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State v. McCullum

Court of Appeals of Ohio, Ninth District, Lorain

June 28, 2019

STATE OF OHIO Appellee
v.
HOLLY MCCULLUM Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 06CR070950.

          HOLLY MCCULLUM, pro se, Appellant.

          DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          Lynne S. Callahan, Judge.

         {¶1} 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.

         I.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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 plea.

         {¶6} 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 years."

         {¶7} 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.

         II.

         ASSIGNMENT ...


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