FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 06CR070950.
MCCULLUM, pro se, Appellant.
P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
S. Callahan, Judge.
Appellant, Holly McCullum, appeals an order of the Lorain
County Court of Common Pleas that denied her "Motion to
Vacate Sentence, Withdraw Plea, and Terminate Mandatory Post
Release Control." This Court affirms in part and
reverses in part.
In 2007, Ms. McCullum pleaded no contest to aggravated
vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a
second-degree felony ("count one"), and aggravated
vehicular assault in violation of R.C. 2903.08(A)(1)(a), a
third-degree felony ("count two"). She also pleaded
no contest to a second charge of aggravated vehicular assault
in violation of R.C. 2903.08(A)(1)(a), a third-degree felony
("count three"), and driving under the influence in
violation of R.C. 4511.19(A)(1)(a), a first-degree
misdemeanor ("count four"). The trial court
sentenced her to a seven-year prison term on count one, a
four-year prison term on count two, a three-year prison term
on count three, and four months in jail on count four. The
prison terms for counts one, two, and three were mandatory,
as set forth in Ms. McCullum's written plea agreement.
See R.C. 2903.06(E); R.C. 2903.08(D)(1). After an
initial misstatement during sentencing that only the term on
count one was mandatory, the trial court corrected this
representation and noted that Ms. McCullum would not be
eligible for judicial release because counts one, two, and
three were mandatory. The trial court ordered the prison
terms for counts one, two, and three to be served
consecutively to each other and concurrently with count four.
The trial court also ordered Ms. McCullum to serve the
seven-year sentence for count one first.
Ms. McCullum did not file a direct appeal. Beginning
approximately six months after she was sentenced, however,
Ms. McCullum filed a series of motions asking the trial court
to grant her judicial release, modify her sentence, or allow
her prison terms to be served concurrently. On October 23,
2007, the trial court denied her first motion for judicial
release, noting specifically that her prison term for count
one was mandatory. In 2009, Ms. McCullum petitioned the trial
court for post-conviction relief. The trial court dismissed
her petition as untimely.
Ms. McCullum filed a second motion for judicial release in
2014 after serving her seven-year prison term on count one.
The trial court denied that motion on May 8, 2014, clarifying
that she was ineligible for judicial release because her
prison terms on counts one, two, and three were all
mandatory. On May 9, 2014, Ms. McCullum filed a document that
the trial court characterized, alternatively, as a motion to
reconsider or as a motion to withdraw her plea. In that
motion, Ms. McCullum represented that she had not been
advised by the court that her sentences were mandatory. The
trial court denied that motion, explaining that her written
plea agreement provided that a prison term on counts one,
two, and three would be mandatory and that the trial court
had advised her to that effect when she changed her plea. On
July 7, 2014, Ms. McCullum moved to modify her sentence
again, asserting the same grounds. The trial court denied
that motion on the same basis.
In an apparent attempt to clarify any confusion regarding the
nature of Ms. McCullum's prison terms, the trial court
then journalized an order dated February 17, 2015, that added
the word "mandatory" to each sentence on counts
one, two, and three. Unfortunately, that entry contained two
typographical errors in its own right: it incorrectly stated
that Ms. McCullum had pleaded guilty and it included the
phrase "up to" within the post-release control
notification. On March 11, 2015, the trial court issued a
second nunc pro tunc entry that removed the phrase "up
to" from the post-release control notification. On March
20, 2015, the trial court issued a third nunc pro tunc entry
that substituted "no contest" for
"guilty" in connection with Ms. McCullum's
On October 31, 2017, Ms. McCullum filed a motion captioned
"Motion to Vacate Sentence, Withdraw Plea, and Terminate
Mandatory Post Release Control." In that motion, she
argued that the trial court's nunc pro tunc orders were
void because they improperly modified her sentence and
exceeded the trial court's authority under Crim.R. 36.
With respect to postrelease control, Ms. McCullum argued that
her sentence was void because "[t]he trial court failed
to notify [her] that her post release control was to be
imposed after she leaves prison" and the trial
court could not correct this omission by issuing a nunc pro
tunc entry. (Emphasis in original.) Finally, she stated that
she "wish[ed] to withdraw her plea if the trial court is
now attempting to impose a mandatory prison term of 14
The trial court denied Ms. McCullum's motions, concluding
that the orders dated February 17, 2015, March 11, 2015, and
March 20, 2015, were within its authority to correct clerical
mistakes under Crim.R. 36 and that she had been properly
informed of her post-release control obligations. The trial
court also denied the motion to the extent that it argued
that Ms. McCullum should be allowed to withdraw her plea. Ms.
McCullum filed this appeal. Her four assignments of error are
reordered for purposes of discussion.