[Cite as State v. Negron, 2014-Ohio-5427.]




                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 100966



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLANT

                                                  vs.

                                         JOVIANNE NEGRON

                                                                DEFENDANT-APPELLEE



                                              JUDGMENT:
                                               AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-10-537396-A

        BEFORE:          Jones, P.J., Keough, J., and Stewart, J.

        RELEASED AND JOURNALIZED: December 11, 2014
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Joseph J. Ricotta
        Daniel T. Van
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Steve W. Canfil
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, SR., P.J.:
          {¶1} Plaintiff-appellant, the state of Ohio, appeals from the trial court’s January 2014

judgment granting the motion to dismiss of defendant-appellee, Jovianne Negron. We affirm.

          {¶2} In 2010, Negron was indicted on a single count of escape; the charge resulted from

his alleged failure to comply with postrelease control in Cuyahoga C.P. No. CR-07-497486. In

2013, Negron filed a motion to dismiss the indictment and terminate postrelease control on the

ground that it was never properly imposed. Specifically, the sentencing journal entry did not

detail the consequences for violating postrelease control; rather it stated that “[p]ost release

control is part of this prison sentence for 3 years for the above felony(s) under R.C. 2967.28.”

          {¶3} The trial court held a hearing on the matter. The state contended that postrelease

control was properly imposed because Negron was advised of the consequences of violating

postrelease control at his plea and sentencing hearings.

          {¶4} The trial court, however, granted Negron’s motion to dismiss, relying on this court’s

decision in State v. Viccaro, 8th Dist. Cuyahoga No. 99816, 2013-Ohio-3437, and the Ohio

Supreme Court’s decision in State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d

718.

          {¶5} The state now appeals, raising the following two assignments of error for our

review:

          I. The trial court erred in dismissing the indictment because the defendant was
          orally notified at sentencing of the consequences for violating post-release control
          and the journal entry imposes the correct term of post-release control and
          references the post-release control statute and, as a result, he was properly charged
          with escape.

          II. The trial court erred in dismissing the indictment, because even if the
          sentencing entry omits the potential additional prison time that could be imposed
          for violations of post-release control, the defendant was properly advised of
          post-release control and was properly on post-release control when he absconded.
        Therefore, the escape charge should not have been dismissed.

       {¶6} We consider the two interrelated assignments of error together.

       {¶7} In State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, the Ohio

Supreme Court held that trial courts are required to give notice of postrelease control both at the

sentencing hearing and by incorporating it into the sentencing entry. Id. at paragraph one of the

syllabus. Further, in Qualls, supra, the Ohio Supreme Court addressed the issue of postrelease

control, emphasizing two important principles.

       {¶8} The first principle is that “unless a sentencing entry that did not include notification

of the imposition of postrelease control is corrected before the defendant completed the prison

term for the offense for which postrelease control was to be imposed, postrelease control cannot

be imposed.” Id. at ¶ 16, citing Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844

N.E.2d 301.

       {¶9} The second principle the court emphasized in Qualls is that a trial court “must

provide statutorily compliant notification to a defendant regarding postrelease control at the time

of the sentencing, including notifying the defendant of the details of postrelease control and the

consequences of violating postrelease control.” Id. at ¶ 18. If the trial court properly notifies

the defendant about postrelease control at the sentencing hearing, but the 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 the syllabus.

       {¶10} Thus, under these cases, postrelease control notifications must be given at the

sentencing hearing and then incorporated into the sentencing judgment entry.             A deficient

sentencing judgment entry can be corrected, but only before the defendant completes his sentence

for which the postrelease control was imposed.
       {¶11} This court has recently addressed this issue regarding lack of notification of the

consequences of violating postrelease control in the sentencing judgment entry.    For example, in

State v. Dines, 8th Dist. Cuyahoga No. 100647, 2014-Ohio-3143, the defendant pleaded guilty to

three counts of rape and agreed to a recommended sentence of 18 years in prison. In 2007, the

trial court sentenced him to six years on each count, to run consecutively, and imposed a

mandatory five-year period of postrelease control. In 2013, Dines filed a pro se motion to

vacate his sentence. The state conceded that the trial court’s sentencing journal entry did not

include required information regarding the consequences of a violation of postrelease control.

       {¶12} The state recommended that the trial court conduct a limited resentencing on the

issue of postrelease control.   The trial court held the hearing at which it informed the defendant

that he was subject to a mandatory five years of postrelease control on each count of rape and

advised him of the consequences of violating his postrelease control. The court issued a journal

entry the same day, that advised the defendant of postrelease control.

