[Cite as State v. Valentine, 2015-Ohio-5396.]

COURT OF APPEALS 

ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. Patricia A. Delaney, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : Case No. 15-COA-020 

 : 

STEPHEN J. VALENTINE : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court 

of Common Pleas, Case No. 14-CRI172 

JUDGMENT: REVERSED, VACATED, AND 

 REMANDED 

DATE OF JUDGMENT ENTRY: December 21, 2015 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

CHRISTOPHER R. TUNNELL CHRISTINA I. REIHELD 

ASHLAND CO. PROSECUTOR P.O. Box 532 

GARY D. BISHOP Danville, OH 43014 

110 Cottage St. 

Ashland, OH 44805 

 
Ashland County, Case No. 15-COA-020 2 

Delaney, J. 

{¶1} Appellant Stephen J. Valentine appeals from the May 1, 2015 Judgment 

Entry - Sentencing of the Ashland County Court of Common Pleas. Appellee is the 

state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶2} A statement of the facts underlying appellant’s criminal convictions is not 

necessary to our resolution of this appeal. Appellant entered negotiated pleas of guilty 

to three offenses: murder, an unspecified felony pursuant to R.C. 2903.02(A); domestic 

violence, a felony of the third degree pursuant to R.C. 2919.25(A); and tampering with 

evidence, a felony of the third degree pursuant to R.C. 2921.12(A)(1). In exchange for 

the pleas of guilty, other charges against appellant were dismissed and appellant 

waived his right to appeal the convictions and sentences. 

{¶3} The plea agreement did not prevent appellant from arguing the murder 

and domestic violence counts should merge for purposes of sentencing. During the 

plea hearing, the trial court advised appellant he would be subject to three years of 

mandatory post-release control if the domestic violence count did not merge, and three 

years of discretionary post-release control if the counts did merge. 

{¶4} At sentencing, the parties agreed the domestic violence count merged 

with the count of murder. Appellant was thus sentenced upon one count of murder and 

one count of tampering with evidence: the trial court imposed a term of 15 years to life 

consecutive to a term of 36 months. At the sentencing hearing, the trial court stated 

appellant was subject to three years of mandatory post-release control. 
Ashland County, Case No. 15-COA-020 3 

{¶5} The resulting sentencing judgment entry stated appellant would be subject 

to five years of mandatory post-release control. 

{¶6} Appellant now appeals from the judgment entry of his convictions and 

sentence. 

{¶7} Appellant raises one assignment of error: 

ASSIGNMENT OF ERROR 

{¶8} "I. THE TRIAL COURT ERRED BY FAILING TO NOTIFY VALENTINE 

OF THE PROPER TERM OF POST-RELEASE CONTROL AT SENTENCING OR 

FAILING TO IMPOSE THE PROPER TERM OF POST RELEASE CONTROL IN ITS 

SENTENCING ENTRY." 

ANALYSIS 

{¶9} In his sole assignment of error, appellant argues the trial court failed to 

advise appellant of the correct term of post-release control at sentencing and failed to 

impose the correct term of post-release control. Appellee concedes the term of postrelease control should be a 3-year discretionary term. We agree with the parties and 

therefore reverse and vacate the trial court’s imposition of post-release control. We 

remand this matter to the trial court for further proceedings. 

{¶10} Appellant is not subject to post-release control upon the count of murder 

because he is subject to parole supervision pursuant to R.C. 2967.01(E) and 

2967.13(A). Nor is he subject to post-release control upon the count of domestic 

violence which merged with the count of murder. 
Ashland County, Case No. 15-COA-020 4 

{¶11} Appellant is thus subject to a discretionary 3-year period of post-release 

control upon the count of tampering with evidence, a felony of the third degree. R.C. 

2921.12(B); R.C. 2967.28(C). 

{¶12} The term of post-release control was misstated at the sentencing hearing 

and in the resulting judgment entry, requiring remand for a de novo hearing as to postrelease control only.1 R.C. 2929.191 sets forth a procedure for the trial court to correct 

a judgment of conviction when the trial court, either at the sentencing hearing or in the 

final judgment, failed to properly notify a defendant about the requisite post-release 

control. State v. Crawley, 5th Dist. Stark No. 2010-CA-00057, 2010-Ohio-5098, ¶ 68. 

Under that statute, the trial court must conduct a hearing as described by R.C. 

2929.191(C): 

(C) On and after the effective date of this section, a court that 

wishes to prepare and issue a correction to a judgment of 

conviction of a type described in division (A)(1) or (B)(1) of this 

section shall not issue the correction until after the court has 

conducted a hearing in accordance with this division. Before a court 

holds a hearing pursuant to this division, the court shall provide 

notice of the date, time, place, and purpose of the hearing to the 

offender who is the subject of the hearing, the prosecuting attorney 

of the county, and the department of rehabilitation and correction. 

 

1 Under these circumstances, a nunc pro tunc entry pursuant to Crim.R. 36 to modify a 

sentencing entry cannot serve to correct the errors. A nunc pro tunc entry cannot go 

beyond correcting a clerical error to conform the sentencing entry to reflect that proper 

notification occurred when it did not; such action would improperly change the 

substance of the entry to include events that never occurred. State v. Qualls, 131 Ohio 

St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 26. 
Ashland County, Case No. 15-COA-020 5 

The offender has the right to be physically present at the hearing, 

except that, upon the court's own motion or the motion of the 

offender or the prosecuting attorney, the court may permit the 

offender to appear at the hearing by video conferencing equipment 

if available and compatible. An appearance by video conferencing 

equipment pursuant to this division has the same force and effect 

as if the offender were physically present at the hearing. At the 

hearing, the offender and the prosecuting attorney may make a 

statement as to whether the court should issue a correction to the 

judgment of conviction. 

{¶13} In the instant case, because the trial court misstated the term of postrelease control both at the hearing and in the sentencing entry, a remand for a de novo 

hearing is required because R.C. 2929.19(B)(3)(c) requires the court to “notify” the 

offender about post-release control and the Ohio Supreme Court has held that this 

notification must come during the sentencing hearing. State v. Harris, 8th Dist. 

Cuyahoga No. 95097, 2011-Ohio-1072, ¶ 7, citing State v. Jordan, 104 Ohio St.3d 21, 

2004-Ohio-6085, 817 N.E.2d 864 at paragraph two of the syllabus. Accordingly, we are 

bound to find that appellant's sentence with regard to post-release control must be 

corrected in accordance with R.C. 2929.191, including having a hearing using the 

procedures set forth in R.C. 2929.191(C). State v. Crawley, 5th Dist. Stark No. 2010-

CA-00057, 2010-Ohio-5098, ¶ 7. 

{¶14} A complete de novo resentencing is not required; the limited resentencing 

must cover only the imposition of post-release control and the remainder of the 
Ashland County, Case No. 15-COA-020 6 

sentence is valid under the principles of res judicata. State v. Fischer, 128 Ohio St.3d 

92, 97, 2010-Ohio-6238, 942 N.E.2d 332, 338-39, ¶ 17. 

{¶15} Accordingly, the judgment of the trial court is reversed and the matter 

remanded for the purpose of a limited resentencing pursuant to R.C. 2929.191. See, 

Crawley, supra, 2010-Ohio-5098. 

CONCLUSION 

{¶16} Appellant’s sole assignment of error is sustained, the judgment of the trial 

court regarding post-release control is reversed and vacated, and this matter is 

remanded to the trial court for a hearing pursuant to R.C. 2929.191. 

By: Delaney, J. and 

Gwin, P.J. 

Baldwin, J., concur.