[Cite as State v. Hempfield, 2012-Ohio-2619.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Julie A. Edwards, J.
-vs-
                                                   Case No. 11-CA-103
BRITTANY A. HEMPFIELD

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Licking County Court of
                                                Common Pleas, 10 CR 150


JUDGMENT:                                       Affirmed in part, Reversed in part, and
                                                Remanded


DATE OF JUDGMENT ENTRY:                         June 11, 2012


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


BRIAN T. WALTZ                                  DAVID B. STOKES
Assistant Prosecuting Attorney                  21 W. Church St, Suite 206
Licking County Prosecutor's Office              Newark, Ohio 43055
20 S. Second St., 4th Floor
Newark, Ohio 43055
Licking County, Case No. 11-CA-103                                                       2

Hoffman, J.


       {¶1}   Defendant-appellant Brittany A. Hempfield appeals the September 26,

2011 Judgment Entry entered by the Licking County Court of Common Pleas denying

her petition for post-conviction relief. Plaintiff-appellee is the State of Ohio.

                            STATEMENT OF THE CASE AND FACTS

       {¶2}   On March 26, 2010, the Licking County Grand Jury indicted Appellant

Brittany Hempfield on two counts of aggravated trafficking in drugs, in violation of R.C.

2925.03(A)(1) and/or (2) and (C)(1)(b) and/or (c); one count of aggravated possession

of drugs, in violation of R.C. 2925.11(A) and/or (C)(1)(a); and one count of possession

of drug paraphernalia, in violation of R.C. 2925.14.

       {¶3}   On July 23, 2010, Appellant pled guilty as charged save for the drug

paraphernalia count which was dismissed. By Judgment Entry filed the same date, the

trial court sentenced Appellant to an aggregate term of six years in prison.

       {¶4}   Appellant filed an appeal with this Court challenging her convictions and

sentence. Via Opinion and Judgment Entry of December 30, 2010, this Court affirmed

Appellant's convictions and sentence.

       {¶5}   On August 19, 2011, Appellant filed a petition for post-conviction relief.

Via Judgment Entry of September 26, 2011, the trial court denied Appellant's petition.

       {¶6}   It is from that Judgment Entry Appellant prosecutes this appeal, assigning

as error:

       {¶7}   “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN FINDING

THAT APPELLANT’S POST-CONVICTION PETITION WAS UNTIMELY, PER R.C.

2953.21(A)(2).
Licking County, Case No. 11-CA-103                                                        3


       {¶8}   “II. THE TRIAL COURT COMMITTED HARMFUL ERROR BY NOT

FINDING THAT THE JUDGMENT ENTRY FILED JULY 23, 2010 WAS VOID.

       {¶9}   “III.   THE   TRIAL    COURT       COMMITTED     HARMFUL       ERROR      BY

ORDERING, IN ITS SENTENCING ENTRY, THAT APPELLANT SHALL NOT BE

CONSIDERED OR RELEASED ON TRANSITIONAL CONTROL.

       {¶10} “IV. THE TRIAL COURT COMMITTED HARMFUL ERROR BY DENYING

APPELLANT’S MOTIONS(S) TO WITHDRAW HER GUILTY PLEAS.”

                                                     I.

       {¶11} In the first assignment of error, Appellant asserts the trial court erred in

finding her petition for post-conviction relief untimely.

       {¶12} Ohio Revised Code Section 2953.21 states, in pertinent part,

       {¶13} "(2) Except as otherwise provided in section 2953.23 of the Revised Code,

a petition under division (A)(1) of this section shall be filed no later than one hundred

eighty days after the date on which the trial transcript is filed in the court of appeals in

the direct appeal of the judgment of conviction or adjudication or, if the direct appeal

involves a sentence of death, the date on which the trial transcript is filed in the

supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of

the Revised Code, the petition shall be filed no later than one hundred eighty days after

the expiration of the time for filing the appeal."

