State v. Hill , 91 N.E.3d 212 ( 2017 )

[Cite as State v. Hill, 2017-Ohio-4006.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 16 JE 0021
)
PLAINTIFF-APPELLEE, )
)
)
VS. ) OPINION
)
AARON HILL, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Jefferson County,
Ohio
Case No. 02-CR-76
JUDGMENT: Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellee: No Brief Filed
For Defendant-Appellant: Atty. Craig M. Jaquith
Senior Assistant Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: May 25, 2017
[Cite as State v. Hill, 2017-Ohio-4006.]
ROBB, P.J.
{¶1} Defendant-Appellant Aaron A. Hill appeals Jefferson County Common
Pleas Court’s denial of his motion to vacate post-release control and parole authority
sanction time.1 Appellant asserts the trial court’s decision was incorrect because the
sentencing judgment entry did not properly impose post-release control, he has
completed his prison term, and the judgment entry was not corrected prior to the
expiration of his sentence. For the reasons expressed below, we agree. The trial
court’s decision is reversed and the matter remanded to the trial court with
instructions to discharge Appellant from post-release control.
Statement of the Case
{¶2} Appellant was indicted in April 2002 for three counts of aggravated
murder, one count of kidnapping, two counts of aggravated burglary, two counts of
having a weapon while under disability, one count of carrying a concealed weapon,
and one count of possession of drugs. Gun specifications were attendant to each
count. Two of the aggravated murder counts had capital specifications.
{¶3} Appellant pled not guilty. The case proceeded to trial. After the first
day of trial, the parties reached a plea agreement. The state agreed to amend the
first count of the indictment to voluntary manslaughter, a first-degree felony in
violation of R.C. 2903.03, with an attendant gun specification. 4/11/03 Tr. 4. Counts
two, three, four, six, nine, and ten, and their attendant specifications were nolled.
4/11/03 Tr. 4-5. The state nolled the specifications on counts five, seven and eight.
4/11/03 Tr. 4-5. Thus, Appellant entered a guilty plea to voluntary manslaughter with
an attendant firearm specification, aggravated burglary, and two counts of having
weapons while under disability. 4/11/03 Tr. 4-5. Appellant also agreed to enter a
guilty plea in case number 01-CR-158 for the charge of possession of cocaine in
excess of five grams. 4/11/03 Tr. 5. The state dismissed the attendant specification
1 Appellant has completed his parole authority sanction time
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in that case. 4/11/03 Tr. 5. Appellant and the state also entered into an agreed
recommendation of sentence; they agreed to an aggregate 13 year sentence
composed of 10 years for the underlying offenses and 3 years for the gun
specification. 4/11/03 Tr. 5; 4/11/03 J.E.
{¶4} The trial court then conducted a Crim.R. 11 colloquy. During this
colloquy, the trial court told Appellant he would be subject to five years of post-
release control. 4/11/03 Tr. 14. The trial court instructed Appellant that if he violated
the conditions of post-release control he could be sent back to prison for up to nine
months each time. 4/11/03 Tr. 14. Appellant was advised that those additional nine-
month sentences could amount to half of the prison time the trial court imposed,
which would be 6 1/2 years if the trial court imposed the recommended 13 years.
4/11/03 Tr. 14-15. The trial court’s advisement on post-release control was three
pages in length. 4/11/03 Tr. 14-16.
{¶5} Following the advisements, Appellant entered a guilty plea, the trial
court accepted the plea, and it proceeded immediately to sentencing. 4/11/03 Tr. 17.
The trial court followed the agreed recommendation of sentence. 4/11/03 Tr. 5;
4/11/03 J.E. Appellant received 10 years for the voluntary manslaughter conviction
and an additional 3 years for the attendant gun specification. 4/11/03 J.E. He
received 5 years for the aggravated burglary conviction, 1 year for each of the having
weapons while under disability convictions, and 1 year for possession of cocaine.
4/11/03 J.E. The sentences for aggravated burglary, having weapons while under
disability, and possession of cocaine were ordered to run concurrent with the
voluntary manslaughter sentence. 4/11/03 J.E.
{¶6} During the sentencing portion of the hearing, post-release control was
not mentioned; there was no advisement on post-release control and there was no
direct imposition of the five year term of post-release control. 4/11/03 Tr. 17-24. The
only mention of post-release control in the sentencing judgment entry is one
sentence stating, “Defendant has been given notice of Post Release Control.”
4/11/03 J.E.
