[Cite as State v. Ivey, 2017-Ohio-4162.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellee 

 v. 

DALE IVEY 

 Appellant 

C.A. No. 28162 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR 2003-12-3744 

DECISION AND JOURNAL ENTRY 

Dated: June 7, 2017 

 

CARR, Judge. 

{¶1} Defendant-Appellant Dale Ivey appeals from the judgment of the Summit County 

Court of Common Pleas. This Court affirms in part, vacates in part, and remands the matter for 

the issuance of a nunc pro tunc entry. 

I. 

{¶2} In 2003, Ivey was indicted on one count of aggravated murder, one of count of 

murder, and one count of escape. The matter proceeded to a jury trial, after which, the jury 

found him guilty of all counts. After finding that the charges of aggravated murder and murder 

were of dissimilar import, the trial court sentenced Ivey to life imprisonment with parole 

eligibility after 20 full years for the crime of aggravated murder, 15 years to life for the crime of 

murder, and 8 years for the crime of escape. The trial court ordered the sentence for escape to 

run consecutively to the sentences for aggravated murder and murder, which were ordered to run 

concurrently to each other. The trial court stated at the sentencing hearing that “the parole board 
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* * * may impose a period of post-release control possibly up to five or more years[]” and in the 

entry stated that Ivey was “subject to post-release control to the extent the parole board may 

determine as provided by law.” 

{¶3} Ivey filed a notice of appeal in 2004; however, the appeal was dismissed after he 

failed to file a brief. Years later, Ivey began filing various motions in the trial court. In October 

2015, he filed the motion that led to his resentencing and this appeal: a motion for resentencing 

based upon errors in his post-release control notification and in the trial court’s failure to merge 

his aggravated murder and murder convictions. The State conceded both errors and agreed that 

Ivey should be resentenced. 

{¶4} On February 23, 2016, the trial court held what amounted to a de novo 

resentencing hearing. The trial court merged Ivey’s aggravated murder and murder convictions, 

sentencing him to life imprisonment with parole eligibility after 20 years on the aggravated 

murder charge. The trial court sentenced him to 8 years on the escape charge and ordered that 

sentence to run consecutively to the sentence for aggravated murder. At the sentencing hearing, 

the trial court notified Ivey that he would be subject to a mandatory term of 3 years of postrelease control; however, the March 3, 2016 sentencing entry states that he would be subject to 5 

years of post-release control. On March 11, 2016, the trial court issued a nunc pro tunc entry to 

correct the name of counsel appointed for Ivey’s appeal. 

{¶5} Ivey has appealed both the March 3, 2016, and the March 11, 2016 entries, raising 

five assignments of error for our review. 

II. 

{¶6} Before addressing the merits of the appeal, we address whether the trial court had 

jurisdiction to conduct a de novo resentencing of Ivey. Ivey’s 2004 sentencing entry was a final, 
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appealable order. See State v. McIntyre, 9th Dist. Summit No. 27670, 2016-Ohio-93, ¶ 10 

(listing the elements necessary for a final, appealable order in a criminal case). “Absent statutory 

authority, a trial court is generally not empowered to modify a criminal sentence by 

reconsidering its own final judgment. Once a final judgment has been issued pursuant to 

Crim.R. 32, the trial court’s jurisdiction ends.” (Internal quotations and citations omitted.) Id. at 

¶ 11. However, trial courts do “retain continuing jurisdiction to correct a void sentence and to 

correct a clerical error in a judgment[.]” State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, ¶ 

20. 

{¶7} In the instant matter, Ivey’s post-release control notification at both the original 

sentencing hearing and in the 2004 entry was deficient. Ivey was subject to post-release control 

based solely on his conviction for escape, a felony of the second degree. See R.C. 2921.34(B). 

Thus, Ivey was subject to a mandatory three-year term of post-release control upon his release 

from prison. R.C. 2967.28(B)(2). At the 2004 sentencing hearing, the trial court stated that “the 

parole board * * * may impose a period of post-release control possibly up to five or more 

years[,]” and in the entry the trial court provided that Ivey was “subject to post-release control to 

the extent the parole board may determine as provided by law.” Neither notified Ivey that he 

was subject to a mandatory three years of post-release control. See State v. Grimes, Slip Opinion 

No. 2017-Ohio-2927, ¶ 9. The Supreme Court of Ohio has concluded that, “when a judge fails 

to impose statutorily mandated post[-]release control as part of a defendant’s sentence, that part 

of the sentence is void and must be set aside.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio6238, ¶ 26. “The new sentencing hearing to which an offender is entitled * * * is limited to 

proper imposition of post[-]release control.” Id. at paragraph two of the syllabus. Accordingly, 
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the post-release control portion of Ivey’s 2004 sentence was void and he was entitled to a limited 

resentencing hearing so that he could be properly notified of his post-release control obligations. 

