Court of Appeals of Ohio, Fifth District, Muskingum
from the Muskingum Court of Common Pleas, Case No. CR99-0092.
Plaintiff-Appellee: D. MICHAEL HADDOX, MUSKINGUM COUNTY
Defendant-Appellant: TWAN E. MCCRAE.
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J.
Hon. William B. Hoffman, J.
Defendant-Appellant Twan E. McCrae appeals the January 19,
2017 judgment entry of the Muskingum County Court of Common
Pleas. Plaintiff-Appellee is the State of Ohio.
AND PROCEDURAL HISTORY
In February of 2000, a jury found McCrae not guilty of
aggravated murder, but guilty of the lesser included offense
of murder and of two counts of having a weapon while under
disability. By entry filed on April 3, 2000, the trial court
sentenced McCrae to an indefinite term of fifteen years to
life on the murder count, plus a mandatory three-year prison
term for a firearm specification, to be served consecutively.
As for the weapons charges, the trial court merged the two
counts and sentenced McCrae to five years in prison, to be
served consecutively to the other sentences. In the
sentencing entry and at the sentencing hearing, the trial
court provided post-release control was "mandatory up to
a maximum of five years." In the entry, the trial court
also stated it informed McCrae of the consequences for
violating post-release control. McCrae is currently
incarcerated and serving his original sentence.
McCrae filed a direct appeal and argued the trial court erred
in admitting a firearm into evidence that was not the actual
firearm used on the evening in question. In State v.
McCrae, 5th Dist. Muskingum No. CT2000-0012, 2000 WL
1884829 (Dec. 20, 2000), we overruled McCrae's assignment
of error and affirmed his conviction.
On June 17, 2016, McCrae filed a motion for resentencing to
vacate void sentence pursuant to R.C. 2967.28. McCrae argued
the trial court failed to properly impose post-release
control and requested a de novo sentencing hearing. The State
filed a response on June 26, 2016 and stated the term of
post-release control given to McCrae at the sentencing
hearing and in the original sentencing entry was incorrect.
Rather than five years mandatory post-release control, McCrae
should have been given three years of optional post-release
control. However, the State argued the trial court should not
hold a de novo sentencing hearing, but should hold a
resentencing hearing only on the issue of post-release
On August 8, 2016, the trial court issued a nunc pro tunc
sentencing entry changing the language contained in the
sentencing entry regarding post-release control from a
mandatory five year term to an optional term for up to three
McCrae appealed the August 8, 2016 judgment entry. He argued
the trial court erred when it issued a nunc pro tunc
sentencing entry and failed to hold a de novo sentencing
hearing. In State v. McCrae, 5th Dist. Muskingum No.
CT2016-0047, 2016-Ohio-8182, we agreed with McCrae that the
trial court erred in resentencing McCrae through a nunc pro
tunc journal entry. Id. at ¶ 12. We found,
however, McCrae was not entitled to a de novo sentencing
hearing. We stated:
In State v. Fisher, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court held,
"only the offending portion of the sentence is subject
to review and correction" and thus the "new
sentencing hearing to which an offender is entitled * * * is
limited to proper imposition of post-release control."
Therefore, while appellant's sentence is void with
respect to post-release control, the remainder of his
sentence is valid under the principles of res judicata.
Id. This Court has applied Fisher to cases in which
defendants were sentenced prior to July 11, 2006, and
affirmed decisions in which the trial court denied the
defendant a de novo sentencing hearing. State v.
Minor, 5th Dist. Richland No. 15CA81, 2016-Ohio-914; ...