{¶7} Appellant did not appeal his plea or sentence.
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{¶8} His five year supervision by the Adult Parole Authority began on April
12, 2015.
{¶9} On July 22, 2016, Appellant filed a Motion to Vacate Post-Release
Control and Parole-Authority Sanction Time. Appellant asserted for the first time that
the trial court’s imposition of post-release control was void because he was not
properly advised of post-release control at the sentencing hearing or in the
sentencing judgment entry. The trial court denied the motion. 8/19/16 J.E.
{¶10} Appellant timely appeals the trial court’s decision. No brief was filed by
the state.
Assignment of Error
“The trial court erred when it failed to vacate Mr. Hill’s void post release
control.”
{¶11} Appellant argues the imposition of post-release control is void because
the trial court did not give the proper advisements in its April 11, 2003 judgment
entry.
{¶12} In sentencing a defendant, the trial court must notify the defendant at
the sentencing hearing of any term of post-release control and incorporate the post-
release control notification into the sentencing entry. R.C. 2929.19(B)(2)(c)–(e);
State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph one
of the syllabus, superseded by statute on other grounds. See also State v. Bundy,
7th Dist. No. 12 MA 86, 2013-Ohio-2501, 994 N.E.2d 9, ¶ 10. If a trial court fails to
impose the statutorily mandated term of 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. “[V]oid sentences are
not precluded from appellate review by principles of res judicata and may be
reviewed at any time, on direct appeal or by collateral attack.” Id. at ¶ 40. Res
judicata, however, “still applies to other aspects of the merits of a conviction,
including the determination of guilt and the lawful elements of the ensuing sentence.”
Id.
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{¶13} If the trial court failed to make the post-release control advisement at
the sentencing hearing and the defendant has not completed his sentence the
appropriate remedy is a new sentencing hearing limited to proper imposition of post-
release control. Id. at ¶ 29. A new sentencing hearing is needed in that situation
because in order “to fulfill the requirements of the postrelease-control-sentencing
statutes, especially R.C. 2929.19(B) and 2967.28, a trial court must provide
statutorily compliant notification to a defendant regarding postrelease control at the
time of sentencing, including notifying the defendant of the details of the postrelease
control and the consequences of violating postrelease control.” State v. Qualls, 131
Ohio St. 3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18. Therefore, even if the post-
release control advisement is given in the judgment entry, a new sentencing hearing
is required when the advisement was not given at the sentencing hearing. However,
if the defendant has completed the prison term for the original sentence, the
defendant cannot be subject to another sentencing hearing to correct the trial court's
flawed imposition of postrelease control. State v. Bloomer, 122 Ohio St. 3d 200,
2009-Ohio-2462, 909 N.E.2d 1254, ¶ 70, citing State v. Bezak, 114 Ohio St. 3d 94,
2007-Ohio-3250, 868 N.E.2d 961, ¶ 18 and State v. Simpkins, 117 Ohio St. 3d 420,
2008-Ohio-1197, 884 N.E.2d 568, at syllabus.
{¶14} If the trial court made the post-release control advisement at the
sentencing hearing, but failed to incorporate that advisement into the final judgment
entry, the proper remedy is correction through means of a nunc pro tunc entry.
Qualls, 2012-Ohio-1111 at ¶ 13. “No new sentencing hearing is required, because
the trial court's failure to include the postrelease-control term in the original
sentencing entry was manifestly a clerical error.” State ex rel. Womack v. Marsh, 128
Ohio St. 3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶ 13. The sentencing judgment
entry, however, must be corrected before the defendant completes the prison term
for the offense for which post-release control was to be imposed. Qualls at ¶ 16, 24.
If it is not corrected prior to the completion of the sentence, post-release control
cannot be imposed. Id.
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{¶15} In this case, Appellant’s focus is on the judgment entry. In the
judgment entry, the only advisement as to post-release control was: “Defendant has
been given notice of Post Release Control.” This statement is insufficient. State v.
Ocel, 7th Dist. No. 08JE22, 2009-Ohio-2633, ¶ 30 (Entry insufficiently stated,
“defendant has been given notice of post-release control”); State v. O'Connor, 7th
Dist. No. 10 MA 81, 2010-Ohio-6384, ¶ 3, 11-12 (Post-release control sentencing
entry merely stating, “Defendant has been given notice under R.C. 2929.19(B)(3),” is
not sufficient.); Bundy, 2013-Ohio-2501 at ¶ 12 (The only mention of post-release
control in the judgment entry was: “Defendant was also advised pursuant to R.C.
