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Failure to Record Properly Imposed Term of Postrelease Control In Court's Journal May Be Corrected by 'Nunc Pro Tunc' Entry

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2011-0202.  State v. Qualls, Slip Opinion No. 2012-Ohio-1111.
Meigs App. No. 10CA8, 2010-Ohio-5316.  Judgment affirmed.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Cupp, and McGee Brown, JJ., concur.
Lanzinger, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-1111.pdf

Video clip View oral argument video of this case.

(March 20, 2012) The Supreme Court of Ohio held today that when a trial court properly notifies a criminal defendant at the time of sentencing about the term of postrelease control to which he will be subject upon completing his prison sentence, but the court inadvertently omits mention of postrelease control in its journal entry recording the sentence, that omission can be remedied by means of a “nunc pro tunc” (corrected) journal entry, and the defendant is not entitled to a new sentencing hearing.

The court’s 6-1 decision, authored by Justice Robert R. Cupp, affirmed a ruling of the Fourth District Court of Appeals.

The case involved the sentencing of Eric Qualls of Meigs County, who was convicted of aggravated murder and kidnapping in 2002.

At his sentencing hearing, Qualls received an aggregate term of from 33 years to life in prison.  He was also orally advised by the court that, if he should be released from prison, he would be subject to an additional five years of postrelease control by the state. Qualls did not appeal the judgment of the trial court.

In 2010, Qualls filed a petition in the Meigs County Court of Common Pleas asserting that he was entitled to a new sentencing hearing because the trial court had improperly sentenced him to a term of postrelease control for the crime of aggravated murder, which was contrary to law. In responding to that petition, the state discovered that the written entry in the trial court’s journal recording Qualls’ sentence had inadvertently omitted mention of postrelease control. The state filed a motion asking the court to correct that omission by recording a nunc pro tunc (in Latin, “now for then”) entry in its journal to accurately reflect the term of postrelease control the judge had actually imposed. Qualls opposed the state’s motion. The trial court rejected Qualls’ petition for a new sentencing hearing based on its finding that the term of postrelease control had been correctly imposed for his kidnapping conviction, not his aggravated murder conviction. The court also granted the state’s motion to correct the trial record by journalizing the requested nunc pro tunc entry.

Qualls appealed to the Fourth District Court of Appeals, which affirmed the actions of the trial court.  In response to a motion by Qualls, however, the Fourth District certified that its ruling with regard to the sufficiency of a nunc pro tunc journal entry to correct the trial court’s error was in conflict with a 2010 decision, State v. Lee, in which the Sixth District held that a defendant whose sentencing entry did not include postrelease control was entitled to a new sentencing hearing. The Supreme Court agreed to hear the case to resolve the conflict between appellate districts.

In today’s decision affirming the Fourth District, Justice Cupp acknowledged that in a line of prior decisions addressing a trial court’s failure to impose a required term of postrelease control at the time of sentencing, or pronouncement of an incorrect term of postrelease control, the Supreme Court has held that a new sentencing hearing must be conducted. He pointed out, however, that in this case Qualls admitted that he was properly notified of a five-year term of postrelease control at the time he was sentenced, and the only error by the trial court was its failure to accurately reflect the sentence that was actually pronounced at trial in its  journal entry.

“Our review of our many other postrelease-control precedents shows that the situation in this case ... differs from those other precedents,” wrote Justice Cupp. “In no previous case in which a sentencing entry was silent as to postrelease control have we specifically considered the significance of proper postrelease-control notification at the sentencing hearing. Moreover, we have not specifically evaluated the efficacy of a trial court’s use of a nunc pro tunc entry to correct a deficient sentencing entry when the sole error in imposing postrelease control was the failure to incorporate the notification that was given at the sentencing hearing into the entry of conviction.”

“Here, 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 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.”

“But 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. The original sentencing entry can be corrected to reflect what actually took place at the sentencing hearing, through a nunc pro tunc entry, as long as the correction is accomplished prior to the defendant’s completion of his prison term.”

Justice Cupp’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Yvette McGee Brown.

Justice Judith Ann Lanzinger entered a dissent stating that in her view Qualls’ case should be remanded to the trial court for correction of the defective journal entry through the hearing process prescribed by the legislature when it enacted  R.C. 2929.191, effective July 11, 2006.  She noted that the Supreme Court held in a 2009 decision, State v. Singleton, that the R.C. 2929.191 hearing  process must be followed to correct postrelease control errors that occurred after the law’s effective date, but also held that the statute did not apply to errors, like the defective 2002 journal entry in Qualls’ case, that occurred before the new law took effect. 

Justice Lanzinger wrote: “I would overrule State v. Singleton ... and hold that the procedure enacted by the General Assembly to correct postrelease-control error may be appliedretroactively. ... R.C. 2929.191 provides that a trial court may, after conducting a hearing with notice to the offender, the prosecuting attorney, and the Department of Rehabilitation and Correction, correct an original judgment of conviction by issuing a nunc pro tunc entry that includes statements that the offender will be supervised under R.C. 2967.28 after the offender leaves prison and that the parole board may impose a prison term if the offender violates postrelease control. ... R.C. 2929.191 specifically states that it applies when a court fails to include a statement regarding postrelease control.  Because I agree with the General Assembly that the failure to include postrelease-control notification in a sentencing entry should be remedied by conducting a hearing pursuant to 2929.191, I would reverse the judgment of the court of appeals.”

Colleen S. Williams, 740.992.6371, for the state and Meigs County prosecutor's office.

Katherine A. Szudy, 614.466.5394, for Eric Qualls.