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.
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.
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.