[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Ware, Slip Opinion No. 2014-Ohio-5201.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-5201
             THE STATE OF OHIO, APPELLANT, v. WARE, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Ware, Slip Opinion No. 2014-Ohio-5201.]
Prisoner is not eligible for judicial release when is entire prison sentence is
        mandatory pursuant to statute.
(No. 2014-0425—Submitted September 10, 2014—Decided November 26, 2014.)
              CERTIFIED by the Court of Appeals for Portage County,
                         No. 2013-P-0011, 2013-Ohio-5833.
                              ______________________
        FRENCH, J.
        {¶ 1} R.C. 2929.20, Ohio’s judicial-release statute, allows certain
offenders to apply for early release from prison. In this appeal, we conclude that
appellee, Shawn Ware, was not eligible for judicial release, because his entire
prison sentence was mandatory. Although the trial court later expressed its intent
to impose a different sentence that would have allowed Ware to apply for early
release, the court did not impose that sentence, nor could it have done so under
Ohio law.
                                SUPREME COURT OF OHIO




                                        Background
        {¶ 2} In March 2010, Ware pleaded guilty to two counts of trafficking in
crack cocaine in violation of R.C. 2925.03(A)(2).1 One count was a second-
degree felony, because it involved crack cocaine weighing between 10 and 25
grams. R.C. 2925.03(C)(4)(e). The other count was a fourth-degree felony,
because it occurred in the vicinity of a juvenile. R.C. 2925.03(C)(4)(b). In
exchange for the guilty plea, appellant, the state of Ohio, dismissed the remaining
five felony counts.
        {¶ 3} Ware’s second-degree felony carried a mandatory prison term—a
fact Ware acknowledged when he pleaded guilty. The law in effect at the time
required the sentencing court to “impose as a mandatory prison term one of the
prison terms prescribed for a felony of the second degree.”                               R.C.
2925.03(C)(4)(e). The prison terms prescribed for a second-degree felony are
“two, three, four, five, six, seven, or eight years.” R.C. 2929.14(A)(2). In his
written guilty plea, Ware acknowledged that his second-degree felony carried a
mandatory prison term, and that “the prison term the judge imposes will be the
term served.”
        {¶ 4} At the April 2010 sentencing hearing, the trial court reminded
Ware that his second-degree felony carried “mandatory time.” It then imposed a
four-year prison term for that offense, to run concurrently with an 18-month
prison term for Ware’s fourth-degree felony, for a total prison term of four years.
After announcing its sentence, however, the trial court concluded the hearing by
telling Ware that, if he “change[d] [his] life around while in prison,” his attorney
“may petition * * * for a judicial release when it’s appropriate.” The trial court’s

1
  The General Assembly has since amended R.C. 2925.03 to eliminate the distinction between
crack and powder cocaine. See 2011 Am.Sub.H.B. No. 86, effective September 30, 2011. All
references to R.C. 2925.03 in this opinion are to the version of the statute in effect when Ware
committed the offenses: former R.C. 2925.03, 2008 Sub.H.B. No. 195, effective September 30,
2008.




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                                January Term, 2014




sentencing entry incorporated Ware’s four-year prison term, but did not refer to
the term as mandatory.
       {¶ 5} Beginning in November 2010, Ware began filing motions for
judicial release. After the trial court denied his first motion, Ware filed a second,
arguing that he was eligible for release before the expiration of his four-year term
because the original sentencing entry did not indicate that his four-year term was
mandatory. Relying on the trial court’s reference at the end of the sentencing
hearing to judicial release, Ware argued that the trial court “impliedly intended
the mandatory prison time for the offense to constitute two years.”
       {¶ 6} The trial court did not rule on the motion, but instead issued a nunc
pro tunc entry, which referred to Ware’s four-year prison term as “mandatory.”
Ware withdrew his pending motion.
       {¶ 7} On October 26, 2012, Ware filed a third motion for judicial
release, arguing that the original sentencing entry imposed only a “minimum
mandatory sentence of two (2) years.” After a hearing in February 2013, at which
the state objected to Ware’s early release, the trial court granted the motion and
released Ware under intensive supervision for one year followed by general
supervision for 48 months.
       {¶ 8} Two days after it entered the final judgment granting Ware’s
release, the trial court held a “status hearing” to further explain its ruling. The
trial court stated that it had not intended to make all four years of Ware’s sentence
mandatory: “My idea was if the mandatory minimum in a certain charge is two
years and I gave you four, that you would be eligible after the two year period
because that was the mandatory minimum.”
       {¶ 9} The state appealed the judgment granting Ware’s release and
argued that Ware was ineligible for judicial release under R.C. 2929.20 because
his entire four-year prison term was mandatory. The court of appeals agreed that
Ware’s “entire four-year sentence was mandatory,” but stated that the trial court




