State v. Ewers

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[Cite as State v. Ewers, 2011-Ohio-1354.] COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee JUDGES: Hon. William B. Hoffman, P.J. Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J. -vsCase No. 10CAA090081 RACHEL EWERS Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case Nos. 07 CRI 05258 and 07 CRI 06323 JUDGMENT: Reversed and Remanded DATE OF JUDGMENT ENTRY: March 21, 2011 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant BRIAN J. WALTER Assistant Prosecuting Attorney Delaware County Prosecutor's Office 140 North Sandusky Street Delaware, Ohio 43015 O. ROSS LONG 125 North Sandusky Street Delaware, Ohio 43015 Delaware County, Case No. 10CAA090081 2 Hoffman, P.J. {¶1} Defendant-appellant Rachel Ewers appeals the September 17, 2010 Second Nunc Pro Tunc Judgment Entry On Sentence entered by the Court of Common Pleas of Delaware County. The State of Ohio is plaintiff-appellee. STATEMENT OF THE CASE1 {¶2} On October 11, 2007, the trial court sentenced Appellant on three counts of Endangering Children. On July 15, 2010, the trial court filed a Nunc Pro Tunc Judgment Entry On Sentence to comply with State v. Baker, 119 Ohio St.3d 1197. In the later entry, the trial court also corrected a part of its original sentence to specify Appellant shall be subject to a mandatory period of post-release control of three years. {¶3} Thereafter, Appellant filed a Motion to Restore Resentencing and Motion for Jail Time Credit. The trial court denied said motion via Judgment Entry filed September 17, 2010, and stated therein the basis of its amended entry dated July 15, 2010, regarding post release control was to comply with R.C. 2929.191(A)(1). Thereafter, the trial court entered its Second Nunc Pro Tunc Judgment Entry On Sentence which is the subject of the instant appeal. {¶4} Appellant assigns as error: {¶5} I. THE TRIAL COURT ERRED IN NOT HOLDING A DE NOVO RE- SENTENCING HEARING FOR THE APPELLANT IN THIS CASE. {¶6} Herein, Appellant maintains the trial court erred in resentencing her pursuant to R.C. 2929.191(A)(1) rather than conducting a de novo resentencing hearing 1 A rendition of the underlying facts is unnecessary for our disposition of Appellant s sole assignment of error. Delaware County, Case No. 10CAA090081 3 as provided in R.C. 2929.191(C). The State concedes Appellant s sentence cannot be corrected by the [SECOND] nunc pro tunc entry because Appellant was originally sentenced after July 11, 2006, the effective date of R.C. 2929.191.2 We agree. {¶7} Appellant s sole assignment of error is sustained. The judgment of the trial court is reversed and the matter remanded for resentencing. By: Hoffman, P.J. Edwards, J. and Delaney, J. concur s/ William B. Hoffman_________________ HON. WILLIAM B. HOFFMAN s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY 2 See Appellee s Brief at p.4. Delaware County, Case No. 10CAA090081 4 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsRACHEL EWERS Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. 10CAA090081 For the reason stated in our accompanying Opinion, the September 17, 2010 Second Nunc Pro Tunc Judgment Entry On Sentence is reversed and the matter remanded to the trial court for further proceedings in accordance with our Opinion and the law. s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

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