[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.
