Postrelease Control

By Jus­tice Paul E. Pfeifer

It’s not unusual for crim­i­nal defen­dants to enter into plea agree­ments in order to get a reduced sen­tence. On August 15, 2002, Eric A. Qualls did just that – Qualls pled guilty to one count of aggra­vated mur­der and one count of kid­nap­ping. The state’s part of the plea agree­ment included drop­ping an addi­tional count of aggra­vated mur­der and dis­miss­ing a death-penalty specification.

The trial court accepted the plea and imposed an aggre­gate prison sen­tence of 33 years to life. Qualls did not appeal his con­vic­tion and sen­tence. But in Jan­u­ary 2010, Qualls filed a motion with the trial court for a new sen­tenc­ing hearing.

In his motion, Qualls admit­ted that he was informed at his sen­tenc­ing hear­ing that he would be sub­ject to five years of postre­lease con­trol upon his release from prison. Qualls main­tained that he was not sub­ject to postre­lease con­trol because his con­vic­tion for aggra­vated mur­der was a spe­cial felony.

Why would that mat­ter? The postrelease-control statute – which defines when and how postre­lease con­trol is to be imposed – is not imposed fol­low­ing a con­vic­tion for aggra­vated mur­der, which is a special-category felony. Qualls argued that because the postrelease-control statute was not applic­a­ble to him, he was enti­tled to a new sen­tenc­ing hear­ing to cor­rect the alleged error.

In its response, the state explained that postre­lease con­trol was only imposed for the kid­nap­ping offense, not the aggra­vated mur­der. The state also asserted that Qualls had been orally informed of postre­lease con­trol at his sen­tenc­ing hear­ing, had con­sulted with his attor­ney about it at that time, and had ver­i­fied that he under­stood why it was being imposed.

But, in for­mu­lat­ing its response to Qualls’s motion, the state real­ized that despite noti­fi­ca­tion at the sen­tenc­ing hear­ing, the 2002 entry into the court records con­tained no men­tion of postre­lease con­trol. The state there­fore asked the trial court to issue a “nunc pro tunc” entry reflect­ing that the trial court had advised Qualls of postre­lease con­trol at his sen­tenc­ing hearing.

What does “nunc pro tunc” mean? It’s a Latin phrase mean­ing “now for then.” In a legal con­text, it refers to acts that are allowed to be done after the time when they should be done. So, when the state asked the trial court to issue a nunc pro tunc entry, it was ask­ing that the record be cor­rected after the fact to show that Qualls had been advised of postre­lease con­trol in 2002, when he was orig­i­nally sentenced.

Qualls argued that because the 2002 sen­tenc­ing entry did not men­tion postre­lease con­trol, his sen­tence was void, and that he was enti­tled to a new sen­tenc­ing hearing.

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The trial court dis­agreed with Qualls and agreed with the state’s argu­ments. The court ruled that postre­lease con­trol applied to Qualls’s con­vic­tion for kid­nap­ping and that Qualls was not enti­tled to a new sen­tenc­ing hear­ing, because Qualls had admit­ted that he had been orally advised about postre­lease con­trol at his 2002 sen­tenc­ing hearing.

The trial court then issued a nunc pro tunc sen­tenc­ing entry that included two new para­graphs indi­cat­ing that Qualls had been noti­fied that he was sub­ject to postre­lease control.

When the court of appeals reviewed the case, it held that the trial court had cor­rectly over­ruled the motion for a new sen­tenc­ing hear­ing and that a nunc pro tunc entry was the proper rem­edy to cor­rect the sen­tenc­ing entry – con­sid­er­ing that Qualls had admit­ted that he was informed at the 2002 sen­tenc­ing hearing.

Next, the case came to us – the Supreme Court of Ohio – for final review. The ques­tion before us was this: If a defen­dant is noti­fied about postre­lease con­trol at the sen­tenc­ing hear­ing, but that noti­fi­ca­tion is inad­ver­tently omit­ted from the sen­tenc­ing entry, can that omis­sion be cor­rected with a nunc pro tunc entry?

In a case from 2011, our court explained that when a trial court prop­erly noti­fied a defen­dant of postre­lease con­trol at the sen­tenc­ing hear­ing, but the ini­tial sen­tenc­ing entry did not accu­rately reflect the details of the noti­fi­ca­tion, the imper­fect sen­tenc­ing entry can be cor­rected through a nunc pro tunc entry.

In that sit­u­a­tion, “no new sen­tenc­ing hear­ing is required, because the trial court’s fail­ure to include the postrelease-control term in the orig­i­nal sen­tenc­ing entry was man­i­festly a cler­i­cal error.”

The pri­mary dif­fer­ence in the 2011 case is that in Qualls’s case the sen­tenc­ing entry con­tained no men­tion of postre­lease con­trol, while the sen­tenc­ing entry in the 2011 case imposed an incor­rect term of postre­lease con­trol. But we deter­mined that given the spe­cific cir­cum­stances of Qualls’s case, a nunc pro tunc entry can be used to cor­rect the fail­ure to include in the sen­tenc­ing entry noti­fi­ca­tion of postre­lease con­trol that was prop­erly given, orally, in the sen­tenc­ing hearing.

In other cases involv­ing the postrelease-control statute, our focus has been on the ques­tion of noti­fi­ca­tion itself – was the defen­dant informed of postre­lease con­trol at sen­tenc­ing? Qualls’s case pre­sented a new issue.

There­fore, our prece­dents from other cases requir­ing a new sen­tenc­ing hear­ing to cor­rectly impose postre­lease con­trol do not apply to this sit­u­a­tion. The ratio­nale under­ly­ing those other deci­sions is that a sen­tence that does not prop­erly impose postre­lease con­trol is void, and a new sen­tenc­ing hear­ing is nec­es­sary, because the trial court’s erro­neous impo­si­tion of postre­lease con­trol must be cor­rected in a new hear­ing, where the defen­dant receives noti­fi­ca­tion that com­plies with the postrelease-control statute.

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.

We thus con­cluded – by a six-to-zero vote – that the orig­i­nal sen­tenc­ing entry inad­ver­tently omit­ted that noti­fi­ca­tion was given. It 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, and the defen­dant is not enti­tled to a new sen­tenc­ing hearing.

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EDITOR’S NOTE: The case referred to is: State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111. Case No. 2011–0202. Decided March 20, 2012. Major­ity opin­ion writ­ten by Jus­tice Robert R. Cupp.

Posted by Paul Pfeifer on Nov 12 2012. You can follow any responses to this entry through the RSS Feed. Both comments and pings are currently closed.