       {¶14} The trial court's September 26, 2011 Judgment Entry finds Appellant's

petition for post-conviction relief untimely, pursuant to R.C. 2953.21. Appellant asserts

the petition is timely as the trial court had failed to rule on her Appellate Rule 9(C)
Licking County, Case No. 11-CA-103                                                      4


statement filed on August 4, 2010, during her prior direct appeal. Neither did the trial

court rule on Appellant's July 23, 2010 motion to withdraw her guilty pleas.1

      {¶15} Appellant has not set forth legal authority, whether case law, statutory or

legal rule recognizing the tolling of the time parameters for filing a petition for

postconviction relief where the trial court has not ruled on a request for an Appellate

Rule 9(c) statement but the appeal was concluded.           Appellant failed to take the

necessary steps to perfect the Appellate Rule 9(c) statement prior to submission of the

record on her initial direct appeal. The proper remedy would have been to seek a ruling

from this Court directing the trial court to rule on the same, or, perhaps, file a writ of

mandamus.

      {¶16} The first assignment of error is overruled.

                                               II.

      {¶17} In the second assignment of error, Appellant asserts the trial court erred in

not finding the July 23, 2010 sentencing entry void. Specifically, Appellant asserts the

trial court failed to impose a mandatory license suspension pursuant to R.C.

2925.03(D)(2) and R.C. 2935.03(G).

      {¶18} The statute reads, in pertinent part:

      {¶19} "(D) In addition to any prison term authorized or required by division (C) of

this section and sections 2929.13 and 2929.14 of the Revised Code, and in addition to

any other sanction imposed for the offense under this section or sections 2929.11 to

2929.18 of the Revised Code, the court that sentences an offender who is convicted of




1
 In the prior appeal, this Court held the issues involving Appellant’s motion to withdraw
her guilty pleas were "premature".
Licking County, Case No. 11-CA-103                                                         5


or pleads guilty to a violation of division (A) of this section shall do all of the following

that are applicable regarding the offender:

       {¶20} "***

       {¶21} (2) The court shall suspend the driver's or commercial driver's license or

permit of the offender in accordance with division (G) of this section.

       {¶22} "***

       {¶23} (G) When required under division (D)(2) of this section or any other

provision of this chapter, the court shall suspend for not less than six months or more

than five years the driver's or commercial driver's license or permit of any person who is

convicted of or pleads guilty to any violation of this section or any other specified

provision of this chapter. If an offender's driver's or commercial driver's license or permit

is suspended pursuant to this division, the offender, at any time after the expiration of

two years from the day on which the offender's sentence was imposed or from the day

on which the offender finally was released from a prison term under the sentence,

whichever is later, may file a motion with the sentencing court requesting termination of

the suspension; upon the filing of such a motion and the court's finding of good cause

for the termination, the court may terminate the suspension."

       {¶24} Appellant entered a plea of guilty to, and was convicted of, aggravated

trafficking in drugs, methamphetamine, in violation of R.C. 2925.03(A)(1)(C)(1)(b), a

third degree felony; aggravated trafficking in drugs, methamphetamine, in violation of

R.C. 2925.03(A)(1) and/or (2)(C)(1)(c), a third degree felony. The trial court did not

suspend Appellant's license at sentencing. Accordingly, the matter is remanded to the

trial court for a limited resentencing hearing limited to the imposition of the mandatory
Licking County, Case No. 11-CA-103                                                         6


license suspension.    For an analogous situation involving post release control see,

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. We find the entire sentence is

not void.

       {¶25} The second assignment of error is overruled.

                                                III.

       {¶26} In the third assignment of error, Appellant asserts the trial court erred in

ordering Appellant should not be considered or released to transitional control.

       {¶27} R.C. 2967.26 allows for the creation of a transitional control program for

those nearing the end of their prison sentence. The statute reads, in pertinent part,

