State v. Bevins ( 2013 )

[Cite as State v. Bevins, 2013-Ohio-156.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120345
TRIAL NO. B-0009380
Plaintiff-Appellee, :
vs. : O P I N I O N.
ANDREW BEVINS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed as Modified and Cause Remanded
Date of Judgment Entry on Appeal: January 23, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Andrew Bevins, pro se.
Please note: we have removed this case from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Defendant-appellant Andrew Bevins appeals from the Hamilton
County Common Pleas Court’s judgment dismissing his “Motion to Correct Void
Sentence” and “Motion to Correct Journal Entries.” We affirm the court’s judgment,
but we remand this case for the proper imposition of postrelease control.
{¶2} In 2003, Bevins was convicted upon a jury verdict finding him guilty of
escape. He unsuccessfully challenged his conviction in a direct appeal to this court,
State v. Bevins, 1st Dist. No. C-040052 (Feb. 23, 2005), and, collaterally, in a series
of postconviction motions. On appeal from the dismissal of his 2010 “Motion to
Correct Void Sentence” and his 2011 “Motion to Correct Journal Entries,” he
presents two assignments of error.
{¶3} Court properly disposed of “Motion to Correct Journal
Entries.” We address first, and overrule, Bevins’s second assignment of error, in
which he contends that the common pleas court erred in ruling upon his “Motion to
Correct Journal Entries.” The motion, he insists, had not been before the court. But
the record shows that the motion was filed with the court on December 14, 2011;
therefore, the court cannot be said to have erred in ruling upon it.
{¶4} “Motion to Correct Void Sentence” was reviewable and
subject to dismissal under R.C. 2953.21 et seq. Bevins’s first assignment
of error essentially restates the claim advanced in his “Motion to Correct Void
Sentence” and may thus fairly be read to challenge the dismissal of that motion. We
hold that the motion was properly dismissed.
{¶5} In his motion, Bevins sought correction of his sentence on the ground
that it is void to the extent that the trial court had failed to adequately notify him
concerning postrelease control. Bevins did not specify in his motion the statute or
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OHIO FIRST DISTRICT COURT OF APPEALS
rule under which he sought relief. R.C. 2953.21 et seq., governing the proceedings
upon a postconviction petition, provide “the exclusive remedy by which a person may
bring a collateral challenge to the validity of a conviction or sentence in a criminal
case.” R.C. 2953.21(J). Therefore, the common pleas court should have reviewed
Bevins’s motion as a postconviction petition under the standards provided by R.C.
2953.21 et seq. See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d
431, ¶ 12.
{¶6} But Bevins filed his motion well after the expiration of the time
prescribed by R.C. 2953.21(A)(2). And the record does not demonstrate either that
he was unavoidably prevented from discovering the facts underlying his claim, or
that his claim was predicated upon a new or retrospectively applicable federal or
state right recognized by the United States Supreme Court since the time for filing a
postconviction petition had expired. Because Bevins satisfied neither the time
strictures of R.C. 2953.21(A)(2) nor the jurisdictional requirements of R.C.
2953.23(A), the postconviction statutes did not confer upon the common pleas court
jurisdiction to entertain Bevins’s postconviction claim on its merits, and the motion
was subject to dismissal. We, therefore, overrule the first assignment of error.
{¶7} Court had jurisdiction to correct sentences to the extent
postrelease-control notification was inadequate. Nevertheless, a trial
court retains jurisdiction to correct a void judgment. State ex rel. Cruzado v.
Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. And Bevins’s
sentence was void to the extent that he had not been adequately notified concerning
postrelease control.
{¶8} A felony prison sentence must include a term of postrelease control.
R.C. 2967.28 and 2929.14(F). And the sentencing court must notify the offender at
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OHIO FIRST DISTRICT COURT OF APPEALS
the sentencing hearing concerning postrelease control and must incorporate
postrelease-control notification in the judgment of conviction. R.C. 2929.19(B)(3)(c)
through (B)(3)(e); State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d
864, paragraph one of the syllabus; see also Woods v. Telb, 89 Ohio St.3d 504, 513,
733 N.E.2d 1103 (2000) (holding that incorporation of postrelease-control
notification in the judgment of conviction empowers the adult parole authority to
impose postrelease control). Specifically, the court must notify the offender, with
respect to each offense, of the length and mandatory or discretionary nature of
postrelease control, of the consequences of violating postrelease control, and of the
length of confinement that could be imposed for a postrelease-control violation. See
R.C. 2929.19(B)(3)(c) through (B)(3)(e) and 2967.28(B) and (C); State v. Ketterer,
126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 77-79; State v. Bloomer, 122
Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 69.
{¶9} In sentencing Bevins for the second-degree felony of escape, the court
was required to notify Bevins that upon his release from prison, he would be subject
to a mandatory three-year period of postrelease control. See R.C. 2929.19(B)(3)(c)
and 2967.28(B)(2). And the court was required to notify Bevins of the consequences
of violating postrelease control and of the length of confinement that could be
imposed for a postrelease-control violation. See R.C. 2929.19(B)(3)(e).
