[Cite as State v. Pelfrey, 2013-Ohio-593.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

 : 

STATE OF OHIO, : 

 : Case No: 11CA3418 

 Plaintiff-Appellee, : 

 : 

 v. : 

 : DECISION AND

JOSEPH PELFREY, : JUDGMENT ENTRY

 : 

 Defendants-Appellants. : RELEASED 01/29/13 

APPEARANCES:

Joseph Pelfrey, Chillicothe, Ohio, pro se Appellant. 

Mark E. Kuhn, Scioto County Prosecuting Attorney, Portsmouth, Ohio, for Appellee. 

Kline, J.: 

{¶1} Joseph Pelfrey (hereinafter “Pelfrey”) appeals the judgment of the Scioto 

County Court of Common Pleas, which denied his motion for a de novo sentencing 

hearing. On appeal, Pelfrey contends that he is entitled to a de novo sentencing 

hearing because his judgment of conviction does not properly impose postrelease 

control. We disagree. Because Pelfrey was properly notified of postrelease control at 

his joint-change-of-plea-and-sentencing hearing, the trial court may correct Pelfrey’s 

judgment of conviction in a nunc pro tunc entry. Accordingly, we remand this cause to 

the trial court for that limited purpose. 

I. 

{¶2} A Scioto County Grand Jury returned a multiple-count indictment against 

Pelfrey. Initially, he pled not guilty to the charges. But following plea negotiations, 
Scioto App. No. 11CA3418 2 

Pelfrey agreed to plead guilty to (1) aggravated robbery, (2) having weapons while 

under disability, and (3) a firearm specification. 

{¶3} During Pelfrey’s joint-change-of-plea-and-sentencing hearing, the trial 

court provided the following notification about postrelease control: 

Post release control is mandatory in this case and the 

period of time will be five years, but you will enter into an 

agreement with the parole authority on how you are to 

conduct your life and if you violate that agreement certain 

things could happen. You could spend time in the County 

Jail, the agreement could be modified and become more 

restrictive upon your life style, the period of time you’re on it 

could be increased to a maximum of five years or ultimately 

for a violation the parole authority could send you back to 

prison but for no more than half of your original sentence. 

 In addition the law also provides if a person is on post 

release control and they commit a new felony the sentencing 

court, in addition to any time imposed for the new felony, can 

also revoke post release control and can sentence a person 

back to prison for the greater of one year or the remaining 

time a person has under post release control. Transcript at 

4-5. 

{¶4} Pelfrey’s judgment of conviction, however, contains only the following 

postrelease-control language: 
Scioto App. No. 11CA3418 3 

Post Release Control is: 

[X] MANDATORY

[ ] OPTIONAL

For a term of 5 years, as well as the consequences for 

violating conditions of post release control imposed by the 

Parole Board under Revised Code Section 2967.28. The 

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. 

Thus, unlike the notification at the joint-change-of-plea-and-sentencing hearing, 

Pelfrey’s judgment of conviction does not contain specific details of what may happen if 

he violates the conditions of postrelease control. 

{¶5} On September 10, 2010, Pelfrey filed a pro se motion for “de novo 

sentencing.” Pelfrey argued that his judgment of conviction does not properly impose 

postrelease control and, as a result, that his sentence is void. The trial court, however, 

denied Pelfrey’s motion for de novo sentencing. 

{¶6} Pelfrey appeals and asserts the following assignment of error: “The Trial 

Court Erred When It Denied Defendant A De Novo Re-Sentencing To Correct A Void 

Sentence.” 

II. 

{¶7} In his sole assignment of error, Pelfrey contends that his judgment of 

conviction does not properly impose postrelease control. As a result, Pelfrey argues 

that he is entitled to a de novo sentencing hearing. We disagree. Because Pelfrey was 
Scioto App. No. 11CA3418 4 

properly notified of postrelease control at the joint-change-of-plea-and-sentencing 

hearing, the trial court may correct Pelfrey’s judgment of conviction in a nunc pro tunc 

entry. (Pelfrey does not dispute that he was properly notified of postrelease control 

during the hearing. Rather, Pelfrey bases his argument solely on the language found in 

the judgment of conviction.) 

{¶8} To resolve Pelfrey’s appeal, “we must interpret and apply the statutes 

related to postrelease control and parole. Thus, our review is de novo.” State v. Lofton, 

4th Dist. No. 11CA16, 2012-Ohio-2274, ¶ 7, citing State v. Jenkins, 4th Dist. No. 

