FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR 2003-12-3744
APPEARANCES: DONALD GALLICK, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
J. CARR JUDGE.
Defendant-Appellant Dale Ivey appeals from the judgment of
the Summit County Court of Common Pleas. This Court affirms
in part, vacates in part, and remands the matter for the
issuance of a nunc pro tunc entry.
In 2003, Ivey was indicted on one count of aggravated murder,
one of count of murder, and one count of escape. The matter
proceeded to a jury trial, after which, the jury found him
guilty of all counts. After finding that the charges of
aggravated murder and murder were of dissimilar import, the
trial court sentenced Ivey to life imprisonment with parole
eligibility after 20 full years for the crime of aggravated
murder, 15 years to life for the crime of murder, and 8 years
for the crime of escape. The trial court ordered the sentence
for escape to run consecutively to the sentences for
aggravated murder and murder, which were ordered to run
concurrently to each other. The trial court stated at the
sentencing hearing that "the parole board * * * may
impose a period of post-release control possibly up to five
or more years" and in the entry stated that Ivey was
"subject to post-release control to the extent the
parole board may determine as provided by law."
Ivey filed a notice of appeal in 2004; however, the appeal
was dismissed after he failed to file a brief. Years later,
Ivey began filing various motions in the trial court. In
October 2015, he filed the motion that led to his
resentencing and this appeal: a motion for resentencing based
upon errors in his post-release control notification and in
the trial court's failure to merge his aggravated murder
and murder convictions. The State conceded both errors and
agreed that Ivey should be resentenced.
On February 23, 2016, the trial court held what amounted to a
de novo resentencing hearing. The trial court merged
Ivey's aggravated murder and murder convictions,
sentencing him to life imprisonment with parole eligibility
after 20 years on the aggravated murder charge. The trial
court sentenced him to 8 years on the escape charge and
ordered that sentence to run consecutively to the sentence
for aggravated murder. At the sentencing hearing, the trial
court notified Ivey that he would be subject to a mandatory
term of 3 years of postrelease control; however, the March 3,
2016 sentencing entry states that he would be subject to 5
years of post-release control. On March 11, 2016, the trial
court issued a nunc pro tunc entry to correct the name of
counsel appointed for Ivey's appeal.
Ivey has appealed both the March 3, 2016, and the March 11,
2016 entries, raising five assignments of error for our
Before addressing the merits of the appeal, we address
whether the trial court had jurisdiction to conduct a de novo
resentencing of Ivey. Ivey's 2004 sentencing entry was a
final, appealable order. See State v. McIntyre, 9th
Dist. Summit No. 27670, 2016-Ohio-93, ¶ 10 (listing the
elements necessary for a final, appealable order in a
criminal case). "Absent statutory authority, a trial
court is generally not empowered to modify a criminal
sentence by reconsidering its own final judgment. Once a
final judgment has been issued pursuant to Crim.R. 32, the
trial court's jurisdiction ends." (Internal
quotations and citations omitted.) Id. at ¶ 11.
However, trial courts do "retain continuing jurisdiction
to correct a void sentence and to correct a clerical error in
a judgment[.]" State v. Raber, 134 Ohio St.3d
350, 2012-Ohio-5636, ¶ 20.
In the instant matter, Ivey's post-release control
notification at both the original sentencing hearing and in
the 2004 entry was deficient. Ivey was subject to
post-release control based solely on his conviction for
escape, a felony of the second degree. See R.C.
2921.34(B). Thus, Ivey was subject to a mandatory three-year
term of post-release control upon his release from prison.
R.C. 2967.28(B)(2). At the 2004 sentencing hearing, the trial
court stated that "the parole board * * * may impose a
period of post-release control possibly up to five or more
years[, ]" and in the entry the trial court provided
that Ivey was "subject to post-release control to the
extent the parole board may determine as provided by
law." Neither notified Ivey that he was subject to a
mandatory three years of post-release control. See State
v. Grimes, Slip Opinion No. 2017-Ohio-2927, ¶ 9.
The Supreme Court of Ohio has concluded that, "when a
judge fails to impose statutorily mandated post[-]release
control as part of a defendant's sentence, that part of
the sentence is void and must be set aside." State
v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶
26. "The new sentencing hearing to which an offender is
entitled * * * is limited to proper imposition of
post[-]release control." Id. at paragraph two
of the syllabus. Accordingly, the post-release control
portion of Ivey's 2004 sentence was void and he was
entitled to a limited resentencing hearing so that he could
be properly notified of his post-release control obligations.
The trial court, however, did not conduct a resentencing
hearing limited to providing the required post-release
control notification. Instead, it conducted a de novo
hearing. In part, it did so because it found that it was
required to merge the offenses of aggravated murder and
murder because they were allied. However, even if the trial
court erred in 2004 in finding the offenses to be of
dissimilar import, the trial court could only reconsider that
final judgment if such an error rendered the sentence void.
See Raber at ¶ 20. "[A] trial court's
failure to merge offenses for purposes of sentencing, where
the court has not previously found the offenses to be allied
(either expressly or by merely failing to make such a
finding), does not result in a void sentence, but rather a
voidable one subject to challenge only on direct
appeal." In re DM., 9th Dist. Medina No.
16CA0019-M, 2017-Ohio-232, ¶ 9, citing State v.
Williams, Slip Opinion No. 2016-Ohio-7658, ¶ 23,
26. In the instant matter, the trial court in 2004 found the
offenses to be of dissimilar import, and therefore, not
allied. Irrespective of the propriety of that decision, it is
not void. See id. Accordingly, the trial court did
not have jurisdiction to resentence Ivey aside from providing
appropriate post-release control notification. See
Raber,134 Ohio St.3d 350, 2012-Ohio-5636, at ¶ 20.
To the extent ...