       {¶28} “(2) At least three weeks prior to transferring to transitional control under

this section a prisoner who is serving a term of imprisonment or prison term for an

offense committed on or after July 1, 1996, the adult parole authority shall give notice of

the pendency of the transfer to transitional control to the court of common pleas of the

county in which the indictment against the prisoner was found and of the fact that the

court may disapprove the transfer of the prisoner to transitional control and shall include

a report prepared by the head of the state correctional institution in which the prisoner is

confined. The head of the state correctional institution in which the prisoner is confined,

upon the request of the adult parole authority, shall provide to the authority for inclusion

in the notice sent to the court under this division a report on the prisoner's conduct in the

institution and in any institution from which the prisoner may have been transferred. The

report shall cover the prisoner's participation in school, vocational training, work,

treatment, and other rehabilitative activities and any disciplinary action taken against the

prisoner. If the court disapproves of the transfer of the prisoner to transitional control,
Licking County, Case No. 11-CA-103                                                           7


the court shall notify the authority of the disapproval within thirty days after receipt of the

notice. If the court timely disapproves the transfer of the prisoner to transitional control,

the authority shall not proceed with the transfer. If the court does not timely disapprove

the transfer of the prisoner to transitional control, the authority may transfer the prisoner

to transitional control.”

       {¶29} While the statute does not specifically prohibit the court from denying the

transitional control prior to notice, we find to do so clearly thwarts the design and

purpose of the statute. The statute is designed to promote prisoner rehabilitation effort

and good behavior while incarcerated. To prematurely deny the possibility of transitional

control runs contra to those purposes. While the trial court retains discretion to

disapprove the transitional control, we find to do so in the sentencing entry prior to

notice from the adult parole authority is premature. See, State v. Spears, Licking App.

No. 10CA95, 2011-Ohio-1538.

       {¶30} Appellant's third assignment of error is sustained.

                                                 IV.

       {¶31} In the fourth assignment of error, Appellant argues the trial court erred in

denying her motion to withdraw pleas. Specifically, Appellant asserts at the change of

plea hearing, after the trial court pronounced the sentence orally but prior to the written

judgment entry, during a sidebar conference, Appellant's counsel orally moved the court

to withdraw the pleas of guilty. This sidebar conference was the subject of the disputed

Appellate Rule 9(c) statement. The trial court directed counsel to file a written motion to

withdraw the pleas.
Licking County, Case No. 11-CA-103                                                    8


       {¶32} At 10:24 a.m. on July 23, 2010, the docket indicates Appellant's counsel

filed a motion and notice of hearing to withdraw guilty pleas pursuant to Rule 32.1,

"following-up defendant's oral motion of July 23, 2010 A.M."

       {¶33} The trial court's Judgment Entry accepting Appellant's pleas and entering

sentence was docketed at 4:02 p.m. on July 23, 2010.

       {¶34} Ohio Criminal Rule 32.1 reads:

       {¶35} "A motion to withdraw a plea of guilty or no contest may be made only

before sentence is imposed; but to correct manifest injustice the court after sentence

may set aside the judgment of conviction and permit the defendant to withdraw his or

her plea."

       {¶36} As a trial court speaks through its docket, Appellant's sentence was not

imposed until after Appellant had filed her motion to withdraw the pleas of guilty.

Therefore, the motion was a presentence motion to withdraw pleas, and the trial court

utilized the incorrect standard in addressing Appellant's motion to withdraw the pleas.

Accordingly, the judgment of the trial court is reversed, and the matter remanded to the

trial court for reconsideration.

       {¶37} The fourth assignment of error is sustained.
Licking County, Case No. 11-CA-103                                                  9


      {¶38} For the reasons set forth above, Appellant's convictions and sentence in

the Licking County Court of Common Pleas are affirmed, in part, reversed, in part, and

this matter remanded for further proceedings in accordance with the law and this

opinion.

By: Hoffman, J.

Delaney, P.J. and

Edwards, J. concur                        s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN

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

                                          s/ Julie A. Edwards___________________
                                          HON. JULIE A. EDWARDS
Licking County, Case No. 11-CA-103                                                   10


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


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :            JUDGMENT ENTRY
                                           :
BRITTANY A. HEMPFIELD                      :
                                           :
       Defendant-Appellant                 :            Case No. 11-CA-103


       For the reasons stated in our accompanying Opinion, Appellant's convictions

and sentence in the Licking County Court of Common Pleas are affirmed, in part,

reversed, in part, and the matter remanded for further proceedings in accordance with

the law and our Opinion. Costs to be divided equally.




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


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


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