State v. Gause, (Ohio 2009)
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Summary
SENTENCING: The trial court erred in resentencing the defendant when the only defect in the original judgment of conviction was the absence of post-release-control language: when the trial court has orally informed the defendant of post-release control, but the post-release-control language is not recorded in the judgment entry, the proper remedy is to add the omitted post-release-control language by using an entry nunc pro tunc after a hearing.
Summary
SENTENCING: The trial court erred in resentencing the defendant when the only defect in the original judgment of conviction was the absence of post-release-control language: when the trial court has orally informed the defendant of post-release control, but the post-release-control language is not recorded in the judgment entry, the proper remedy is to add the omitted post-release-control language by using an entry nunc pro tunc after a hearing.
Text
[Cite as State v. Gause, 2009-Ohio-2140.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, :
APPEAL NOS. C-080601
C-080602
Plaintiff-Appellant, :
TRIAL NOS. B-9908286
B-9908400 vs. :
D E C I S I O N.
JAMES GAUSE, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Common Pleas Court Judgment Appealed From Is: Reversed and Cause Remanded Date of Judgment Entry on Appeal: May 8, 2009
Joseph T. Deters, Hamilton County Prosecuting Attorney, and James M. Keeling, Assistant Prosecuting Attorney, for Plaintiff-Appellant, A. Norman Aubin and Faulkner & Tepe, for Defendant-Appellee.
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OHIO FIRST DISTRICT COURT OF APPEALS
MARK P. PAINTER, Judge.
The state of Ohio appeals the resentencing of defendant-appellant James Gause, after the original sentencing court had failed to include post-release- control provisions in his sentence. We hold that when the trial court has orally informed the defendant of post-release control, but the post-release-control language is not recorded in the judgment entry, the proper remedy is to add the omitted post- release-control language by using an entry nunc pro tunc after a hearing.
The original sentencing court, during sentencing, informed Gause that he would "be placed on post-release control for a period of five years," but that notification was not reflected in the sentencing entry. The court below attempted to remedy the omission by resentencing Gause, and then it also reduced his term of incarceration. The trial court had no authority to resentence Gause. The proper remedy was to add the omitted post-release-control language in a nunc pro tunc entry after a hearing. The trial court's subsequent sentence is therefore reversed and the case is remanded for a R.C. 2929.191 hearing.
Judgment reversed and cause remanded.
HILDEBRANDT, P.J., and DINKELACKER, J., concur.
Please Note:
The court has recorded its own entry this date.
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