State v. Leugers , 2018 Ohio 2808 ( 2018 )


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  • [Cite as State v. Leugers, 
    2018-Ohio-2808
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    ALLEN COUNTY
    STATE OF OHIO,
    CASE NO. 1-18-10
    PLAINTIFF-APPELLEE,
    v.
    VERNON C. LEUGERS, JR.,                                   OPINION
    DEFENDANT-APPELLANT.
    Appeal from Allen County Common Pleas Court
    Trial Court No. CR20040017
    Judgment Reversed and Cause Remanded
    Date of Decision: July 16, 2018
    APPEARANCES:
    Patrick T. Clark for Appellant
    Jana E. Emerick for Appellee
    Case No. 1-18-10
    WILLAMOWSKI, P.J.
    {¶1} Defendant-appellant Vernon C. Leugers, Jr. (“Leugers”) brings this
    appeal from the judgment of the Court of Common Pleas of Allen County overruling
    Leugers’ motion to vacate his post-release control. For the reasons set forth below,
    the judgment is reversed.
    {¶2} On August 11, 2004, Leugers entered into a negotiated plea agreement
    in which he pled guilty to three counts of gross sexual imposition, one count of
    disseminating matter harmful to a juvenile and one count of attempted pandering of
    sexually oriented matter involving a minor. Doc. 69. In exchange, the prosecution
    dismissed all other pending charges. 
    Id.
     In the paperwork for the plea agreement,
    Leugers was informed that he would be subject to a mandatory term of five years of
    post-release control. 
    Id.
     At the change of plea hearing, Leugers was advised about
    post-release control. Tr. 8-9. The trial court specifically told him that “if you get a
    prison sentence you will be supervised after prison for up to five years under post-
    release control.” Tr. 8. The sentencing hearing was scheduled for a later date. Tr.
    22.
    {¶3} A sentencing hearing was held on October 7, 2004. Tr. 25. Leugers
    was sentenced to a three-year prison term on each count with the sentences ordered
    to be served consecutively for an aggregate prison term of fifteen years. Tr. 51. No
    discussion of post-release control occurred during the sentencing hearing. The
    sentencing entry, however, indicated that Leugers was “subject to such further
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    Case No. 1-18-10
    period of supervision under POST RELEASE CONTROL as the parole board may
    determine pursuant to law (up to 5 years).” Doc. 77 at 4.
    {¶4} On January 8, 2018, Leugers filed a motion to vacate the post-release
    control portion of his sentence. Doc. 136. The motion argued that the post-release
    control sanction was void because it was not imposed at the sentencing hearing and
    was not properly imposed in the journal entry. 
    Id.
     Additionally, Leugers argued
    that since he had already completed his prison term, the post-release control sanction
    could not be made valid. 
    Id.
     The State did not file a response to the motion. Doc.
    137. On January 24, 2018, the trial court overruled the motion. 
    Id.
     Leugers appeals
    from this judgment and raises the following assignment of error on appeal.
    The trial court erred as a matter of law when it denied [Leuger’s]
    motion to vacate his improperly imposed post-release control.
    {¶5} The sole assignment of error claims that the trial court should have
    granted the motion pursuant to the holdings in State v. Grimes, 
    151 Ohio St.3d 19
    ,
    
    2017-Ohio-2927
    , 
    85 N.E.2d 700
     and State v. Davenport, 3d Dist. Defiance Nos. 4-
    12-05, 4-12-06, 
    2012-Ohio-4013
    . Leugers argues that since he was not properly
    sentenced to post-release control, it must be vacated. The State concedes that
    Leugers was improperly sentenced to post-release control and that it must be
    vacated.
    -3-
    Case No. 1-18-10
    {¶6} In Grimes, the Supreme Court of Ohio considered what information
    must be included in a sentencing entry to validly impose a post-release control
    sanction. The Court held as follows.
    [T]o validly impose [post-release] control when the court orally
    provides all the required advisements at the sentencing hearing,
    the sentencing entry must contain the following information: (1)
    whether [post-release] control is discretionary or mandatory, (2)
    the duration of the [post-release] control period, and (3) a
    statement to the effect that the Adult Parole Authority (“APA”)
    will administer the [post-release] control pursuant to R.C. 2967.28
    and that any violation by the offender of the conditions of [post-
    release] control will subject the offender to the consequences set
    forth in that statute.
    Grimes at ¶ 1. Grimes also provided that a trial court “has a statutory duty to provide
    notice of [post-release] control at the sentencing hearing” and that “any sentence
    imposed without such notification is contrary to law.” 
    Id.
     at ¶ 8 quoting State v.
    Jordan, 
    104 Ohio St.3d 21
    , 
    2004-Ohio-6085
    , 
    817 N.E.2d 864
    , ¶ 23. “[W]hen a
    judge fails to impose statutorily mandated [post-release] control as part of a
    defendant's sentence, 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. Because the
    portion of the sentence related to post-release control is void, principles of res
    judicata do not apply and the matter may be reviewed at any time, either on direct
    appeal or by collateral attack. 
    Id.
     at ¶ 30 and State v. Williams, 
    148 Ohio St.3d 403
    ,
    