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had intended to impose a “hybrid” prison term that was mandatory for only two of
the four years. 11th Dist. Portage No. 2013-P-0011, 2013-Ohio-5833, ¶ 24, 44,
54. Based on the trial court’s postjudgment statements at the 2013 status hearing,
the court of appeals remanded the case with instructions for the trial court to issue
a nunc pro tunc entry that “correctly states the nature of the sentence the court
intended to impose for the second-degree trafficking offense: i.e., a total stated
prison term of four years, only two of which are mandatory.” Id. at ¶ 54.
       {¶ 10} The Eleventh District certified that its judgment was in conflict
with the Third District’s judgment in State v. Thomas, 3d Dist. Allen No. 1-04-88,
2005-Ohio-4616. In Thomas, the Third District held that the mandatory prison
term in R.C. 2925.11(C)(4)(3) is mandatory for the “full length” of the term. Id.
at ¶ 8. We certified that there is a conflict over the following question:


               When the imposition of a mandatory prison term is
       statutorily-mandated for a specific felony offense, is the trial court
       permitted to impose a total prison term within the maximum
       allowed, only a portion of which is mandatory under the statute?


138 Ohio St.3d 1491, 2014-Ohio-2021, 8 N.E.3d 962.
                                      Analysis
       {¶ 11} Ohio law provides that a prisoner cannot apply for judicial release
until a period of time “after the expiration of all mandatory prison terms” in the
stated prison sentence. R.C. 2929.20(C)(1), (2), (3), and (4). The question here is
whether Ware could ever apply for judicial release. He could not. All four years
of his prison sentence were mandatory, and the trial court could not change this
result by later expressing its intent to impose a different “hybrid” sentence.
       {¶ 12} It bears repeating that judicial release is a privilege, not an
entitlement.   “ ‘There is no constitutional or inherent right * * * to be



                                          4
                                 January Term, 2014




conditionally released before the expiration of a valid sentence.’ ” State ex rel.
Hattie v. Goldhardt, 69 Ohio St.3d 123, 125, 630 N.E.2d 696 (1994), quoting
Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7, 99
S.Ct. 2100, 60 L.Ed.2d 668 (1979). Courts have no inherent power to suspend
execution of a sentence, and they must strictly construe statutes allowing such
relief. State v. Smith, 42 Ohio St.3d 60, 61, 537 N.E.2d 198 (1989).
        {¶ 13} In this case, Ware’s second-degree felony was statutorily ineligible
for judicial release from the very beginning.         When he pleaded guilty, the
punishment was clear: “the court shall impose as a mandatory prison term one of
the prison terms prescribed for a felony of the second degree.” (Emphasis added.)
R.C. 2925.03(C)(4)(e). Under this statute, prison was mandatory—and judicial
release therefore impossible—for the length of whichever “one of the prison
terms” the trial court imposes for a second-degree felony, whether the term is
“two, three, four, five, six, seven, or eight years.” R.C. 2925.03(C)(4)(e) and
2929.14(A)(2).       More to the point is R.C. 2929.13(F)(5), which specifically
prohibits judicial release for a second-degree-felony drug offense for which R.C.
2925.03 “requires the imposition of a mandatory prison term.” For such offenses,
the court “shall impose a prison term” and “except as specifically provided [by
statute] shall not reduce the term * * * pursuant to section 2929.20.” R.C.
2929.13(F)(5).
        {¶ 14} The trial court did not change this result at sentencing. It imposed
a four-year prison term, and that entire prison term was mandatory by operation of
law. See R.C. 2925.03(C)(4)(e) and 2929.13(F)(5). Even if it wanted to grant
judicial release in the future, R.C. 2929.13(F)(5) explicitly prohibited it from
doing so. See State v. Taylor, 113 Ohio St.3d 297, 2007-Ohio-1950, 865 N.E.2d
37, ¶ 11 (noting that a mandatory prison term precludes the opportunity for
judicial release).




