State v. Ellis , 2017 Ohio 7606 ( 2017 )

[Cite as State v. Ellis, 2017-Ohio-7606.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 105108 and 105155
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLIAM ELLIS
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-07-498821-A and CR-07-495646-A
BEFORE: Laster Mays, J., Keough, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: September 14, 2017
-i-
ATTORNEY FOR APPELLANT
Russell S. Bensing
600 IMG Building
1360 East Ninth Street
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar
Assistant County Attorney
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant, William Ellis’s (“Ellis”) consolidated appeal
challenges the trial court’s denial of Ellis’s motion to terminate postrelease control in two
separate convictions. The appeal has been placed on the accelerated docket, affording a
concise and expeditious resolution. App.R. 11.1, App.R. 11.1(E), Loc.R. 11.1; State v.
Smith, 8th Dist. Cuyahoga No. 104632, 2016-Ohio-7898, ¶ 1, citing Crawford v. Eastland
Shopping Mall Assn., 11 Ohio App. 3d 158, 463 N.E.2d 655 (10th Dist.1983).
{¶2} The matter was submitted on the briefs, and the state has recently conceded
the error. We reverse the trial court’s determination and remand with instructions to
terminate postrelease control (“PRC”).
{¶3} On December 3, 2007, in State v. Ellis, Cuyahoga C.P.
No. CR-07-495646-A, Ellis was sentenced to five years in prison after a jury conviction
for two counts of gross sexual imposition under R.C. 2907.05(A)(1), one count of assault
pursuant to R.C. 2903.13, one count of kidnapping with a sexual motivation specification
pursuant to R.C. 2905.01(A)(2) and 2941.147, and one count of kidnapping with a sexual
motivation specification pursuant to R.C. 2905.01(A)(4) and 2941.147:
The court considered all required factors of the law. The court finds that
prison is consistent with the purpose of R.C. 2929.11. The court imposes a
prison sentence at the Lorain Correctional Institution of 5 year(s).
[Eighteen] months on each of Counts 2 and 3 [gross sexual imposition], to
run consecutive to each other; 5 years on Counts 6 and 7 [kidnapping with
sexual specification] which merge into felony 1. Counts 2 and 3 to run
concurrent to Counts 6 and 7 for a total of 5 years. ([Five] years
postrelease control is mandatory) postrelease control is part of this prison
sentence for 5 years for the above felony(s) under R.C. 2967.28. As to
Count 5 [assault], defendant is sentenced to county jail for a term of
6-months. Execution of sentence suspended as to Count 5. Defendant
advised of appeal rights. * * * HB 180 hearing. * * *. Defendant is
classified as a sexually oriented offender. See separate journal. * * *
Defendant is a Tier II registrant. See Journal Entry No. 48837609 dated
December 3, 2007.
(Emphasis added.)
{¶4} On February 28, 2008, in State v. Ellis, Cuyahoga C.P. No.
CR-07-498821-A, Ellis was found guilty by jury verdict of felonious assault,
R.C. 2903.11(A)(2), a third-degree felony, and criminal damaging R.C. 2909.06(A)(1), a
second-degree misdemeanor:
The jury returns a verdict of guilty of felonious assault [R.C.] 2903.11
(A)(2) F3 as charged in Count(s) 2 of the indictment. The jury returns a
verdict of guilty of criminal damaging [R.C.] 2909.06 a(1) M1 as charged
in count(s) 4 of the indictment. * * * Court proceeds to sentencing.
Defendant addresses the court, prosecutor addresses the court. As to count
2, the court considered all required factors of the law. The court finds that
prison is consistent with the purpose of R.C. 2929.11. The court imposes a
prison sentence at the Lorain Correctional Institution of 3 year(s).
Sentence to be served consecutively with CR-495646. Postrelease control
is mandatory for a 3-year period. Postrelease control is part of this prison
sentence for 3 years for the above felony(s) under R.C. 2967.28.
Defendant to receive jail time credit for 133 day(s), to date. As to Count 4,
M2, defendant sentenced to 1-month in county jail; credit for time served.
Defendant advised of appeal rights. Defendant indigent, court appoints * *
* appellate counsel. Transcript at state’s expense. Defendant is to pay court
costs. See Journal Entry No. 50251307 dated February 28, 2008.
(Emphasis added.)
