Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Ivey

Court of Appeals of Ohio, Ninth District, Summit

June 7, 2017

STATE OF OHIO Appellee
v.
DALE IVEY Appellant

         APPEAL 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.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR JUDGE.

         {¶1} 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.

         I.

         {¶2} 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."

         {¶3} 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.

         {¶4} 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.

         {¶5} Ivey has appealed both the March 3, 2016, and the March 11, 2016 entries, raising five assignments of error for our review.

         II.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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 ΒΆ 20. To the extent ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.