[Cite as State v. Harris, 2012-Ohio-2185.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

PICKAWAY COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 11CA15 

 : 

 vs. : 

 : 

DERRICK L. HARRIS, : DECISION AND JUDGMENT ENTRY

 : 

 Defendant-Appellant. : RELEASED 05/14/12 

 : 

________________________________________________________________ 

APPEARANCES: 

Derrick L. Harris, Chillicothe, Ohio, Appellant pro se. 

Judy C. Wolford, Pickaway County Prosecuting Attorney, Circleville, Ohio, for 

Appellee. 

________________________________________________________________ 

Harsha, J. 

{¶1} Derrick L. Harris appeals the trial court’s decision that denied his 

motion for de novo sentencing. He contends that he is entitled to a new 

sentencing hearing because the trial court’s sentencing entry failed to state that 

the parole board could impose up to one-half of Harris’ originally-imposed prison 

term if he violated post-release control. Because the trial court notified Harris at 

the sentencing hearing that he could be subject to up to one-half of his originallyimposed prison term if he violated post-release control, Harris is not entitled to a 

new sentencing hearing. However, because the trial court failed to incorporate 

this mandated language into its sentencing entry, we remand to the trial court for 

the limited purpose of correcting the sentencing entry. Accordingly, we sustain 

Harris’ assignment of error in limited part and remand to the trial court. 
Pickaway App. No. 11CA15 2

I. FACTS 

{¶2} On December 20, 2005, the trial court convicted Harris of 

aggravated robbery with a firearm specification, felonious assault with a firearm 

specification, and having a weapon while under a disability. The court sentenced 

Harris to a total of fifteen years in prison. The court additionally notified Harris 

that he would be subject to post-release control for five years. Its sentencing 

entry states: “The Court has further notified the defendant that he will be subject 

to a period of post-release control of Five (5) years, to be imposed by the Parole 

Board after his release from imprisonment, as well as the consequences for 

violating conditions of post release control imposed by the Parole Board under 

[R.C.] 2967.28. The defendant is ordered to serve as part of this sentence any 

such term of Five (5) years of post release control imposed by the Parole Board 

and any prison term for violation of that post release control.” 

{¶3} On May 4, 2011, Harris filed a pro se motion for “de novo 

sentencing.” He argued that he was entitled to resentencing because the trial 

court’s sentencing entry failed to specify that the parole board may impose up to 

one-half of Harris’ originally-imposed prison term if he violates post-release 

control. 

{¶4} The trial court denied Harris’ motion. The court determined that its 

sentencing entry complied with the applicable statutes, because it informed 

Harris that he would be subject to post-release control for five years and that he 

may have to serve “any prison term for violation of that post release control.” 

The court further noted that it had verbally informed Harris “of the consequences, 
Pickaway App. No. 11CA15 3

including the prison term of up to one-half of the prison term originally imposed.” 

The court explained: “[Harris] is correct that a court speaks only through its 

journal entry. However, this Court’s December 20, 2005, Entry clearly states that 

[Harris] is subject to five years of post release control and that he may have to 

serve ‘any prison term for violation of that post release control.’ This Court orally 

advised and explained to [Harris] of what that prison term may consist. Ohio law 

never intended for a court’s entry to state verbatim that which is stated in open 

court and placed on the record.” 

II. ASSIGNMENT OF ERROR 

{¶5} Harris raises one assignment of error: 

“The court erred when it failed to impose post-release control as 

required by the Ohio Statutes.” 

III. ANALYSIS 

{¶6} In his sole assignment of error, Harris argues that the trial court 

erred when it denied his motion for de novo sentencing. He asserts that the 

court should have conducted a new sentencing hearing, because its original 

sentencing entry failed to inform Harris that violating his post-release control 

conditions could result in the imposition of up to one-half of his originally-imposed 

stated prison term. 

{¶7} Former R.C. 2929.19(B)(3)(c) and (e), which were in effect when 

the court sentenced Harris (the present versions are codified at R.C. 

2929.19(B)(2)(c) and (e)), required a trial court to notify certain felony offenders 

at the sentencing hearing that: (1) the offender is subject to statutorily mandated 

post-release control; and (2) the parole board may impose a prison term of up to 
Pickaway App. No. 11CA15 4

one-half of the offender’s originally-imposed prison term if the offender violates 

post-release control conditions. State v. Singleton, 124 Ohio St.3d 173, 2009-

Ohio-6434, 920 N.E.2d 958, ¶11; State v. Triplett, 4th Dist. No. 10CA35, 2011-

Ohio-4628, ¶4 The Ohio Supreme Court has made it clear that the trial court not 

only must give the offender both notifications at the sentencing hearing, but it 

also must incorporate both notifications into its sentencing entry. State v. Qualls, 

Slip Opinion No. 2012-Ohio-1111, ¶¶18-19 (stating that court must provide 

“statutorily compliant notification to a defendant regarding postrelease control at 

the time of sentencing, including notifying the defendant of the details of the 

postrelease control and the consequences of violating postrelease control” and 

that court must incorporate these notifications into its sentencing entry but also 

recognizing that the “main focus” is “on the notification itself and not on the 

sentencing entry”); State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 

N.E.2d 596, ¶¶308-309 (remanding to trial court to correct sentencing entry when 

entry failed to specify that if Lang violated post-release control, the parole board 

could impose a maximum prison term of up to one-half of the prison term 

originally imposed); State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 

N.E.2d 9, ¶77 (stating that trial court’s language in sentencing entry that “[t]he 

defendant is ordered to serve as part of this sentence any term of post-release 

control imposed by the Parole Board, and any prison term for violation of that 

post-release control” did not comply with mandate to inform offender that the 

parole board could impose an additional prison term of up to one-half of his 

prison sentence for violating post-release control) (emphasis sic); Singleton
Pickaway App. No. 11CA15 5

(affirming remand to trial court when trial court’s sentencing entry failed to specify 

that the parole board could impose an additional prison term of up to one-half of 

his prison sentence for a violation of post-release control). We also have 

recognized that a trial court must inform the offender at the sentencing hearing of 

the “up to one-half” prison term penalty for violating post-release control and 

must repeat that information in its sentencing entry. State v. Evans, 4th Dist. No. 

10CA33, 2011-Ohio-4630, ¶8. When a court fails to comply with either the 

sentencing hearing or sentencing entry notification, “the offending portion of the 

sentence is void, must be set aside, and is subject to review and correction.” 

Triplett at ¶4, citing State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, 942 

N.E.2d 332, ¶27–29. 

{¶8} Here, no one disputes that the trial court’s sentencing entry failed to 

state that the parole board could impose up to one-half of Harris’ originallyimposed prison term if he violated post-release control. The trial court reasoned 

that it complied with this sentencing entry mandate by stating that Harris would 

have to serve “any prison term for violation of that post-release control.” 

However, this is the exact language that the Ohio Supreme Court determined did 

not comply with the sentencing entry mandate. Ketterer, supra. Consequently, 

we must likewise conclude that the trial court did not comply with the mandate to 

incorporate into its sentencing entry a notification that Harris could serve up to 

one-half of his originally-imposed prison term for violating post-release control. 

{¶9} Although we agree with Harris that the trial court did not comply 

with the sentencing entry notification regarding the “up to one-half” prison term 
Pickaway App. No. 11CA15 6

for violating post-release control, we do not agree that this failure entitles Harris 

to a de novo sentencing hearing. An offender is entitled to a new sentencing 

hearing only when the trial court failed to provide the statutorily required 

notification at the sentencing hearing. Qualls at ¶24 (stating that “when the 

notification of postrelease control was properly given at the sentencing hearing, 

the essential purpose of notice has been fulfilled and there is no need for a new 

sentencing hearing to remedy the flaw”). If the trial court provided the proper 

notifications at the sentencing hearing but failed to carry over those notifications 

to its sentencing entry, the proper remedy is for the trial court to enter a nunc pro 

tunc entry. Id. at ¶15. A trial court may use a nunc pro tunc entry to correct a 

failure to include in its sentencing entry a post-release control notification that it 

properly provided at the sentencing hearing but failed to incorporate into the 

sentencing entry. Id. Thus, “when a defendant is notified about postrelease 

control at the sentencing hearing, but notification is inadvertently omitted from the 

sentencing entry, the omission can be corrected with a nunc pro tunc entry and 

the defendant is not entitled to a new sentencing hearing.” Id. at 30. Under 

these circumstances, we may either remand the matter to the trial court so that it 

may correct its sentencing entry or correct the entry ourselves. See Fischer at 

¶¶29-30 (stating that “[c]orrecting a defect in a sentence without a remand is an 

option” when trial court “does not impose postrelease control in accordance with 

statutorily mandated terms”); Triplett at ¶6 (noting that appellate court “authorized 

to correct certain errors without remanding for resentencing”). Here, we think the 

better practice would be to remand this matter to the trial court for the limited 
Pickaway App. No. 11CA15 7

purpose of correcting its sentencing entry to specifically state that the parole 

board may impose up to one-half of Harris’ originally-imposed prison term if he 

violates post-release control. Because Harris has not disputed that the trial court 

provided the statutorily mandated notice at the sentencing hearing,1

 the trial court 

need not hold another sentencing hearing. 

{¶10} Accordingly, we sustain Harris’ assignment of error to the limited 

extent discussed and remand to the trial court so that it may enter a nunc pro 

tunc entry that incorporates the required language into its sentencing entry. 

JUDGMENT REMANDED. 

 

 

1

 A transcript of the sentencing hearing was not provided on appeal, but the trial court noted in its 

decision denying Harris’ motion for de novo sentencing that at the original sentencing hearing, it 

had orally informed Harris that the parole board could impose up to one-half of his originallyimposed sentence for violating post-release control. Without a transcript, we can only presume 
Pickaway App. No. 11CA15 8

JUDGMENT ENTRY

 It is ordered that the JUDGMENT IS REMANDED. Appellee shall pay the 

costs. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the 

Pickaway County Common Pleas Court to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL 

HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS 

COURT, it is temporarily continued for a period not to exceed sixty days upon the 

bail previously posted. The purpose of a continued stay is to allow Appellant to 

file with the Supreme Court of Ohio an application for a stay during the pendency 

of proceedings in that court. If a stay is continued by this entry, it will terminate at 

the earlier of the expiration of the sixty day period, or the failure of the Appellant 

to file a notice of appeal with the Supreme Court of Ohio in the forty-five day 

appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal 

prior to expiration of sixty days, the stay will terminate as of the date of such 

dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure. Exceptions. 

Abele, P.J. & Kline, J.: Concur in Judgment and Opinion. 

 For the Court 

 BY: ________________________ 

 William H. Harsha, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from the 

date of filing with the clerk. 

 

the regularity of the sentencing hearing. E.g., State v. Delong, 4th Dist. No. 05CA815, 2006-Ohio2753, ¶6.