{¶10} At Bevins’s sentencing hearing, the trial court advised him as follows:
Now, I am sure you are aware, having been up before that the parole
board that once you served your time in this case will probably place
you on Post-Release Control again; and if you violate conditions of that
Post-Release Control as you know, you can be sent back to the
penitentiary on this charge. It could be for half of the time I originally
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OHIO FIRST DISTRICT COURT OF APPEALS
imposed. Also, you should be aware if you are out on Post-Release
Control and you commit a new felony that you could receive an
additional year in the penitentiary for committing that new felony
while on Post-Release Control; and that is in addition to any time you
get on [the] new felony * * *.
Thus, the postrelease-control notification provided at sentencing did not specify the
duration of his postrelease-control supervision, did not state the mandatory nature
of the supervision, and did not specify the length of confinement that could be
imposed for a postrelease-control violation.
{¶11} The notification incorporated in the judgment of conviction was even
less edifying, stating simply that “[a]s part of the sentence in this case, the defendant
is subject to the post release [sic] control supervision of R.C. 2967.28.” It did not
specify the duration or the mandatory nature of the postrelease-control supervision,
the consequences of violating postrelease control, or the length of confinement that
could be imposed for a postrelease-control violation.
{¶12} The state moved to dismiss Bevins’s “Motion to Correct Void Sentence”
on the ground that the postrelease-control notification provided at sentencing and in
the judgment of conviction was “sufficient[],” and that Bevins should have raised his
challenge to the adequacy of the notification in his direct appeal. In support of its
motion, the state cited the Ohio Supreme Court’s decisions in Watkins v. Collins, 111
Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, and State ex rel. Pruitt v.
Cuyahoga Cty. Court of Common Pleas, 125 Ohio St.3d 402, 2010-Ohio-1808, 928
N.E.2d 722. The common pleas court, without elaboration, granted the state’s
motion.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} But Watkins and Pruitt do not, as the state would have them, establish
a rule of substantial compliance with the statutory mandates concerning postrelease
control based on the mere mention of postrelease control at sentencing or in the
judgment of conviction. Nor do those cases support a rule of waiver or forfeiture
when the offender fails to challenge his postrelease-control notification on direct
appeal. State v. Smith, 1st Dist. No. C-120163, 2012-Ohio-5965.
{¶14} The postrelease-control statutes and the supreme court’s postrelease-
control decisions require that, with respect to each offense, a sentencing court notify
the offender, both at the sentencing hearing and in the judgment of conviction, of the
length and mandatory or discretionary nature of postrelease control, of the
consequences of violating postrelease control, and of the length of confinement that
could be imposed for a postrelease-control violation. See Ketterer, 126 Ohio St.3d
448, 2010-Ohio-3831, 935 N.E.2d 9, at ¶ 77-79; Bloomer, 122 Ohio St.3d 200, 2009-
Ohio-2462, 909 N.E.2d 1254, at ¶ 69. To the extent that postrelease control is not
properly imposed, the sentence is “void,” and “the offending portion of the sentence
is subject to review and correction,” “at any time, on direct appeal or by collateral
attack.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,
paragraph one of the syllabus and ¶ 27. Accord Smith at ¶ 19; State v. Tensley, 1st
Dist. Nos. C-110452 and C-110453, 2012-Ohio-4265, ¶ 11-12; State v. Ward, 1st Dist.
No. C-110158, 2011-Ohio-6382, ¶ 4-6; State v. Copeland, 1st Dist. No. C-110120,
2011-Ohio-6034, ¶ 4-6; State v. Truitt, 1st Dist. No. C-050188, 2011-Ohio-1885, ¶ 19-
20; State v. Thomas, 1st Dist. Nos. C-100411 and C-100412, 2011-Ohio-1331, ¶ 7-9.
{¶15} Thus, Bevins’s sentence is void to the extent it was not imposed in
conformity with the statutory mandates concerning postrelease control. His 2010
“Motion to Correct Void Sentence” brought the matter to the common pleas court’s
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OHIO FIRST DISTRICT COURT OF APPEALS
attention. Consequently, the common pleas court had jurisdiction to review and
correct the offending portion of Bevins’s sentence.
{¶16} We affirm, but remand for resentencing. The common pleas
court properly ruled upon Bevins’s “Motion to Correct Journal Entries” because the
motion had been filed with the court. And his “Motion to Correct Void Sentence”
was subject to dismissal because the postconviction statutes did not confer on the
common pleas court jurisdiction to entertain the motion on its merits. Therefore, we
affirm the court’s judgment dismissing both motions.
{¶17} But Bevins’s sentence is void to the extent that he was not adequately
notified concerning postrelease control. We, therefore, remand this case for
correction of the offending portion of his sentence in accordance with the law and
this opinion.
Judgment accordingly.
SUNDERMANN, P.J., CUNNINGHAM and FISCHER, JJ.
J. HOWARD SUNDERMANN, retired, from the First Appellate District, sitting by
assignment.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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