State v. Lopez , 2013 Ohio 4141 ( 2013 )

[Cite as State v. Lopez, 2013-Ohio-4141.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-120436
C-120555
Plaintiff-Appellee, : TRIAL NO. B-0402530-B
vs. :
RONNIE LOPEZ, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed as Modified and Cause Remanded in C-
120436;
Appeal Dismissed in C-120555
Date of Judgment Entry on Appeal: September 25, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christine Y. Jones, for Defendant-Appellant.
Please note: we have removed this case from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Defendant-appellant Ronnie Lopez has taken these appeals from the
Hamilton County Common Pleas Court’s judgments overruling his “Motion to
Terminate Post Release [sic] Control.” We dismiss as superfluous the case numbered
C-120555. In the case numbered C-120436, we affirm the judgment as modified to
reflect the dismissal of the motion, because the court lacked jurisdiction under the
postconviction statutes to entertain the motion. But we remand this case with
instructions to set aside Lopez’s sentences to the extent that they are void for
inadequate postrelease-control notification and to note on the record that, because
he has been released from prison, his sentences may not now be corrected, nor may
he be supervised under, or sanctioned for a violation of, postrelease control.
{¶2} In 2005, Lopez was convicted upon no-contest pleas to drug
possession and drug trafficking and was sentenced to concurrent eight-year prison
terms. He unsuccessfully challenged his convictions in his direct appeal to this court,
see State v. Lopez, 166 Ohio App.3d 337, 2006-Ohio-2091, 850 N.E.2d 781 (1st
Dist.), appeal not allowed, 110 Ohio St.3d 1467, 2006-Ohio-4288, 852 N.E.2d 1215,
and, collaterally, in a postconviction petition filed with the common pleas court.
State v. Lopez, 1st Dist. Hamilton No. C-060608 (Aug. 17, 2006), appeal not
allowed, 112 Ohio St.3d 1408, 2006-Ohio-6447, 858 N.E.2d 819; State v. Lopez, 1st
Dist. Hamilton No. C-060807 (Oct. 18, 2006).
{¶3} In April 2012, Lopez filed with the common pleas court a motion
seeking “an order terminating post release [sic] control imposed upon [him] upon
his release from the Ohio Department of Rehabilitation and Correction on March 7,
2012.” He asserted that his sentences were void because he had not been adequately
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OHIO FIRST DISTRICT COURT OF APPEALS
notified concerning postrelease control, and that, as a consequence, following his
release from prison, his sentences were not subject to correction, and he was not
subject to postrelease-control supervision. The common pleas court overruled the
motion in its June 2012 “Opinion Denying Motion to Terminate Post-Release [sic]
Control * * *” and in its July 2012 “Entry Denying Motion to Terminate Post-Release
[sic] Control * * *.” These appeals followed.
{¶4} Appeal No. C-120555 is dismissed. We note preliminarily that
the common pleas court’s June 2012 “Opinion,” appealed in the case numbered C-
120436, and its July 2012 “Entry,” appealed in the case numbered C-120555, were
identical in substance and effect. Because the June 2012 “Opinion” was a final
appealable order, see R.C. 2505.02, the July 2012 “Entry,” along with the appeal
from that entry, was superfluous. We, therefore, dismiss the case numbered C-
120555.
{¶5} The motion was subject to dismissal under the
postconviction statutes. On appeal, Lopez advances a single assignment of
error challenging the overruling of his motion. We overrule the assignment of error
upon our determination that the motion was subject to dismissal under the
postconviction statutes.
{¶6} Lopez did not specify in his motion the statute or rule under which he
sought postconviction 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 motion was reviewable under the standards provided
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OHIO FIRST DISTRICT COURT OF APPEALS
by the postconviction statutes. See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-
545, 882 N.E.2d 431, ¶ 12.
{¶7} But Lopez filed his motion well after the expiration of the time
prescribed by R.C. 2953.21(A)(2). And R.C. 2953.23 closely circumscribes the
jurisdiction of a common pleas court to entertain a late postconviction claim: the
petitioner must show either that he was unavoidably prevented from discovering the
facts upon which his postconviction claim depends, or that his claim is predicated
upon a new or retrospectively applicable right recognized by the United States
Supreme Court since the time for filing a postconviction petition expired or since he
filed his last postconviction petition; and he must show “by clear and convincing
evidence that, but for constitutional error at trial, no reasonable factfinder would
have found [him] guilty of the offense of which [he] was convicted.”
{¶8} The record before us does not, as it could not, demonstrate that, but
for the claimed sentencing error, no reasonable factfinder would have found Lopez
guilty of the offenses of which he was convicted. Thus, because Lopez satisfied
neither the time restrictions of R.C. 2953.21(A)(2) nor the jurisdictional
requirements of R.C. 2953.23, the postconviction statutes did not confer upon the
common pleas court jurisdiction to entertain his motion. See R.C. 2953.23(A).
{¶9} The sentences are void in part, but not subject to
correction, for inadequate postrelease-control notification.
