial court no longer has the authority to resentence the

defendant for the purpose of adding a term of post-release control as a sanction for that

particular offense. Holdcroft at paragraph three of the syllabus. This is true even if the

defendant remains incarcerated on other charges. Id. at ¶ 18.

       {¶ 14} Under Fischer, the portions of Hibbler’s original judgment entries that

improperly imposed “up to a maximum of five years” of post-release control were void,

and the remainder of his sentences was valid.            The trial court chose to address

deficiencies in the original judgment entries by issuing an amended nunc pro tunc
                                                                                        -7-


judgment entry that addressed Case Nos. 2000-CR-636 and 2001-CR-81 together.

Although the trial court originally issued separate judgment entries for each case, nothing

precluded the trial court from filing an amended judgment entry addressing both cases

together.

      {¶ 15} Under the facts before us, the trial court did not err in removing the

erroneous post-release control requirement in Case No. 2000-CR-636 (murder) through

the February 20, 2019 “amended nunc pro tunc judgment entry” without a resentencing

hearing. See, e.g., State v. Ortiz, 2016-Ohio-4813, 68 N.E.3d 188, ¶ 13 (7th Dist.); State

v. Brister, 5th Dist. Guernsey No. 13 CA 21, 2013-Ohio-5874, ¶ 19. As the Supreme

Court recently explained in a case also involving the removal of the post-release control

sanction for a murder defendant by means of a nunc pro tunc judgment entry:

             The fact that [the trial judge] deleted a punishment [post-release

      control] distinguishes this case from cases in which punishment was added;

      in the latter situation, trial courts must hold a de novo resentencing hearing

      on the additional portion of the sentence. * * *

             But no resentencing hearing was required in the situation here,

      because the trial court simply deleted a postrelease-control provision that

      should not have been included in the initial sentence entry. * * *

(Emphasis sic.) State ex rel. Roberts v. Marsh, 156 Ohio St.3d 440, 2019-Ohio-1569, 128

N.E.3d 222, ¶ 10-11.

      {¶ 16} As with Roberts, the trial court in this case simply removed the post-release

control obligation for the murder conviction that should not have been imposed at the

original sentencing. Moreover, because the trial court was under no obligation to notify
                                                                                          -8-


Hibbler about parole supervision, the trial court was not required to hold a resentencing

hearing to inform Hibbler about parole. See, e.g., State v. Silguero, 10th Dist. Franklin

No. 11AP-274, 2011-Ohio-6293. Accordingly, the trial court did not err in deleting the

post-release control obligation in Case No. 2000-CR-636 through the February 20, 2019

judgment entry.

       {¶ 17} Hibbler’s first assignment of error is overruled.

       {¶ 18} The State agrees with Hibbler, however, that the trial court erred in imposing

a three-year post-release control obligation in Case No. 2001-CR-81 (attempted

aggravated burglary and improper discharge of a firearm) without a resentencing hearing.

       {¶ 19} Crim.R. 43(A)(1) requires a defendant’s physical presence at every stage

of the criminal proceeding, including the imposition of sentence. It is well established

that when post-release control is required but not properly imposed, the trial court must

conduct a limited resentencing hearing to properly impose post-release control. See

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at paragraph two of the

syllabus (“The new sentencing hearing to which an offender is entitled under State v.

Bezak is limited to proper imposition of postrelease control.”).

       {¶ 20} “Crim.R. 36(A) permits trial courts to correct clerical mistakes in judgments

or orders arising from oversight or omissions, using a nunc pro tunc entry.” State v.

Roach, 2d Dist. Montgomery No. 23317, 2010-Ohio-566, ¶ 3.

       The use of a nunc pro tunc entry is limited to reflecting what the court

       actually decided but failed to properly include in its judgment. Its sole

       function is to correct a clerical mistake in the execution of a ministerial act.

       “ ‘The term “clerical mistake” refers to a mistake or omission, mechanical in
                                                                                             -9-


       nature and apparent on the record, which does not involve a legal decision

       or judgment.’ ” Therefore, “ ‘[t]he function of nunc pro tunc [entries] is not

       to change, modify, or correct erroneous judgments, but merely to have the

       record speak the truth.’ ” “A nunc pro tunc entry cannot be used to change

       something that was deliberately done.”

(Citations omitted.) State v. Wolfe, 2d Dist. Montgomery Nos. 26681, 26729, 26983,

2016-Ohio-4897, ¶ 11. Accordingly, “[t]he imposition of a criminal sentence, simply put,

is not a clerical function subject to the use of a nunc pro tunc entry.” State v. Isa, 2d Dist.

Champaign Nos. 2017-CA-5 & 2017-CA-20, 2017-Ohio-8335, ¶ 26.

       {¶ 21} We agree with Hibbler and the State that the trial court improperly used a

nunc pro tunc entry to impose three years of post-release control for the attempted

aggravated burglary and the improper discharge of a firearm at or into a habitation

charges. We further agree that the proper remedy is to remand for a new sentencing

hearing limited to the imposition of post-release control on those charges.

       {¶ 22} Based on the record before us, it is unclear whether Hibbler will have

completely served his sentences for attempted aggravated burglary and/or improper

discharge of a firearm at or into a habitation prior to the new sentencing hearing. Nothing

in this opinion precludes Hibbler from asserting, if appropriate, that the trial court no longer

has authority to impose post-release control, in accordance with Holdcroft, 137 Ohio St.3d

526, 2013-Ohio-5014, 1 N.E.3d 382.

       {¶ 23} Hibbler’s second assignment of error is sustained.

                                       III. Conclusion

       {¶ 24} The trial court’s imposition of post-release control in Case No. 2001-CR-81
                                                                                         -10-


will be reversed, and the matter is remanded for resentencing on post-release control

only in that case. In all other respects, the trial court’s judgment will be affirmed.

                                      .............



DONOVAN, J. and HALL, J., concur.


Copies sent to:

John M. Lintz
John Hibbler
Hon. Richard J. O’Neill