       {¶13} The defendant appealed, contending that the trial court erred in imposing

postrelease control on one of the rape counts for which he had already served his sentence. The

state conceded this assignment of error, and we agreed. The parties suggested that the remedy

was to remand the case to the trial court with instructions to vacate the imposition of postrelease

control for the sentence the defendant had already served. This court followed the parties’

suggestion and remanded the case with instructions that the trial court determine which rape

conviction has already been served and to vacate the imposition of postrelease control only as to

that conviction.

       {¶14} In State v. Mills, 8th Dist. Cuyahoga No. 100417, 2014-Ohio-2188, the trial court

properly advised the defendant of postrelease control at his sentencing hearing, but the
corresponding journal entry did not include the consequences for violating postrelease control.

The defendant violated the terms of his postrelease control and was indicted on escape. This

court found that the defendant could not be convicted of escape because the failure to incorporate

the proper notice of postrelease control in the corresponding sentence entry rendered the sentence

void and the defendant had already served his prison term for the charges underlying the

postrelease control.

       {¶15} The Mills decision relied on Viccaro,             8th Dist. Cuyahoga No. 99816,

2013-Ohio-3437, that the trial court relied on here. In Viccaro, the defendant pled guilty to one

count of kidnapping and one count of aggravated theft. The trial court sentenced him to a

three-year prison term. Prior to the expiration of his prison sentence, the trial court conducted a

resentencing hearing and advised the defendant that upon his release he would be subjected to a

five-year period of postrelease control supervision, but failed to include the consequences of

violating postrelease control in the journal entry. The defendant violated the terms and conditions

of his postrelease control supervision and subsequently was indicted with one count of escape.

He pled guilty to the charge of escape, and the trial court sentenced him to a three-year term of

imprisonment.

       {¶16} Two years after his sentence in the escape charge, the defendant filed a motion to

withdraw his guilty plea, which the trial court denied.   He then appealed, arguing that his term

of postrelease control was not properly imposed and, thus, it could not provide the basis for his

escape charge.     Specifically, the defendant contended that the trial court’s journal entry

informing him of postrelease control was not sufficient and, therefore, was void. The defendant

reasoned that because the void term of postrelease control could not provide the basis for the

charge of escape, the trial court erred when it denied his motion to withdraw his guilty plea.
       {¶17} The state supplemented the record with the entry of conviction for the underlying

felony; the transcript from the resentencing hearing, at which the court advised him of the

imposition of postrelease control; and the journal entry of the resentencing. It was the state’s

position that any error on the part of the trial court was clerical and had no bearing on the

defendant’s motion to withdraw his guilty plea.

       {¶18} Following Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864 and

Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, this court found that the court

failed to include the consequences of violating postrelease control in its journal entry, which

rendered the sentence void.   Viccaro at ¶ 14. This court also found that because the defendant

completed his sentence of imprisonment on the charges underlying his postrelease control

sanctions, the sentencing entry could not be corrected, and the defendant could not be convicted

of escape when there was no valid sanction. Id.; see also State v. Mace, 8th Dist. Cuyahoga No.

100779, 2014-Ohio-5036, ¶ 1.

       {¶19} Further, the mere reference to the postrelease control statute, R.C. 2967.28, in the

sentencing entry is not adequate notice of the consequences of violating postrelease control.

See Mills, 8th Dist. Cuyahoga No. 100417, 2014-Ohio-2188, ¶ 7; State v. Elliott, 8th Dist.

Cuyahoga No. 100404, 2014-Ohio-2062, ¶ 5, 12.

       {¶20} In light of this court’s precedent,1 the escape charge against Negron was properly

dismissed. The state’s two assignments of error are, therefore, overruled.

       {¶21} Judgment affirmed.


1
 See also State v. Burroughs, 8th Dist. Cuyahoga No. 101123, 2014-Ohio 4688; State v. Lawson, 8th
Dist. Cuyahoga No. 100626, 2014-Ohio-3498; State v. Pyne, 8th Dist. Cuyahoga No. 100580,
2014-Ohio-3037; State v. Middleton, 8th Dist. Cuyahoga No. 99979, 2013-Ohio-5591.
       It is ordered that appellee recover of appellant his costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the 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.




LARRY A. JONES, SR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
MELODY J. STEWART, J., CONCUR