{¶5} On May 18, 2015, Ellis was released from prison and placed on PRC. On
July 18, 2016, Ellis filed a motion to terminate PRC for the two cases. The trial court
denied the motions on October 18, 2016:
In response to defendant’s motion for order of release and termination of
postrelease control supervision, motion is denied. It is denied on authority
of State Ex rel. Rudert v. Collier, 146 Ohio St. 3d 441, 57 N.E.3d 1152
(2016). See Journal Entry No. 96102003.
{¶6} Ellis’s single assignment of error asserts that the trial court incorrectly
denied the motion to terminate the PRC. We agree.
{¶7} At the time of sentencing, the trial court is required to provide the
defendant with “statutorily compliant” notice of PRC details and the consequences of
violating, and to include the notification in the sentencing entry. State v. Loper, 8th Dist.
Cuyahoga No. 104828, 2017-Ohio-542, ¶ 9, quoting State v. Qualls, 131 Ohio St. 3d 499,
2012-Ohio-1111, 967 N.E.2d 718, ¶ 18. A trial court’s failure to properly impose PRC at
the time of sentencing “is void and must be set aside.” Loper at ¶ 10, quoting State v.
Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26.
{¶8} Where a defendant has completed the sentence for which PRC is being
challenged, the trial court no longer has jurisdiction to rectify the situation. Loper at ¶
11, citing State v. Holdcroft, 137 Ohio St. 3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 5;
State v. Brown, 8th Dist. Cuyahoga No. 95086, 2011-Ohio-345, ¶ 11. “Where the trial
court fails to properly impose postrelease control and the defendant has completed his
sentence, ‘the term of postrelease control is void and should be terminated.’” Loper at ¶
11, quoting State v. Smith, 8th Dist. Cuyahoga No. 104632, 2016-Ohio-7898, ¶ 7.
{¶9} Our holding in State v. Ramos, 8th Dist. Cuyahoga No. 105110,
2017-Ohio-2763, is directly on point. Ramos entered a guilty plea in 2004 to
first-degree felony drug trafficking under R.C. 2925.03. He was sentenced to nine years
of incarceration and “‘[p]ost release control of 5 years as part of this prison sentence for
the above felony(s) under R.C. 2967.28.”’ Id. at ¶ 2.
{¶10} Ramos completed his sentence and was released in 2012. Ramos’s
postrelease control was transferred upon his relocation to Texas where he was arrested in
2016 for failing to advise authorities of an address change. Ramos was returned to Ohio,
served 90 days in jail, and remained under postrelease control at the time of filing a
motion to terminate postrelease control on September 14, 2016. The trial court rejected
Ramos’s argument that “because the sentencing journal failed to reflect the consequences
of violating postrelease control, the trial court improperly imposed the term of postrelease
control.” Id. at ¶ 8.
{¶11} We determined:
This court has repeatedly followed [State v.] Mace[, 8th Dist. Cuyahoga No.
100779, 2014-Ohio-5036,] finding that when a trial court failed to set forth
the consequences for violating postrelease control in a sentencing entry and
the defendant completed his sentence, the term of postrelease control was
void and should be terminated. See State v. Smith, 8th Dist. Cuyahoga No.
104632, 2016-Ohio-7898; State v. Bryant, 8th Dist. Cuyahoga No. 102650,
2015-Ohio-3678, discretionary appeal not allowed, State v. Bryant, 144
Ohio St. 3d 1505, 2016-Ohio-652, 45 N.E.3d 1050; [State v.] Cooper, 8th
Dist. Cuyahoga No. 103066, 2015-Ohio-4505; State v. Martin, 8th Dist.
Cuyahoga No. 102336, 2015-Ohio-2865; State v. Love, 8th Dist. Cuyahoga
No. 102058, 2015-Ohio-1461.
This court also has held that merely referring to the statute in the sentencing
entry is insufficient to advise the defendant of the consequences of violating
postrelease control. Martin at ¶ 10, citing State v. Mills, 8th Dist. Cuyahoga
No. 100417, 2014-Ohio-2188. Moreover, in State v. Johnson, 8th Dist.
Cuyahoga No. 103225, 2016-Ohio-404, this court held that the trial court
maintained jurisdiction to terminate the void postrelease control sanction.
Id. at ¶ 13-14.