10CA3389, 2011-Ohio-6924, ¶ 9. 

{¶9} Under R.C. 2929.19(B)(2), a sentencing court must 

notify an offender about several aspects of postrelease 

control, including that “if a period of supervision is imposed 

following the offender’s release from prison * * * and if the 

offender violates that supervision * * * the parole board may 

impose a prison term, as part of the sentence, of up to onehalf of the stated prison term originally imposed upon the 

offender.” (Omissions sic.) State v. Smith, 2012-Ohio-2728, 

972 N.E.2d 646, ¶ 5 (1st Dist.), quoting R.C. 

2929.19(B)(2)(e). 

{¶10} Significantly, the Supreme Court of Ohio has held that, 

where notification was properly given at the sentencing 

hearing, there is no substantive prejudice to a defendant if 

the sentencing entry’s failure to mention postrelease control 
Scioto App. No. 11CA3418 5 

is remedied through a nunc pro tunc entry. Our precedents 

requiring a new sentencing hearing (either de novo or 

limited) to correctly impose postrelease control do not apply 

to this situation. The rationale underlying those decisions is 

that a sentence that does not properly impose postrelease 

control is void, and a remand for a new sentencing hearing is 

necessary, because the trial court’s erroneous imposition of 

postrelease control must be corrected in a new hearing at 

which the defendant is present to receive notification that 

complies with the statutes. State v. Qualls, 131 Ohio St.3d 

499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 23. 

{¶11} Here, Pelfrey was notified of postrelease control at a joint-change-of-pleaand-sentencing hearing. And based on the language quoted in paragraph 3 of this 

opinion, we find that the trial court provided a proper notification of postrelease control. 

Furthermore, 

[b]ecause appellant’s plea and sentencing occurred together 

at the same hearing, at the same time, we find no reason to 

segregate the separate portions of the hearing into two 

discrete and distinct hearings. The trial court informed 

[Pelfrey] that if he was sentenced to prison, post-release 

control would be part of his sentence, then proceeded to 

sentence him to prison. State v. Jackson, 12th Dist. Nos. 

CA2005-02-033 & CA2005-03-051, 2006-Ohio-1147, ¶ 18.
Scioto App. No. 11CA3418 6 

{¶12} Nevertheless, we agree that Pelfrey’s judgment of conviction does not 

contain a proper notification of postrelease control. We encountered a very similar fact 

pattern in State v. Harris, 4th Dist. No. 11CA15, 2012-Ohio-2185. As is the case here, 

the defendant in Harris was properly notified of postrelease control at the sentencing 

hearing. And as is the case here, “the trial court’s sentencing entry failed to state that 

the parole board could impose up to one-half of [Appellant’s] originally-imposed prison 

term if he violated post-release control.” Id. at ¶ 8. Therefore, in Harris, we held the 

following:

Although we agree with [Appellant] that the trial court did not 

comply with the sentencing entry notification regarding the 

“up to one-half” prison term for violating post-release control, 

we do not agree that this failure entitles [Appellant] 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 
Scioto App. No. 11CA3418 7 

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 [State 

v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 

332,] 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”); [State v. Triplett, 4th Dist. No. 

10CA35, 2011-Ohio-4628,] 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 purpose 

of correcting its sentencing entry to specifically state that the 

parole board may impose up to one-half of [Appellant’s] 
Scioto App. No. 11CA3418 8 

originally-imposed prison term if he violates post-release 

control. Because [Appellant] has not disputed that the trial 

court provided the statutorily mandated notice at the 

sentencing hearing, the trial court need not hold another 

sentencing hearing. (Internal footnote omitted.) Harris at ¶ 

9. 

{¶13} We apply the reasoning of Harris to the present case. Therefore, as we 

did in Harris, “we sustain [Pelfrey’s] 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.” Id. at ¶ 10.

CAUSE REMANDED. 
Scioto App. No. 11CA3418 9 

JUDGMENT ENTRY

 It is ordered that the CAUSE IS REMANDED and that the Appellee shall pay the 

costs. 

The Court finds that there were reasonable grounds for this appeal. 

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

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

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

27 of the Rules of Appellate Procedure. Exceptions. 

Harsha, J. & Abele, J.: Concur in Judgment & Opinion. 

For the Court 

 

 

 BY:_____________________________ 

 Roger L. Kline, 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.