2967.28.” That was insufficient. Nunc pro tunc entry was entered after Appellant was
released from prison and thus, could not correct the deficient judgment entry.)
{¶16} Appellant has been released from prison for the offenses for which
post-release control was imposed. Given the deficient judgment entry, Appellant
cannot now be subject to post-release control. In order to be subject to post-release
control, the original sentencing entry had to be corrected prior to the defendant’s
completion of his prison term. Qualls, 2012-Ohio-1111 at ¶ 16, 24. See also Bundy
at ¶ 12, 30.
{¶17} Consequently, the trial court erred in denying Appellant’s motion to
vacate post-release control.
{¶18} Admittedly, the sentence in this case was an agreed upon sentence.
However, our sister district recently explained an agreed upon sentence does not
affect a defendant’s ability to appeal the inadequacy of the post-release control
advisement:
R.C. 2953.08(D)(1) states, “A sentence imposed upon a defendant is
not subject to review under this section if the sentence is authorized by
law, has been recommended jointly by the defendant and the
prosecution in the case, and is imposed by a sentencing judge.” “In
other words, a sentence that is ‘contrary to law’ is appealable by a
defendant; however, an agreed-upon sentence may not be if (1) both
the defendant and the state agree to the sentence, (2) the trial court
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imposes the agreed sentence, and (3) the sentence is authorized by
law. R.C. 2953.08(D)(1). If all three conditions are met, the defendant
may not appeal the sentence.” State v. Underwood, 124 Ohio St. 3d
365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 16.
In Underwood, the Court defined a sentence “authorized by law” to
mean more than whether the sentence falls within the statutory range
for the offense: We do not agree with such a narrow interpretation of
“authorized by law.” Adopting this reasoning would mean that jointly
recommended sentences imposed within the statutory range but
missing mandatory provisions, such as postrelease control (R.C.
2929.19(B)(3)(c)) or consecutive sentences (R.C. 2929.14(D) and (E)),
would be unreviewable. Our recent cases illustrate that sentences that
do not comport with mandatory provisions are subject to total
resentencing. See, e.g., State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-
3250, 868 N.E.2d 961, ¶ 11. Nor can agreement to such sentences
insulate them from appellate review, for they are not authorized by law.
We hold that a sentence is “authorized by law” and is not appealable
within the meaning of R.C. 2953.08(D)(1) only if it comports with all
mandatory sentencing provisions. A trial court does not have the
discretion to exercise its jurisdiction in a manner that ignores mandatory
statutory provisions. See State v. Simpkins, 117 Ohio St. 3d 420, 2008-
Ohio-1197, 884 N.E.2d 568, ¶ 27 (“Every judge has a duty to impose
lawful sentences”). Id. at ¶ 20–21.
As we have already stated, a trial court is required to notify the offender
about post-release control at the sentencing hearing and to incorporate
that notice into its journal entry imposing sentence. Adkins, 2014-Ohio-
3389, 2014 WL 3824030 at ¶ 36. These are mandatory statutory
provisions. As we have concluded above, Cupp's post-release control
in Ross County Case No. 04CR80 is void. A void “sentence may be
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reviewed at any time, on direct appeal or by collateral attack.” Fischer,
128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332 at paragraph one
of the syllabus. Accordingly, Cupp cannot waive his right to appeal his
sentence on those grounds. See State v. Middleton, 8th Dist.
Cuyahoga No. 99979, 2013-Ohio-5591, 2013 WL 6730881, ¶ 15.
State v. Cupp, 4th Dist. No. 16CA1024, 2016-Ohio-8462, ¶ 26-28.
{¶19} This reasoning is persuasive. Consequently, even though the sentence
was agreed upon, Appellant cannot waive his right to challenge the failure to follow
statutory mandates in imposing post-release control.
{¶20} The sole assignment of error has merit.
Conclusion
{¶21} The trial court erred in denying Appellant’s motion to vacate post-
release control because the sentencing judgment entry did not sufficiently advise
Appellant of post-release control. Therefore, the post-release control sentence was
void. Since Appellant has been released from prison for the offenses for which post-
release control was imposed and the sentencing judgment entry was not corrected
prior to his release, Appellant cannot now be subject to post-release control. The trial
court’s decision is reversed and the matter remanded to the trial court with
instructions to discharge Appellant from his term of post-release control.
Donofrio, J., concurs.
Waite, J., concurs.