Nevertheless, a court has jurisdiction to review and correct a void judgment. See
State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d
263, ¶ 18-19. And Lopez’s sentences are void to the extent that he was not adequately
notified concerning postrelease control.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} The postrelease-control statutes in effect in 2005, when Lopez was
sentenced, required 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 former R.C. 2929.14(F),
2929.19(B)(3)(c) through (e), and 2967.28(B) and (C) (superseded in 2011 by R.C.
2929.14[D], 2929.19[B][2][c] through [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; State v.
Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the
syllabus. Accord State v. Smith, 1st Dist. Hamilton No. C-120163, 2012-Ohio-5965, ¶
10-11.
{¶11} In sentencing Lopez for second-degree-felony drug possession and
second-degree-felony drug trafficking, the trial court was required to notify him that
upon his release, he would be subject to a mandatory three-year period of postrelease
control. See former R.C. 2929.19(B)(3)(c) and 2967.28(B)(2) (superseded by R.C.
2929.19[B][2][c] and 2967.28[B]). And the court was required to notify him of the
consequences of violating postrelease control and of the length of confinement that
could be imposed for a violation. See former R.C. 2929.19(B)(3)(e) (superseded by
R.C. 2929.19[B][2][e]).
{¶12} At Lopez’s sentencing hearing, the trial court advised him concerning
the consequences of, and the length of confinement that could be imposed for, a
postrelease-control violation. But with respect to the length and mandatory nature
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OHIO FIRST DISTRICT COURT OF APPEALS
of his postrelease-control supervision, the court misinformed him that “upon [his]
release, [he] could be placed upon at least three years of post-release control [sic] by
the parole board.”
{¶13} Nor did the notification incorporated in the judgment of conviction
comport with the statutory requirements. The notification simply stated 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 his postrelease-control supervision or the consequences of, or the length of
confinement that could be imposed for, a postrelease-control violation. See Smith,
1st Dist. Hamilton No. C-120163, 2012-Ohio-5965, at ¶ 13-20 (noting that the Ohio
Supreme Court has not adopted a rule of substantial compliance such that the
statutory mandate is satisfied by merely referring to postrelease control or the
postrelease-control statute either at sentencing or in the judgment of conviction).
{¶14} To the extent that a sentence is not imposed in conformity with the
statutory mandates concerning postrelease control, it is void, and the void portion of
the sentence is subject to review at any time and “must be set aside.” State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the
syllabus and ¶ 26-27. But any correction of the offending portion of the sentence
must be accomplished before the offender is released from prison. If it is not, the
offender may not be placed under the postrelease-control supervision of the Ohio
Adult Parole Authority, nor may he be sanctioned for any postrelease-control
violation. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, at ¶ 70-
73; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568,
syllabus; State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 18
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OHIO FIRST DISTRICT COURT OF APPEALS
(modified on other grounds in Fischer at paragraph two of the syllabus); Hernandez
v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 28 and 32; see State
v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 24 (holding that if
postrelease-control notification was properly given at the sentencing hearing, flawed
notification in the judgment of conviction may be corrected by a Crim.R. 36 nunc pro
tunc entry, “as long as the correction is accomplished prior to the defendant’s
completion of his prison term”). Accord State v. Wurzelbacher, 1st Dist. Hamilton
No. C-130011, 2013-Ohio-4009, ¶ 16-17; State v. Duncan, 1st Dist. Hamilton No. C-
120324, 2013-Ohio-381, ¶ 15.
{¶15} Lopez’s sentences are void to the extent that he was not adequately
notified concerning postrelease control. Therefore, the common pleas court had
jurisdiction to review the sentences and to vacate the offending portions. But
because Lopez has been released from prison, the common pleas court could not
correct his sentences, postrelease control could not be imposed, and Lopez could not
be sanctioned for any postrelease-control violation.
{¶16} We affirm, but remand with instructions. To summarize, we
dismiss the case numbered C-120555 as superfluous to the case numbered C-120436.
And we hold that Lopez’s “Motion to Terminate Post Release [sic] Control” was
subject to dismissal, because the postconviction statutes did not confer on the
common pleas court jurisdiction to entertain the motion on its merits. Accordingly,
upon the authority of App.R. 12(A)(1)(a), we modify the judgment appealed from to
reflect a dismissal of the motion. And we affirm the judgment as modified.
{¶17} The court did have jurisdiction to review and to vacate Lopez’s
sentences as void to the extent that they were not imposed in conformity with the
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OHIO FIRST DISTRICT COURT OF APPEALS
statutory mandates concerning postrelease control. But the court could not correct
the offending portions of the sentences because Lopez had completed his sentences.
Accordingly, we remand with instructions to vacate the void portions of the
sentences and to note on the record that, because Lopez has completed his sentences,
the offending portions of his sentences may not be corrected, postrelease control may
not be imposed, and Lopez may not be sanctioned for any postrelease-control
violation.
Judgment accordingly.
CUNNINGHAM, P.J., and DINKELACKER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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