[Cite as State v. Pelfrey, 2013-Ohio-593.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       SCIOTO COUNTY

                                                  :
STATE OF OHIO,                                    :
                                                  :         Case No: 11CA3418
             Plaintiff-Appellee,                  :
                                                  :
             v.                                   :
                                                  :         DECISION AND
JOSEPH PELFREY,                                   :         JUDGMENT ENTRY
                                                  :
             Defendants-Appellants.               :         RELEASED 01/29/13


                                             APPEARANCES:

Joseph Pelfrey, Chillicothe, Ohio, pro se Appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, Portsmouth, Ohio, for Appellee.


Kline, J.:

        {¶1}      Joseph Pelfrey (hereinafter “Pelfrey”) appeals the judgment of the Scioto

County Court of Common Pleas, which denied his motion for a de novo sentencing

hearing. On appeal, Pelfrey contends that he is entitled to a de novo sentencing

hearing because his judgment of conviction does not properly impose postrelease

control. We disagree. Because Pelfrey was properly notified of postrelease control at

his joint-change-of-plea-and-sentencing hearing, the trial court may correct Pelfrey’s

judgment of conviction in a nunc pro tunc entry. Accordingly, we remand this cause to

the trial court for that limited purpose.

                                                  I.

        {¶2}      A Scioto County Grand Jury returned a multiple-count indictment against

Pelfrey. Initially, he pled not guilty to the charges. But following plea negotiations,
Scioto App. No. 11CA3418                                                          2


Pelfrey agreed to plead guilty to (1) aggravated robbery, (2) having weapons while

under disability, and (3) a firearm specification.

       {¶3}   During Pelfrey’s joint-change-of-plea-and-sentencing hearing, the trial

court provided the following notification about postrelease control:

                     Post release control is mandatory in this case and the

              period of time will be five years, but you will enter into an

              agreement with the parole authority on how you are to

              conduct your life and if you violate that agreement certain

              things could happen. You could spend time in the County

              Jail, the agreement could be modified and become more

              restrictive upon your life style, the period of time you’re on it

              could be increased to a maximum of five years or ultimately

              for a violation the parole authority could send you back to

              prison but for no more than half of your original sentence.

                     In addition the law also provides if a person is on post

              release control and they commit a new felony the sentencing

              court, in addition to any time imposed for the new felony, can

              also revoke post release control and can sentence a person

              back to prison for the greater of one year or the remaining

              time a person has under post release control. Transcript at

              4-5.

       {¶4}   Pelfrey’s judgment of conviction, however, contains only the following

postrelease-control language:
Scioto App. No. 11CA3418                                                            3


              Post Release Control is:

              [X] MANDATORY

              [ ] OPTIONAL

              For a term 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. 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.

Thus, unlike the notification at the joint-change-of-plea-and-sentencing hearing,

Pelfrey’s judgment of conviction does not contain specific details of what may happen if

he violates the conditions of postrelease control.

       {¶5}   On September 10, 2010, Pelfrey filed a pro se motion for “de novo

sentencing.” Pelfrey argued that his judgment of conviction does not properly impose

postrelease control and, as a result, that his sentence is void. The trial court, however,

denied Pelfrey’s motion for de novo sentencing.

       {¶6}   Pelfrey appeals and asserts the following assignment of error: “The Trial

Court Erred When It Denied Defendant A De Novo Re-Sentencing To Correct A Void

Sentence.”

                                             II.

       {¶7}   In his sole assignment of error, Pelfrey contends that his judgment of

conviction does not properly impose postrelease control. As a result, Pelfrey argues

that he is entitled to a de novo sentencing hearing. We disagree. Because Pelfrey was
Scioto App. No. 11CA3418                                                            4


properly notified of postrelease control at the joint-change-of-plea-and-sentencing

hearing, the trial court may correct Pelfrey’s judgment of conviction in a nunc pro tunc

entry. (Pelfrey does not dispute that he was properly notified of postrelease control

during the hearing. Rather, Pelfrey bases his argument solely on the language found in

the judgment of conviction.)

       {¶8}   To resolve Pelfrey’s appeal, “we must interpret and apply the statutes

related to postrelease control and parole. Thus, our review is de novo.” State v. Lofton,

4th Dist. No. 11CA16, 2012-Ohio-2274, ¶ 7, citing State v. Jenkins, 4th Dist. No.

10CA3389, 2011-Ohio-6924, ¶ 9.

       {¶9}   Under R.C. 2929.19(B)(2), a sentencing court must

              notify an offender about several aspects of postrelease

              control, including that “if a period of supervision is imposed

              following the offender’s release from prison * * * and if the

              offender 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.” (Omissions sic.) State v. Smith, 2012-Ohio-2728,

              972 N.E.2d 646, ¶ 5 (1st Dist.), quoting R.C.

              2929.19(B)(2)(e).

