[Cite as State v. Persinger, 2018-Ohio-1076.]


                                        COURT OF APPEALS
                                     MORROW COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. John W. Wise, P.J.
        Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Craig R. Baldwin, J.
 -vs-                                           :
                                                :   Case No. 2017CA0007
                                                :
 GERRY H. PERSINGER                             :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Morrow County Court of
                                                    Common Pleas, Case No. 2008 CR
                                                    0086



JUDGMENT:                                           REVERSED AND REMANDED FOR
                                                    ISSUANCE OF NUNC PRO TUNC
                                                    ENTRY


DATE OF JUDGMENT ENTRY:                             March 22, 2018



APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 DAVID HOMER                                        GERRY A. PERSINGER, PRO SE
 Morrow Co. Asst. Prosecutor                        Marion Correctional Inst.
 60 East High St.                                   P.O. Box 57
 Mt. Gilead, OH 43338                               Marion, OH 43301



Delaney, J.
Morrow County, Case No. 2017CA0007                                                         2



       {¶1} Appellant Gerry H. Persinger appeals from the October 5, 2017 Judgment

Entry of the Morrow County Court of Common Pleas overruling his “motion for arrest of

judgment” and “motion to vacate void judgment.” Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} In 2008, appellant was convicted of four counts of unlawful sexual conduct

with a minor, all felonies of the second degree in violation of R.C. 2907.04. The trial court

imposed an aggregate prison term of 20 years. Appellant directly appealed from his

convictions and sentence, challenging the sufficiency of the indictment and the imposition

of court costs, and alleging ineffective assistance of counsel. We overruled appellant’s

three assignment of error, affirming the convictions and sentence. State v. Persinger, 5th

Dist. Morrow No. 08-CA-14, 2009-Ohio-5849, appeal not allowed, 124 Ohio St.3d 1402,

2009-Ohio-6825, 918 N.E.2d 1010, and reconsideration denied, 124 Ohio St.3d 1437,

2010 -Ohio- 207, 920 N.E.2d 369. Appellant’s petition for a writ of habeas corpus was

dismissed. Persinger v. Marion Correctional Institution, S.D.Ohio No. 2:15-CV-02653,

2015 WL 5999321, *1.

       {¶3} In 2012, appellant filed a petition for post-conviction relief which was

overruled. We dismissed appellant’s subsequent appeal because no brief was filed.

State v. Persinger, 5th Dist. Morrow No. 12-CA-11.

       {¶4} In 2014, appellant filed a motion to correct sentence which was overruled.

We dismissed appellant’s subsequent appeal as untimely. State v. Persinger, 5th Dist.

Morrow No. 14 CA 0001.

       {¶5} On May 3, 2017, appellant filed a “Motion to Arrest Judgment, Pursuant to

R.C. 2947.02(a)(b),” asserting the trial court had no jurisdiction over the offenses and that
Morrow County, Case No. 2017CA0007                                                           3


no public record exists of “the body of the crimes.” Appellee responded with a motion in

opposition. On August 28, 2017, appellant filed a “Motion to Vacate Void Judgment”

arguing the trial court failed to properly notify him of post-release control. Both motions

were overruled.

       {¶6} Appellant now appeals from the trial court’s Journal Entry of Judgment

dated October 5, 2017, overruling his motions for arrest of judgment and to vacate void

judgment.

       {¶7} Appellant raises one assignment of error:

                                ASSIGNMENT OF ERROR

       {¶8} “THE TRIAL COURT ERRED WHEN IT DENIED THE MOTION TO

VACATE VOID JUDGMENT FOR IMPROPERLY IMPOSING POST-RELEASE

CONTROL IN VIOLATION OF DUE PROCESS UNDER THE OHIO CONSTITUTION

ART. I SECT. 16 U.S. CONSTITUTION 14TH AMENDMENT.”

                                         ANALYSIS

       {¶9} Appellant argues the trial court was required to vacate the void judgment

for improperly imposing post-release control. We agree to the extent that we remand the

matter to the trial court with instructions to issue a nunc pro tunc entry properly stating the

duration of the post-release control period.

       {¶10} “[A] trial court must provide statutorily compliant notification to a defendant

regarding post release control at the time of sentencing, including notifying the defendant

of the details of the post release control and the consequences of violating post release

control.” State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18

(citations omitted). Further, “a trial court must incorporate into the sentencing entry the
Morrow County, Case No. 2017CA0007                                                        4


post release-control notice to reflect the notification that was given at the sentencing

hearing.” Id. at ¶ 19.

