Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas No.
T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for
Raymond L. Katz, for Defendant-Appellant.
Defendant-appellant Leonard Evans appeals the Hamilton County
Common Pleas Court's judgment imposing postrelease
control and correcting a clerical error.
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
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.
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.
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.
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.
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
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.
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
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 ...