[Cite as State v. Hull, 2017-Ohio-468.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104464




                                          STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                          JASON E. HULL

                                                              DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-590277-A

        BEFORE:           Jones, P.J., Boyle, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: February 9, 2017
ATTORNEY FOR APPELLANT

John P. Parker
988 East 185th Street
Cleveland, Ohio 44119


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Margaret Kane
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

       {¶1} Defendant-appellant, Jason Hull, appeals his court costs and length of

postrelease control.       The state, pursuant to Loc.App.R. 16(B), concedes the error.   We

reverse and remand.

       {¶2} In 2016, Hull pleaded guilty to aggravated murder, felonious assault,

endangering children, and having weapons while under disability with attendant forfeiture

specifications in the death of his girlfriend’s two-year-old daughter.         The felonious

assault and endangering children counts merged with the aggravated murder count and

the state chose to proceed to sentencing on the aggravated murder count.               At the

sentencing hearing, the court imposed the recommended agreed sentence of 20 years to

life for aggravated murder, a concurrent three years for having weapons while under

disability, and five years of postrelease control on the weapons charge.           The court

waived fines and court costs, but the journal entry imposed costs.

       {¶3} On appeal, Hull raises two assignments of error, both of which the state

concedes.    He first argues that court costs were improperly imposed in the journal entry

due to a clerical error.

       {¶4} During sentencing, the trial court stated, “[i]n light of all the circumstances in

this case, the kind of penalty being imposed and over the objection of the prosecution, I

am going to waive any fine or costs.”         But the sentencing journal entry stated, “[f]ine

waived over the objection of the state.        The court hereby enters judgment against the

defendant in an amount equal to the costs of the prosecution.”
      {¶5} Crim.R. 36 provides: “After giving any notice it considers appropriate, the

court may at any time correct a clerical error in a judgment, order, or other part of the

record, or correct an error in the record arising from oversight or omission.”          Thus,

pursuant to Crim.R. 36, a trial court may use a nunc pro tunc entry to correct mistakes in

judgments, orders, and other parts of the record so the record speaks the truth. State v.

Spears, 8th Dist. Cuyahoga No. 94089, 2010-Ohio-2229, ¶ 1; State v. Davis, 8th Dist.

Cuyahoga No. 95440, 2011-Ohio-2526, ¶ 15.

      {¶6} Because the journal entry in this case did not reflect what the trial court stated

at the sentencing hearing, on remand, the trial court is to enter a nunc pro tunc order

showing that it waived court costs.

      {¶7} The first assignment of error is sustained.

      {¶8} In the second assignment of error, Hull argues that the trial court improperly

imposed five years of postrelease control on his weapons charge.     The state concedes the

error and we agree.

      {¶9} Hull pleaded guilty to having weapons while under disability, a felony of the

third degree. R.C. 2967.28(C) states:

      Any sentence to a prison term for a felony of the third, fourth, or fifth
      degree * * * shall include a requirement that the offender be subject to a
      period of postrelease control of up to three years after the offender’s release
      from imprisonment, if the parole board, in accordance with division (D) of
      this section, determines that a period of post-release control is necessary for
      that offender.

      {¶10} Thus, pursuant to R.C. 2967.28(C), Hull is subject to up to three years of
postrelease control.1

       {¶11} In State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434, 920 N.E.2d 958,

paragraph two of the syllabus, the Ohio Supreme Court stated that “[f]or criminal

sentences imposed on and after July 11, 2006, in which a trial court failed to properly

impose postrelease control, trial courts shall apply the procedures set forth in R.C.

2929.191.” As it applies to this case, R.C. 2929.191 provides that the trial court may,

after conducting a hearing with notice, correct an original judgment of conviction by

entering a nunc pro tunc entry.

       {¶12} When a trial court errs in imposing a term of postrelease control at

sentencing, “that part of the sentence is void and must be set aside.” State v. Fischer,

128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26. “[O]nly the offending portion

of the sentence is subject to review and correction.” Id. at ¶ 27.

       {¶13} Because the trial court improperly sentenced Hull to five years of

postrelease control, on remand, the trial court is to hold a hearing where the court can

correctly state that Hull is subject to up to a three-year period of postrelease control and

enter a corresponding judgment entry.

       {¶14} The second assignment of error is sustained.

       {¶15} Judgment reversed and case remanded for proceedings consistent with this

opinion.

       1
         Hull is not subject to postrelease control for aggravated murder because that crime is an
unclassified felony for which the postrelease control statute does not apply. State v. Clark, 119 Ohio
St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 36.
       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

MARY J. BOYLE, J., and
ANITA LASTER MAYS, J., CONCUR