{¶12} The Ramos entry provided for “‘[p]ost release control of 5 years as part
of this prison sentence for the above felony(s) under R.C. 2967.28.’” Id. at ¶ 2. The
entries in the current cases provide: (1) in CR-07-495646-A, “[p]ostrelease control is
mandatory for a 3 year period. Postrelease control is part of this prison sentence for 3
years for the above felony(s) under R.C. 2967.28”; and in CR-07-498821, “(5 years
postrelease control is mandatory) postrelease control is part of this prison sentence for 5
years for the above felony(s) under R.C. 2967.28.” The entries make no reference to the
consequences for violating.
{¶13} In the instant case, as in Ramos:
[T]he trial court did not set forth the consequences for violating postrelease
control in the sentencing entry. Rather, the trial court simply provided for
“[p]ostrelease control of 5 years as part of” Ramos’s prison sentence.
Ramos completed his prison sentence. Pursuant to Mace and the other
precedents set forth in our district, the trial court erred by not terminating
Ramos’s postrelease control because the sentencing entry is void with
respect to postrelease control.
Id. at ¶ 15.
{¶14} Ramos also addresses the state’s argument that the failure to submit a
transcript requires that this court assume the regularity of the proceedings:
We also find that Ramos’s failure to submit the transcript from his
sentencing hearing does not affect the outcome of our decision in this case.
In State v. Elliott, 8th Dist. Cuyahoga No. 100404, 2014-Ohio-2062, this
court had the opportunity to review the sentencing transcript and held that
even though the trial court orally notified the defendant of the consequences
of violating postrelease control at his sentencing hearing, the failure to
subsequently include the notification in the sentencing journal entry
rendered the imposition of the defendant’s postrelease control void. Id. at ¶
12. Thus, pursuant to this court’s decision in Elliott, even if the trial court
advised Ramos of the consequences of violating postrelease control at his
sentencing hearing, the court was not relieved of its obligation to include
the notification in its sentencing entry. See also Martin, 8th Dist. Cuyahoga
No. 102336, 2015-Ohio-2865.
Id. at ¶ 16.
{¶15} The Ohio Supreme Court’s recent opinion in State v. Grimes, Slip Opinion
No. 2017-Ohio-2927 supersedes our analysis as to the sentencing hearing notification and
journalization of postrelease control. It provides that
to validly impose postrelease control when the court orally provides all the
required advisements at the sentencing hearing, the sentencing entry must
contain the following information: (1) whether postrelease control is
discretionary or mandatory, (2) the duration of the postrelease control
period, and (3) a statement to the effect that the Adult Parole Authority
(“APA”) will administer the postrelease control pursuant to R.C. 2967.28
and that any violation by the offender of the conditions of postrelease
control will subject the offender to the consequences set forth in that statute.
Id. at ¶ 1.
{¶16} Grimes also cautioned
that this appeal presents a case in which it is undisputed that the trial court
provided all the required advisements regarding postrelease control to
Grimes at the sentencing hearing. Grimes did not introduce a transcript of
the hearing into the record, so we must assume the regularity of the
sentencing hearing. Natl. City Bank v. Beyer, 89 Ohio St. 3d 152, 160, 729
N.E.2d 711 (2000). Our holding is limited to those cases in which the trial
court makes the proper advisements to the offender at the sentencing
hearing. We reach no conclusion as to the requirements for sentencing
entries in cases in which notice at the sentencing hearing was deficient.
Id. at ¶ 20.
{¶17} In light of Grimes, this court may no longer rely on State v. Elliott, 8th Dist.
Cuyahoga No. 100404, 2014-Ohio-2062, cited in Ramos, supra, regarding the
journalization of postrelease control. As a result, if a defendant fails to include a
transcript of the sentencing hearing when challenging the imposition of postrelease
control following his release from prison, we must (1) presume regularity, and (2)
presume that all required notifications were orally provided. In such a case, inclusion of
the information quoted above (Grimes at ¶ 1) is required in the sentencing journal entry.
{¶18} We recognize, and the state concedes, that even presuming that the trial
court orally provided the requisite notifications, none of the Grimes advisements were
included in Ellis’s sentencing entry. Therefore, Ellis’s sole assignment of error is
sustained.
{¶19} Judgment is reversed, and the matter is remanded to the trial court with
instructions to release Ellis from further postrelease control supervision in the
consolidated cases. We caution Ellis that our findings here do not impact Ellis’s
reporting requirements as a sexually oriented offender.
It is ordered that appellant recover from appellee the 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. Any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
_______________________________________
ANITA LASTER MAYS, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
SEAN C. GALLAGHER, J., CONCUR