Paul Pfeifer

In March 2010, Shawn Ware pleaded guilty to two counts of trafficking in crack cocaine. One count was a second-degree felony because of the amount of crack involved; the other was a fourth-degree felony, because it occurred in the vicinity of a juvenile. In exchange for the guilty plea, the state of Ohio dismissed the remaining five felony charges.

Ware’s second-degree felony carried a mandatory prison term – a fact Ware acknowledged when he entered his guilty plea. The law required the court to impose a mandatory term of between two to eight years.

In his written guilty plea, Ware acknowledged that his second-degree felony carried a mandatory prison term and that the term the judge imposes “will be the term served.”

At the sentencing hearing, the trial court reminded Ware that his second-degree felony carried “mandatory time.” It then imposed a four-year term for that offense, to run concurrently with an 18-month term for Ware’s fourth-degree felony, for a total of four years.

After announcing its sentence, the trial court told Ware that, if he “changed his life around while in prison,” his attorney “may petition…for a judicial release when it’s appropriate.” The trial court’s sentencing entry didn’t refer to the four-year term as mandatory.

Beginning in November 2010, Ware began filing motions for judicial release. His first motion was denied. In his second motion, Ware argued that he was eligible for early release because the original sentencing entry did not indicate that his term was mandatory.

Rather than rule on the motion, the trial court issued a nunc pro tunc entry, which referred to Ware’s four-year prison term as “mandatory.” “Nunc pro tunc” is a Latin phrase meaning “now for then.” The phrase is applied to acts that are allowed to be done after the time when they have actually been done, with a retroactive effect – that is, with the same effect as if it had been done in a regular manner. After the court issued its nunc pro tunc entry, Ware withdrew his motion.

In 2012, Ware filed a third motion, arguing that the original sentencing entry imposed only a “minimum mandatory sentence of two years.” The state objected to Ware’s early release, but the trial court granted the motion and released Ware under intensive supervision for one year followed by general supervision for 48 months. The trial court explained that it had not intended to make all four years of Ware’s sentence mandatory.

The state appealed Ware’s release, arguing that he was ineligible for judicial release because his entire four-year prison term was mandatory. The court of appeals agreed that Ware’s four-year sentence was mandatory, but stated that the trial court had intended to impose a “hybrid” prison term that was mandatory for only two of the four years.

The court of appeals sent the case – with instructions – back to the trial court to issue a nunc pro tunc entry that “correctly states the nature of the sentence the court intended to impose for the second-degree trafficking offense – that is, a total state prison term of four years, only two of which are mandatory.”

After that, the case came before us – the Ohio Supreme Court – for a final review.

Ohio law provides that a prisoner cannot apply for judicial release until a period of time “after the expiration of all mandatory prison terms” in the state prison sentence. The question, then, is whether Ware could ever apply for judicial release. And the answer is – he could not.

All four years of his prison sentence were mandatory, and the trial court could not change this result by later expressing its intent to impose a different “hybrid” sentence. Judicial release is a privilege, not an entitlement. Courts have no inherent power to suspend execution of a sentence, and they must strictly construe laws allowing such relief.

Ware’s second-degree felony was ineligible for judicial release from the very beginning. When he pleaded guilty, the punishment was clear: “the court shall impose as a mandatory prison term one of the prison terms prescribed” for a second-degree felony.

Under the applicable law, prison was mandatory – and judicial release therefore impossible – for the length of whichever “one of the prison terms” the trial court imposed, no matter the length of the term.

The trial court did not change this result at sentencing. It imposed a four-year term, and that entire term was mandatory by operation of law. Even if the court wanted to grant judicial release in the future, the law explicitly prohibited it from doing so.

The court of appeals agreed that Ware’s “entire four-year sentence was mandatory,” and its analysis should have ended there. But then the court of appeals sent the case back to the trial court to issue a nunc pro tunc entry imposing the prison sentence that it had “intended” – a “hybrid” sentence in which only two years were mandatory.

The court of appeals shouldn’t have focused on the sentence the trial court “intended,” but rather, the one it actually imposed. Only the latter is relevant in a judicial-release analysis. The trial court never imposed a hybrid sentence, and didn’t announce an intent to do so until years after it sentenced Ware.

That’s inappropriate for a nunc pro tunc entry, which should only reflect what a court actually intended, not what it might have decided or what it intended to decide. And a hybrid sentence isn’t legally possible. No sentencing law allows a court to divide a singular “mandatory prison term” into a hybrid of mandatory and discretionary sub-terms.

It’s also irrelevant that the original sentencing entry did not refer to the four-year term as “mandatory.” The trial court used the term “mandatory” in its subsequent nunc pro tunc entry, and even if it had not, Ware’s prison term still would have been mandatory.

Ultimately, Ware did not qualify for judicial release. Therefore – by a seven-to-zero vote – we reversed the judgment of the court of appeals.