{¶8} The trial court, however, did not conduct a resentencing hearing limited to 

providing the required post-release control notification. Instead, it conducted a de novo hearing. 

In part, it did so because it found that it was required to merge the offenses of aggravated murder 

and murder because they were allied. However, even if the trial court erred in 2004 in finding 

the offenses to be of dissimilar import, the trial court could only reconsider that final judgment if 

such an error rendered the sentence void. See Raber at ¶ 20. “[A] trial court’s failure to merge 

offenses for purposes of sentencing, where the court has not previously found the offenses to be 

allied (either expressly or by merely failing to make such a finding), does not result in a void 

sentence, but rather a voidable one subject to challenge only on direct appeal.” In re D.M., 9th 

Dist. Medina No. 16CA0019-M, 2017-Ohio-232, ¶ 9, citing State v. Williams, Slip Opinion No. 

2016-Ohio-7658, ¶ 23, 26. In the instant matter, the trial court in 2004 found the offenses to be 

of dissimilar import, and therefore, not allied. Irrespective of the propriety of that decision, it is 

not void. See id. Accordingly, the trial court did not have jurisdiction to resentence Ivey aside 

from providing appropriate post-release control notification. See Raber, 134 Ohio St.3d 350, 

2012-Ohio-5636, at ¶ 20. To the extent the trial court exceeded its authority in resentencing 

Ivey, the entry is vacated. See State v. Ibn-Ford, 9th Dist. Summit No. 27380, 2015-Ohio-753, ¶ 

7, quoting State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 27. (“A void sentence is one 

that a court imposes despite lacking subject-matter jurisdiction or the authority to act.”) 

{¶9} We note that while the trial court correctly notified Ivey of post-release control at 

the 2016 sentencing hearing, the trial court stated in the sentencing entry that Ivey would be 

subject to 5 years, instead of 3 years of post-release control. See Grimes, Slip Opinion No. 2017-
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Ohio-2927, at syllabus. “Where a sentencing hearing transcript makes clear what the trial court 

decided, the trial court has jurisdiction to correct typographical errors in a sentencing entry via a 

nunc pro tunc entry.” Ibn-Ford at ¶ 8; see also State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio1111, ¶ 13 (noting that a new sentencing hearing is not required “when a trial court properly 

notified a defendant of post[-]release control at the sentencing hearing, but the initial sentencing 

entry did not accurately reflect the details of the notification[ because] the imperfect sentencing 

entry can be corrected through a nunc pro tunc entry[]”). Thus, upon remand, through a nunc pro 

tunc entry, the trial court can correct the sentencing entry to reflect that Ivey is subject to three 

years of mandatory post-release control. See R.C. 2967.28(B)(2). 

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT STATED 

THAT IT LACKED THE POWER TO FORCE THE STATE TO STIPULATE 

TO A PRIOR CONVICTION. 

ASSIGNMENT OF ERROR II

APPELLANT SUFFERED FROM INEFFECTIVE ASSISTANCE OF 

COUNSEL WHEN DEFENSE COUNSEL FAILED TO MAKE TIMELY 

OBJECTIONS AND FAILED TO ASK FOR A LIMITING INSTRUCTION ON 

IMPROPER PRIOR BAD ACT TESTIMONY. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BY NOT GRANTING THE CRIMINAL RULE 

29 MOTION AS THERE WAS INSUFFICIENT EVIDENCE TO SHOW 

DEFENDANT ACTED WITH PURPOSE. 

{¶10} In his first three assignments of error, Ivey raises issues that arose from his 2004 

convictions and sentence. However, “[t]he scope of an appeal from a resentencing hearing in 

which a mandatory term of post[-]release control is imposed is limited to issues arising at the 

resentencing hearing.” Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph four of the 
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syllabus. Thus, the arguments that Ivey raises in his first three assignments of error are not 

properly before this Court and cannot be addressed in this appeal. 

ASSIGNMENT OF ERROR IV

THE TRIAL COURT FAILED TO COMPLY WITH R.C. 2929.11, R.C. 2929.12 

BY SENTENCING IVEY TO THE MAXIMUM PRISON TERM ON THE 

ESCAPE CONVICTION BEFORE CONSIDERING THE STATUTORY 

FACTORS. 