    2016-Ohio-7658
    , 
    71 N.E.2d 234
    , ¶ 22.
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    Case No. 1-18-10
    {¶7} This court has held likewise in Davenport. In Davenport, the defendant
    challenged the revocation of his community control sanctions. Davenport, 
    supra at ¶ 1
    . This court overruled the two assignments of error regarding the revocation, but
    sua sponte vacated the imposition of post-release control. Id. at ¶ 18. This was
    based upon the fact that the defendant was advised that he “may” be subject “up to
    three years” of post-release control. Id. at ¶ 20. In the judgment entry, the trial court
    again advised the defendant that he was subject to a period of post-release control
    “up to” three years. Id. This court determined that use of the terms “up to” only
    notifies a defendant of a discretionary term, not a mandatory term. Id. “By using
    the terms ‘up to’ and ‘may,’ the trial court did not provide [the defendant] notice
    that his post-release control obligation * * * was mandatory.” Id. Based upon that
    error, the imposition of post-release control had to be vacated.
    {¶8} In this case, the record shows that no discussion of post-release control
    occurred at the sentencing hearing, though it was discussed at the change of plea
    hearing. Although the plea agreement itself stated that post-release control was a
    mandatory term of five years, that is not what the trial court advised Leugers at the
    change of plea hearing. The trial court specifically told him that post-release control
    was “up to” five years, implying that the term was discretionary. Additionally, no
    advisement was made at the sentencing hearing. Thus, the only advisement by the
    trial court as to post-release control was not proper. In the journal entry, the trial
    court indicated that Leugers was subject to a post-release control term of “up to”
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    Case No. 1-18-10
    five years. This language does not provide the proper notice that the post-release
    control is mandatory. Thus, pursuant to the holdings in Grimes and Davenport, the
    portion of the sentence imposing post-release control was void and must be vacated.
    {¶9} The remedy for the failure to properly impose post-release control is
    generally to remand the matter for a new sentencing hearing on the limited issue of
    properly imposing post-release control. See Davenport. However, in this case,
    Leugers alleges that he has completed his sentence. The Supreme Court of Ohio
    “has consistently and repeatedly held that a trial court loses jurisdiction to
    resentence a defendant for the purpose of imposing [post-release] control once the
    defendant has served his entire sentence of incarceration”. State v. Holdcroft, 
    137 Ohio St.3d 526
    , 
    2013-Ohio-5014
    , 
    1 N.E.3d 382
    , ¶ 5. “[O]nce an offender has
    completed the prison term imposed in his original sentence, he cannot be subjected
    to another sentencing to correct the trial court's flawed imposition of [post-release]
    control.” State v. Bloomer, 
    122 Ohio St.3d 200
    , 
    2009-Ohio-2462
    , 
    909 N.E.2d 1254
    ,
    ¶ 70. If Leugers has completed his prison term of the original sentence, the trial
    court has lost the jurisdiction to correct the flawed imposition of post-release
    control. The trial court therefore should have determined whether Leugers had
    completed his prison term. If Leugers had not completed his prison term, then the
    trial court should have conducted a new sentencing hearing on the limited issue of
    properly imposing post-release control. If Leugers had completed his prison term,
    the trial court should have granted Leugers’ motion to vacate the post-release
    -6-
    Case No. 1-18-10
    control portion of his sentence. Based upon the current status of the law in Ohio,
    the assignment of error is sustained.
    {¶10} Having found error prejudicial to the Appellant, the judgment of the
    Court of Common Pleas of Allen County is reversed and the matter is remanded for
    further proceedings in accord with this opinion.
    Judgment Reversed
    And Cause Remanded
    ZIMMERMAN and SHAW, J.J., concur.
    /hls
    -7-
    

Document Info

Docket Number: 1-18-10

Citation Numbers: 2018 Ohio 2808

Judges: Willamowski

Filed Date: 7/16/2018

Precedential Status: Precedential

Modified Date: 7/16/2018