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                             SUPREME COURT OF OHIO




       {¶ 15} The court of appeals agreed that Ware’s “entire four-year sentence
was mandatory,” 2013-Ohio-5833, ¶ 24, and its analysis should have ended there.
But rather than find Ware ineligible for judicial release, the court of appeals
remanded for the trial court to issue a nunc pro tunc entry imposing the prison
sentence that it had “intended,” that is, a “hybrid” sentence in which only two
years would be mandatory. Id. at ¶ 44, 54.
       {¶ 16} There are several problems with this analysis, starting with the
court of appeals’ focus on the prison sentence the trial court “intended” instead of
the one it actually imposed.     Only the latter is relevant in a judicial-release
analysis. The trial court never imposed or purported to impose a hybrid sentence
at the sentencing hearing or in its sentencing entry, and it did not announce a
subjective intent to do so until the 2013 status hearing—years after it sentenced
Ware and days after it entered the final judgment underlying this appeal. This
hitherto unknown intent is inappropriate for a nunc pro tunc entry. A nunc pro
tunc entry reflects what a court “actually decided, not what the court might or
should have decided or what the court intended to decide.” State ex rel. Fogle v.
Steiner, 74 Ohio St.3d 158, 164, 656 N.E.2d 1288 (1995).
       {¶ 17} Regardless, such a hybrid sentence would have been legally
impossible. No sentencing statute allows a court to divide a singular “mandatory
prison term” into a hybrid of mandatory and discretionary sub-terms.           R.C.
2925.03(C)(4)(e) unambiguously requires a unitary “prison term” that is
“mandatory,” and R.C. 2929.13(F)(5) instructs that a court “shall not reduce” that
term through judicial release. To override these legislative commands would
require judicial improvisation in a legal system in which “[c]rimes are statutory,
as are the penalties therefor, and the only sentence which a trial court may impose
is that provided for by statute.” Colegrove v. Burns, 175 Ohio St. 437, 438, 195
N.E.2d 811 (1964).     The trial court had “no power to substitute a different
sentence for that provided for by statute.” Id.



                                          6
                                January Term, 2014




       {¶ 18} Ware argues that the state cannot challenge his release because it
did not object to his sentence at the sentencing hearing. There was nothing
objectionable at sentencing from the state’s perspective, however. The trial court
imposed a four-year prison term that was mandatory by operation of law and did
not allow for early release. Although the trial court mistakenly referred to a
possibility of judicial release at the end of the hearing, the misstatement was
exactly that—a misstatement. It did not implicitly change Ware’s sentence, or
place his mandatory prison term into some default “hybrid” status. If Ware
believed that the misstatement revealed intent to impose a different sentence, it
was his duty to raise the issue at sentencing or in a direct appeal.
       {¶ 19} It is also irrelevant that the original sentencing entry did not refer
to the four-year term as “mandatory.” The trial court used the term “mandatory”
in its subsequent nunc pro tunc entry, and even if it had not, Ware’s prison term
still would have been mandatory. R.C. 2929.19(B)(7) says that “[t]he failure of
the court to notify the offender that a prison term is a mandatory prison term * * *
or to include [that fact] in the sentencing entry * * * does not affect the validity of
the imposed sentence or sentences.”           Even still, the omission of the word
“mandatory” does not imply the inclusion of a legally impossible hybrid sentence.
       {¶ 20} In the end, Ware did not qualify for judicial release under R.C.
2929.20.    Although the court of appeals considers this result “inequitable,”
because the trial court intended a different sentence than it imposed, 2013-Ohio-
5833, ¶ 33, we reiterate that notions of equity do not empower courts to reopen
final judgments without statutory authorization. State ex rel. Chalfin v. Glick, 172
Ohio St. 249, 252, 175 N.E.2d 68 (1961).           “Clemency is a function of the
Executive branch and the courts are without authority to free guilty defendants
absent a specific legislative enactment.” State v. Beasley, 14 Ohio St.3d 74, 76,
471 N.E.2d 774 (1984).




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                            SUPREME COURT OF OHIO




                                   Conclusion
       {¶ 21} In summary, we answer the certified question in the negative and
reverse the judgment of the court of appeals.
                                                           Judgment reversed.
       O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and O’NEILL,
JJ., concur.
       PFEIFER, J. concurs in judgment only.
                      ______________________________
       Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela J.
Holder, Assistant Prosecuting Attorney, for appellant.
       Kane & Kane and Terry G. P. Kane, for appellee.
       Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven
DiMartino, Assistant Prosecuting Attorney, urging reversal for amicus curiae,
Ohio Prosecuting Attorneys Association.
                      ______________________________




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