{¶11} In Ivey’s fourth assignment of error, he challenges the sentence for escape 

imposed by the trial court at the resentencing. Because we have already determined that the trial 

court could not resentence Ivey on this charge, and have vacated the entry to the extent he was 

resentenced on it, this assignment of error has been rendered moot, and we decline to address it. 

See App.R. 12(A)(1)(c). 

ASSIGNMENT OF ERROR V

THE TRIAL COURT FAILED TO AFFORD APPELLANT THE RIGHT TO 

ALLOCUTION AS PROVIDED BY OHIO CRIMINAL RULE 32(A)[(1)]. 

{¶12} Ivy argues in his fifth assignment of error that the trial court erred by failing to 

allow him an opportunity to allocute at the resentencing hearing. We do not agree. 

{¶13} “When sentencing an offender, a trial court must ‘[a]fford counsel an opportunity 

to speak on behalf of the defendant and address the defendant personally and ask if he or she 

wishes to make a statement in his or her own behalf or present any information in mitigation of 

punishment.’ Crim.R. 32(A)(1). ‘R.C. 2929.19(A) and Crim.R. 32(A)(1) unambiguously 

require that an offender be given an opportunity for allocution whenever a trial court imposes a 

sentence at a sentencing hearing.’” State v. Johnson ̧ 9th Dist. Summit No. 28268, 2017-Ohio913, ¶ 5, quoting State v. Jackson, Slip Opinion No. 2016-Ohio-8127, ¶ 10, citing State v. 

Campbell, 90 Ohio St.3d 320 (2000), paragraph one of the syllabus. “The purpose of allocution 
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is to permit the defendant to speak on his own behalf or present any information in mitigation of 

punishment.” (Internal quotations and citation omitted.) Johnson at ¶ 5. “Both the Ohio 

Supreme Court and this Court have recognized that a trial court complies with a defendant’s 

right of allocution when it personally addresses the defendant and asks whether he has anything 

to say.” State v. Daniels, 9th Dist. Summit No. 26406, 2013-Ohio-358, ¶ 14. 

{¶14} Assuming, without deciding, that a defendant also has a right to allocution at a 

resentencing limited to the proper notification of a defendant’s post-release control obligations, 

see State v. Mays, 8th Dist. Cuyahoga No. , 2011-Ohio-1565, ¶ 10 (concluding that a defendant 

does not have such a right), we conclude that the trial court complied with the requirement. Prior 

to notifying Ivey about post-release control, on multiple occasions, the trial court asked Ivey 

what he would like to tell the trial court. After each question, Ivey and the trial court then 

engaged in a dialogue. Further, once again after the notification, the trial court asked Ivey if 

there was anything he wanted to say with the respect to the sentence imposed. 

{¶15} Moreover, even if we were to determine that the trial court did somehow err, we 

would conclude the error was harmless. “[T]he trial court had no discretion to exercise with 

respect to the imposition of post-release control.” State v. Carr, 2d Dist. Montgomery No. 

24438, 2012-Ohio-1850, ¶ 15. Because of that, we fail to see how anything else that Ivey would 

have said would have led to a different result. See id. at ¶ 17; see also State v. Fry, 125 Ohio 

St.3d 163, 2010-Ohio-1017, ¶ 193 (applying harmless error to a violation of Crim.R. 32(A)). 

{¶16} Ivey’s fifth assignment of error is overruled. 

III. 

{¶17} The judgment entry of the Summit County Court of Common Pleas is vacated to 

the extent discussed above. Upon remand, the trial court can correct the typographical error in 
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the post-release control term via a nunc pro tunc entry. We are unable to address the merits of 

Ivey’s first three assignments of error. Ivey’s fourth assignment of error has been rendered 

moot, and we overrule Ivey’s fifth assignment of error. The judgment of the Summit County 

Court of Common Pleas is affirmed in part, vacated in part, and the matter is remanded for the 

issuance of a nunc pro tunc entry. 

Judgment affirmed in part, 

vacated in part, 

and cause remanded. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 DONNA J. CARR 

 FOR THE COURT 
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HENSAL, P. J. 

TEODOSIO, J. 

CONCUR. 

APPEARANCES: 

DONALD GALLICK, Attorney at Law, for Appellant. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant 

Prosecuting Attorney, for Appellee.