[Cite as State v. Ewers, 2011-Ohio-1354.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Julie A. Edwards, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 10CAA090081
RACHEL EWERS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Delaware County Court of
                                               Common Pleas, Case Nos. 07 CRI 05258
                                               and 07 CRI 06323


JUDGMENT:                                       Reversed and Remanded


DATE OF JUDGMENT ENTRY:                         March 21, 2011


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


BRIAN J. WALTER                                O. ROSS LONG
Assistant Prosecuting Attorney                 125 North Sandusky Street
Delaware County Prosecutor's Office            Delaware, Ohio 43015
140 North Sandusky Street
Delaware, Ohio 43015
Delaware County, Case No. 10CAA090081                                                      2

Hoffman, P.J.


      {¶1}   Defendant-appellant Rachel Ewers appeals the September 17, 2010

Second Nunc Pro Tunc Judgment Entry On Sentence entered by the Court of Common

Pleas of Delaware County. The State of Ohio is plaintiff-appellee.

                                 STATEMENT OF THE CASE1

      {¶2}   On October 11, 2007, the trial court sentenced Appellant on three counts

of Endangering Children.     On July 15, 2010, the trial court filed a Nunc Pro Tunc

Judgment Entry On Sentence to comply with State v. Baker, 119 Ohio St.3d 1197. In

the later entry, the trial court also corrected a part of its original sentence to specify

Appellant shall be subject to a mandatory period of post-release control of three years.

      {¶3}   Thereafter, Appellant filed a Motion to Restore Resentencing and Motion

for Jail Time Credit.   The trial court denied said motion via Judgment Entry filed

September 17, 2010, and stated therein the basis of its amended entry dated July 15,

2010, regarding post release control was to comply with R.C. 2929.191(A)(1).

Thereafter, the trial court entered its Second Nunc Pro Tunc Judgment Entry On

Sentence which is the subject of the instant appeal.

      {¶4}   Appellant assigns as error:

      {¶5}   “I. THE TRIAL COURT ERRED IN NOT HOLDING A DE NOVO RE-

SENTENCING HEARING FOR THE APPELLANT IN THIS CASE.”

      {¶6}   Herein, Appellant maintains the trial court erred in resentencing her

pursuant to R.C. 2929.191(A)(1) rather than conducting a de novo resentencing hearing



1
  A rendition of the underlying facts is unnecessary for our disposition of Appellant’s
sole assignment of error.
Delaware County, Case No. 10CAA090081                                                     3


as provided in R.C. 2929.191(C). The State concedes Appellant’s sentence cannot be

corrected by the [SECOND] nunc pro tunc entry because Appellant was originally

sentenced after July 11, 2006, the effective date of R.C. 2929.191.2 We agree.

         {¶7}   Appellant’s sole assignment of error is sustained. The judgment of the trial

court is reversed and the matter remanded for resentencing.

By: Hoffman, P.J.

Edwards, J. and

Delaney, J. concur

                                               s/ William B. Hoffman_________________
                                               HON. WILLIAM B. HOFFMAN


                                               s/ Julie A. Edwards___________________
                                               HON. JULIE A. EDWARDS


                                               s/ Patricia A. Delaney _________________
                                               HON. PATRICIA A. DELANEY




2
    See Appellee’s Brief at p.4.
Delaware County, Case No. 10CAA090081                                                    4


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
RACHEL EWERS                                :
                                            :
       Defendant-Appellant                  :         Case No. 10CAA090081


       For the reason stated in our accompanying Opinion, the September 17, 2010

Second Nunc Pro Tunc Judgment Entry On Sentence is reversed and the matter

remanded to the trial court for further proceedings in accordance with our Opinion and

the law.




                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Julie A. Edwards___________________
                                            HON. JULIE A. EDWARDS


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY
