[Cite as State v. Irving , 2022
- Ohio
- 4019.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD

- 22

- 009 Appellee Trial Court No. 2021CR0389

v. David A. Irving DECISION AND JUDGMENT Appellant Decided: November 10, 2022
* * * * * Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Chief Assistant Prosecuting Attorney, for appellee

. Jeffrey P. Nunnari , for appellant.
* * * * * PIETRYKOWSKI , J. {¶ 1} Appellant , David A. Irving , appeal s from a judgment entered by the Wood County Court of Common Pleas, sente ncing him to serve an aggregate term of three years in prison

. For th e reasons that follow, we affirm the judgment of the trial court. The matter is remanded to the trial court for the sole purpose of issuing a nunc pro tunc2

.

sentencing entr y that reflects the postrelease control sentence of , “up to three years, but not less than one year” that the trial court imposed at the sentencing hearing. Statement of the Case and Facts {¶ 2} On August 5, 2021, appella nt was indicted on one count of intimidation of an attorney, victim, or witness in a criminal ca se , a felony of the third degree; one count of menacing by stalking, a felony of the fourth degree ; one count of theft, a felony of the fifth degree ; one count of unauthorized use of a motor vehicle, a misdemea nor of the first degree; and seven counts of vio lating a protection order, all misdemeanors of the first degree. {¶ 3} Appellant entered into a negotiated plea agreement whereby he would enter pleas of guilty to three of the el even counts, with the remaining counts to be dismissed at sentencing. The specific offenses to w hich he would plead guilty were intimidation of an attorney, victim, or witness in a criminal case , in violation of R.C. 2921.04(B)(1) and (D) , a felony of the third degree; menacing by stalking, in violation of R.C. 2903.211(A)(1) and (B)(2)(b), a felony of the fourth degree; and violation of a protection order, in violation of R.C.2919.27(A)(1), a misdemeanor of the first degree. {¶ 4} Included in the plea agreement was the following paragraph:
K. Post R elease Control. In addition, a period of supervision by the Adult Parole Authority after release from prison is XXXX optional or ____ mandatory in this case. If I am sentenced to prison for this offense, after my prison release I ____ will or XXXX may have up to Two (2) years of control under conditions determined by the Parole Board.3

.

Thus, the plea agreement indicated that appellant, if sentenced to prison, could be subjected to a period of “up to” two years of postrelease control. At the plea he aring, however, the trial court advised appellant during its colloquy that “ [b] ecause the charge of intimidation of an attorney, victim, or witness in a criminal case] is a felony of the third degree, you could have up to three years but not less than one year of post release control.” T he trial court echoed this admonition at sentencing, stating , “Having been convicted of a felony of the third degree, the defendant will be subject, once he is released from prison, of up to three years but not less than one year of post release control throug h the Adul t Parole Authority.” On appeal, appellant takes issue with the trial court’s imposition of postrelease control.

A ssignment of Error {¶ 5} Appellant asserts the following assignment s of error on appeal:
I. Appellant’s sentence for his third degree felony offense is contrary to law and constitutes plain error. II. Appellant received ineffective assistance of counsel. Analysis {¶ 6} This court reviews sentencing challenges under R.C. 2953.08(G)(2). State v. Villa r r eal , 6th Dist. Sandusky No. S

- 17

- 020, 2018

- Ohio

- 888, ¶ 15. That statute permits an appellate court to increase, reduce, or otherwise modify a sentence or vacate the sentence and remand the matter for resentencing only if it clearly and convincingly finds4

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either of the following: (a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the sentence is contrary to law. Id. ; R.C. 2953.08(G)(2). Appellant does not challenge the trial court’s compliance with any of the sentencing statutes identified in R.C. 2953.08(G)(2)(a). Rather, he claims in his first assignment of error that his sentence is contrary to law because his “ sentencing entry subjects him to up to three years of postrelease control, but the law limits postrelease control for nonviolent third degree felonies to two years.” {¶ 7} As indicated above, appellant pleaded guilty to intimidation of an attorney, victim or witness in a criminal case, in violation of R.C. 2921.04(B)(1) and (D), which was a felony of the third degr ee. In addition, R.C. 2901.01(A)(9)(a) lists R.C. 2921.04 as an offense of violence. Accord State v. Dahms, 3d Dist. Seneca No. 13

- 16

- 16, 2017

- Ohio

- 4221, ¶ 127; State v. A.G. , 8th Dist. Cuyahoga No. 110132, 2021

- Ohio

- 4428, ¶ 20. {¶ 8} R.C. 2967.28(B)(4) prov ides that the period of post

- release control that is required “[ f

] or a felony of the third degree that is an offense of violence and is not a felony sex offense, [is] up to three years, but not less than one year.” The trial court specifi call y informe d appellant of this statutorily mandated period of post

- release control , both at appellant’s plea hearing and at his sentencing hearing.5

. {¶ 9} Unfortunately, the trial court’s January 13, 2022 judgment entry inaccurately

provides, “As part of this sente nce the Defendant is advised that upon the completion of the prison term, the Defendant MAY be subject to such further discretionary period of supervision under POST RELEASE CONTROL of up to THREE YEARS as authorized by law * * *.” (Emphasis in original.) {¶ 10} In State v. Grimes , 151 Ohio St.3d 19, 2017

- Ohio

- 2927, 85 N.E.3d 700, ¶ 1, the Supreme Court of Ohio held that “ to validly impose postrelease control when the court orally provides all the required advisements at the sentencing hearing, the
sent encing entry must contain the following information: (1) whether postrelease control is discretionary or mandatory, (2) the duration of the postrelease

- control period, and (3) a statement to the effect that the Adult Parole Authority (“APA”) will administe r the postrelease control pursuant to R.C. 2967.28 and that any violation by the offender of the conditions of postrelease control will subject the offender to the consequences set forth in that statute.” In this case, although the trial court orally prov ided all of the required advisements at the sentencing hearing, t he trial court’s judgment entry fails to validly impose postrelease c ontrol, because it incompletely advises appellant that he may be subject to a period of postrelease control of up to three years, without mention of the mandatory portion of the sentence, requiring a one - year period of postrelease control

. {¶ 11} In reaching this conclusion, we are mindful that if, as here, “the trial court gives the proper notice during the sentencing hearing, but fails to include proper notice in its sentencing judgment entry, the trial court can enter a nunc pro tunc judgment to6

.

correct the clerical error pursuant to Crim.R. 36 and need not provide a resentencing hearing pursuant to R.C. 2929.191. State v. Murray , 2012

- Ohio

- 4996, 979 N.E.2d 831, ¶ 23 (6th Dist.), citing State v. Qualls , 131 Ohio St.3d 499, 2012

- Ohio

- 1111, 967 N.E.2d 718, ¶26. Accordingly, appellant’s first assignment o f error is found not well

- taken, but the matter will be remanded to the trial court for a nunc pro tunc entry reflecting the imposition of postrelease co ntrol as explained by the trial court at appellant’s sentencing hearing. {¶ 12} Appellant argues in his second assignment of error that he received ineffective assistance of counsel, because his trial counsel failed to object to the period of postrelease control that was imposed by the trial court. {¶ 13} The law is clear that “[a]n attorney is not ineffective for failing to raise an objection which would have been denied.” State v. Draper , 10th Dist. Franklin No.
02AP

- 1371, 2003

- Ohio

- 3751, ¶ 29, c iting State v. Gibson , 69 Ohio App.2d 91, 95, 430 N.E.2d 954 ( 8th Dist. 1980). As explained above, the trial court impose d postrelease control i n this case in accor dance with the law . H ad trial counsel objected to this imposition of postrelease control, the objection would have been properly denied.
T herefore, t rial counsel, i n failing to raise such an objection, was clearly not ineffective. Appellant’s second assignment of error is found not well

- taken. {¶ 14} For all of the foregoing reasons, the j udgment of the Wood County Court of Common Pleas is affirmed. This matter is remanded to the trial court for the sole purpose of issuing a nunc pro tunc sentencing entry that reflects the postrelease control7

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sentence that was imposed by the trial court at appellant’s sentencing hearing. Appellant is ordered to pay the costs of th is appeal pursuant to App.R. 24. Judgment affirmed and remanded.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J.

____________________________ JUDGE Thomas J. Osowik , J.

__________________ __________ Myron C. Duhart , P. J. JUDGE CONCUR.

____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.