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State v. Evans

Court of Appeals of Ohio, First District, Hamilton

May 12, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
LEONARD EVANS, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas No. B-0510014

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee.

          Raymond L. Katz, for Defendant-Appellant.

          OPINION

          Myers, Judge.

         {¶1} Defendant-appellant Leonard Evans appeals the Hamilton County Common Pleas Court's judgment imposing postrelease control and correcting a clerical error.

         {¶2} Evans was convicted in 2006 of murder and an accompanying firearm specification, having a weapon while under a disability, and carrying a concealed weapon. The trial court imposed an aggregate term of 24 ½ years to life in prison. In addition, the court notified Evans at sentencing that upon his release from prison he would be subject to a mandatory five-year period of postrelease control, and incorporated that notification into the judgment of conviction.

         {¶3} Evans unsuccessfully challenged his convictions on direct appeal. State v. Evans, 1st Dist. Hamilton No. C-060392 (Jan. 23, 2008). In 2014, Evans appealed the trial court's judgments overruling three postconviction motions. We modified the judgments appealed from to reflect dismissals of the motions and affirmed the judgments as modified. State v. Evans, 1st Dist. Hamilton No. C-140503, 2015-Ohio-3208, ¶ 13. But because postrelease control could not be imposed for a special felony like murder, and because only a discretionary three-year period of postrelease control could be imposed for the weapons offenses, we held that Evans's sentences were void to the extent that postrelease control had not been properly imposed. Id. at ¶ 10-11. We remanded the matter for correction of the offending portions of the sentences. The sentencing entry also mistakenly stated that the sentence was 24 ½ years rather than 24 ½ years to life. We remanded the matter for correction of this clerical error as well. Id. at ¶ 14.

         {¶4} At the March 2016 hearing, the trial court notified Evans that upon his release he may be subject to a three-year period of postrelease control for the weapons offenses and incorporated that notification into the judgment of conviction. The court also corrected the clerical error in its entry to reflect that the sum of Evans's prison sentences was 24 ½ years to life. Evans now appeals.

         {¶5} In his first assignment of error, Evans argues that the trial court erred by imposing a discretionary three-year period of postrelease control for the weapon-under-disability and concealed-weapon offenses because he had already served the stated prison terms for those offenses. He claims that the court's sentencing entry directed that those sentences were to be served prior to the sentence imposed for the murder offense. He is mistaken. The sentencing entry does not state that the prison terms for the weapons charges should be served first. Rather, it states, as required by law, that the mandatory term for the three-year gun specification be served prior to the 15 years to life for the murder.

         {¶6} A trial court cannot add a term of postrelease control as a sanction for an offense after the defendant has already served the prison term for that offense, even if the defendant remains in prison for other offenses. State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, paragraph three of the syllabus. In Holdcroft, the trial court ordered that the defendant's arson sentence be served consecutively to his sentence for aggravated arson. Id. at ¶ 3. The Supreme Court of Ohio held that once the defendant completed his prison term for aggravated arson, the trial court lost the authority to impose a postrelease-control sanction for that offense, even though the defendant was still serving a prison term for arson. Id. at ¶ 4.

         {¶7} Unlike the sentencing entry in Holdcroft, the entry in this case did not set forth the sequence in which each of the consecutive sentences was to be served. Contrary to Evans's representation, the court did not order the sentences for the weapon-under-disability and concealed-weapon offenses to be served prior to the sentence for the murder offense, for a total of 24 ½ years to life.

         {¶8} When Evans was sentenced in 2006, the trial court imposed an indefinite term of 15 years to life for the murder offense. See former R.C. 2929.02(B) (now R.C. 2929.02(B)(1)). The court imposed a three-year prison term for the firearm specification, to be served consecutively to and prior to the prison term imposed for the underlying murder offense. See former R.C. 2929.14(D)(1)(a)(ii) and (E)(1)(a) (now R.C. 2929.14(B)(1)(a)(ii) and (C)(1)(a)). In addition, the court imposed a five-year term for the weapon-under-disability offense and an 18-month term for the concealed-weapon offense. See former R.C. 2929.14(A)(3) and (4) (now R.C. 2929.14(A)(3)(b) and (4)). The court ordered that the sentences for the murder, weapon-under-disability, and concealed-weapon offenses be served consecutively to each other.

         {¶9} Where, as here, a sentencing entry fails to explicitly set forth the sequence in which consecutive sentences are to be served, courts have found Ohio Adm.Code 5120-2-03.1(M) instructive in determining the sequence of sentences. See State v. Ford, 2d Dist. Montgomery No. 25796, 2014-Ohio-1859, ¶ 19; State v. Peace, 3d Dist. Hancock No. 5-13-32, 2014-Ohio-2126. Ohio Adm.Code 5120-2-03.1(M) sets forth the sequence that sentences are to be served when an offender is serving stated prison terms consecutively to life terms or to certain firearm specifications:

When an offender is serving any stated prison terms consecutively to any life terms of imprisonment and/or to any one, three, five and/or six-year mandatory prison terms imposed pursuant to division (B)(1)(a)(i) of section 2929.14 [of] the Revised Code, for using a firearm in the commission of an offense, and/or division (B)(1)(a)(ii) of section 2929.14 of the Revised Code, for committing a felony by discharging a firearm from a motor vehicle, the aggregate of all such one, three, five and/or six-year mandatory prison terms shall be served first, then the aggregate of all other mandatory prison terms shall be served, and then the aggregate of the ...

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