       {¶11} Because appellant was ultimately sentenced upon felony sex offenses, he

was subject to a five-year mandatory term of post-release control. See R.C.

2967.28(B)(1); R.C. 2929.19(B)(2)(c).

       {¶12} In the case of mandatory post-release control, the court at a sentencing

hearing must notify the offender that he or she “will” be supervised if the offender has

been convicted of a felony subject to mandatory post release control. R.C.

2929.19(B)(2)(c) and 2967.28(B). Additionally, at the sentencing hearing, the court must

notify the offender that if he or she “violates that supervision * * *, 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.” R.C. 2929.19(B)(2)(e).

       {¶13} Appellant has not provided a transcripts of the sentencing hearing, so we

presume the trial court's oral post-release control notifications were proper. State v.

Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 20, citing Natl. City Bank

v. Beyer, 89 Ohio St.3d 152, 160, 729 N.E.2d 711 (2000); State v. Moore, 5th Dist.

Muskingum No. CT2015-0027, 2015-Ohio-3435, ¶ 11, affirmed, 151 Ohio St.3d 276,

2017-Ohio-7851, 87 N.E.3d 1261.

       {¶14} In Grimes, supra, the Ohio Supreme Court identified what information the

sentencing entry must contain to validly impose post release control in cases in which the

trial court made the proper advisements at the sentencing hearing:

                         [T]he sentencing entry must contain the following information:

              (1) whether post release control is discretionary or mandatory, (2)
Morrow County, Case No. 2017CA0007                                                       5


             the duration of the post release-control period, and (3) a statement

             to the effect that the Adult Parole Authority (‘APA’) will administer the

             post release control pursuant to R.C. 2967.28 and that any violation

             by the offender of the conditions of post release control will subject

             the offender to the consequences set forth in that statute.

                    State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85

             N.E.3d 700, ¶ 1.

       {¶15} As appellee and the trial court recognized, the issue posed by this case is

the effect of the words “up to.” The trial court’s original sentencing entry of October 17,

2008 states the following regarding post-release control:

                    * * * *.

                    The Court has further notified [appellant] that post release

             control is mandatory in this case up to a maximum of (5) years, as

             well as the consequences for violating conditions of post release

             control imposed by the Parole Board under Revised Code Section

             2967.28. [Appellant] 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.       (Emphasis

             added).

                    * * * *.

       {¶16} We appreciate appellee’s concession that the duration of the post-release

control period is misstated and “up to” 5 years does not properly describe the duration of

the post-release control period. See, State v. Hall, 11th Dist. Ashtabula No. 2016-A-0069,
Morrow County, Case No. 2017CA0007                                                        6

2017-Ohio-4376, ¶ 25, appeal not allowed, 151 Ohio St.3d 1428, 2017-Ohio-8371, 84

N.E.3d 1065 [“up to” is discretionary language and does not state a definite term].

       {¶17} This is not a case, however, in which the trial court failed to mention post-

release control at all in the sentencing entry; appellant was notified he was subject to a

mandatory term of post release control. Grimes, supra, 2017-Ohio-2927 at ¶ 14 [“In this

case, as in Qualls, Grimes does not dispute that he was notified at the sentencing hearing

that he would be subject to post release control * * * * so we conclude that the court

accomplished the primary purpose of notice”]. We find this is a case in which the essential

purpose of notice has been fulfilled, there is no need for a new sentencing hearing to

remedy the flaw, and 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 appellant’s completion of his prison term. Qualls,

supra, 2012-Ohio-1111 at ¶ 24. In the entry from which appellant appealed, the trial court

in fact suggested this remedy but the appeal intervened.

       {¶18} We therefore sustain appellant’s sole assignment of error to the extent that

we remand this matter to the trial court for preparation of a nunc pro tunc entry reflecting

that the mandatory duration of post release control is five years.




                                      CONCLUSION
Morrow County, Case No. 2017CA0007                                               7


       {¶19} Appellant’s sole assignment of error is sustained, the judgment of the

Morrow County Court of Common Pleas is reversed, and this matter is remanded to the

trial court for preparation of a nunc pro tunc entry as described herein.

By: Delaney, J.,

Wise, John, P.J. and

Baldwin, J., concur.