       {¶10} Significantly, the Supreme Court of Ohio has held that,

              where notification was properly given at the sentencing

              hearing, there is no substantive prejudice to a defendant if

              the sentencing entry’s failure to mention postrelease control
Scioto App. No. 11CA3418                                                             5


               is remedied through a nunc pro tunc entry. Our precedents

               requiring a new sentencing hearing (either de novo or

               limited) to correctly impose postrelease control do not apply

               to this situation. The rationale underlying those decisions is

               that a sentence that does not properly impose postrelease

               control is void, and a remand for a new sentencing hearing is

               necessary, because the trial court’s erroneous imposition of

               postrelease control must be corrected in a new hearing at

               which the defendant is present to receive notification that

               complies with the statutes. State v. Qualls, 131 Ohio St.3d

               499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 23.

       {¶11} Here, Pelfrey was notified of postrelease control at a joint-change-of-plea-

and-sentencing hearing. And based on the language quoted in paragraph 3 of this

opinion, we find that the trial court provided a proper notification of postrelease control.

Furthermore,

               [b]ecause appellant’s plea and sentencing occurred together

               at the same hearing, at the same time, we find no reason to

               segregate the separate portions of the hearing into two

               discrete and distinct hearings. The trial court informed

               [Pelfrey] that if he was sentenced to prison, post-release

               control would be part of his sentence, then proceeded to

               sentence him to prison. State v. Jackson, 12th Dist. Nos.

               CA2005-02-033 & CA2005-03-051, 2006-Ohio-1147, ¶ 18.
Scioto App. No. 11CA3418                                                            6


       {¶12} Nevertheless, we agree that Pelfrey’s judgment of conviction does not

contain a proper notification of postrelease control. We encountered a very similar fact

pattern in State v. Harris, 4th Dist. No. 11CA15, 2012-Ohio-2185. As is the case here,

the defendant in Harris was properly notified of postrelease control at the sentencing

hearing. And as is the case here, “the trial court’s sentencing entry failed to state that

the parole board could impose up to one-half of [Appellant’s] originally-imposed prison

term if he violated post-release control.” Id. at ¶ 8. Therefore, in Harris, we held the

following:

              Although we agree with [Appellant] that the trial court did not

              comply with the sentencing entry notification regarding the

              “up to one-half” prison term for violating post-release control,

              we do not agree that this failure entitles [Appellant] to a de

              novo sentencing hearing. An offender is entitled to a new

              sentencing hearing only when the trial court failed to provide

              the statutorily required notification at the sentencing hearing.

              Qualls at ¶ 24 (stating that “when the notification of

              postrelease control was properly given at the sentencing

              hearing, the essential purpose of notice has been fulfilled

              and there is no need for a new sentencing hearing to remedy

              the flaw”). If the trial court provided the proper notifications

              at the sentencing hearing but failed to carry over those

              notifications to its sentencing entry, the proper remedy is for

              the trial court to enter a nunc pro tunc entry. Id. at ¶ 15. A
Scioto App. No. 11CA3418                                                          7


              trial court may use a nunc pro tunc entry to correct a failure

              to include in its sentencing entry a post-release control

              notification that it properly provided at the sentencing

              hearing but failed to incorporate into the sentencing entry.

              Id. Thus, “when a defendant is notified about postrelease

              control at the sentencing hearing, but notification is

              inadvertently omitted from the sentencing entry, the omission

              can be corrected with a nunc pro tunc entry and the

              defendant is not entitled to a new sentencing hearing.” Id. at

              [¶] 30. Under these circumstances, we may either remand

              the matter to the trial court so that it may correct its

              sentencing entry or correct the entry ourselves. See [State

              v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d

              332,] at ¶¶ 29-30 (stating that “[c]orrecting a defect in a

              sentence without a remand is an option” when trial court

              “does not impose postrelease control in accordance with

              statutorily mandated terms”); [State v. Triplett, 4th Dist. No.

              10CA35, 2011-Ohio-4628,] at ¶ 6 (noting that appellate court

              “authorized to correct certain errors without remanding for

              resentencing”). Here, we think the better practice would be

              to remand this matter to the trial court for the limited purpose

              of correcting its sentencing entry to specifically state that the

              parole board may impose up to one-half of [Appellant’s]
Scioto App. No. 11CA3418                                                           8


              originally-imposed prison term if he violates post-release

              control. Because [Appellant] has not disputed that the trial

              court provided the statutorily mandated notice at the

              sentencing hearing, the trial court need not hold another

              sentencing hearing. (Internal footnote omitted.) Harris at ¶

              9.

       {¶13} We apply the reasoning of Harris to the present case. Therefore, as we

did in Harris, “we sustain [Pelfrey’s] assignment of error to the limited extent discussed

and remand to the trial court so that it may enter a nunc pro tunc entry that incorporates

the required language into its sentencing entry.” Id. at ¶ 10.

                                                                      CAUSE REMANDED.
Scioto App. No. 11CA3418                                                            9


                                   JUDGMENT ENTRY

         It is ordered that the CAUSE IS REMANDED and that the Appellee shall pay the
costs.

         The Court finds that there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.

Harsha, J. & Abele, J.: Concur in Judgment & Opinion.



                                    For the Court


                                    BY:_____________________________
                                       Roger L. Kline, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
