State v. Tolbert , 103 N.E.3d 245 ( 2017 )


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  • [Cite as State v. Tolbert, 
    2017-Ohio-9159
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 105326
    STATE OF OHIO
    PLAINTIFF-APPELLANT
    vs.
    REGINALD TOLBERT
    DEFENDANT-APPELLEE
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case Nos. CR-07-498281-A, CR-07-498417-A, and CR-07-501690-B
    BEFORE: Boyle, J., E.T. Gallagher, P.J., and Laster Mays, J.
    RELEASED AND JOURNALIZED: December 21, 2017
    ATTORNEYS FOR APPELLANT
    Michael C. O’Malley
    Cuyahoga County Prosecutor
    BY: Brett Hammond
    Katherine Mullin
    Assistant County Prosecutors
    Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    ATTORNEYS FOR APPELLEE
    Timothy Young
    Ohio Public Defender
    BY: Allen Vender
    Andrew David Hartman
    Assistant State Public Defenders
    250 East Broad Street, Suite 1400
    Columbus, Ohio 43215
    MARY J. BOYLE, J.:
    {¶1} This court granted plaintiff-appellant state of Ohio leave to appeal this case
    after the trial court vacated defendant-appellee Reginald Tolbert’s postrelease control.
    The state raises two assignments of error for our review:
    1. The trial court erred when it granted defendant’s motion to vacate
    postrelease control. To impose valid postrelease control, the language in
    the sentencing entry may incorporate the advisements given during the
    sentencing hearing by referencing the postrelease control sections of the
    Ohio Revised Code and do not need to repeat what was said during the
    sentencing hearing.
    2. The requirement that a trial court must journalize the specific
    requirements of postrelease control is based upon legal precedent that
    should not be retroactively applied in this case.
    {¶2} In this appeal, the state acknowledges that under current precedent in the
    Eighth District, the postrelease-control notification was invalid because the trial court did
    not include the “specific consequences of violating postrelease control in the sentencing
    journal entry.”    The state contends, however, that this precedent was decided in error and
    should be overruled.
    {¶3} Finding no merit to the state’s appeal, we affirm the judgment of the trial
    court.
    I. Procedural History
    {¶4} In late 2007, Tolbert was sentenced to six years in prison for three separate
    cases: Cuyahoga C.P. No CR-07-498281-A, Cuyahoga C.P. No. CR-07-498417-A, and
    Cuyahoga C.P. No. CR-07-501690-B. In each of these cases, the trial court stated the
    following in the sentencing entries regarding postrelease control:
    Postrelease control is part of this prison sentence for 3 years for the above
    felony(s) under R.C. 2967.28.
    {¶5} Tolbert was released from prison in these cases on May 13, 2013. At that
    time, he was placed on three years of postrelease control.
    {¶6} On December 13, 2013, Tolbert was convicted of receiving stolen property
    in Cuyahoga C.P. No. CR-13-577719-A. He was sentenced to six months in prison and
    advised that upon his release, he may be placed on postrelease control for up to three
    years.
    {¶7} Tolbert was released from prison in CR-13-577719-A on May 15, 2014.
    Upon his release, the Adult Parole Authority (“APA”) chose not to place him on
    postrelease control for this case.   Instead, the APA placed Tolbert on postrelease control
    for the time remaining in his 2007 cases, which was 2.44 years. When Tolbert filed his
    motion to vacate postrelease control, he was “serving a prison sanction for violating” the
    terms of his 2007 postrelease control.
    {¶8} When Tolbert filed his motion to vacate postrelease control, the state and
    Tolbert filed a joint statement of justiciability with the trial court along with Tolbert’s
    motion to vacate because Tolbert had previously filed a motion to vacate postrelease
    control that the state opposed, believing that Tolbert was on postrelease control from his
    2013 case.     When the state learned that Tolbert was actually on postrelease control from
    his 2007 cases, it conceded that the issue was not moot and joined with Tolbert to file the
    statement of justiciability.   The state further acknowledged to the trial court “that current
    binding precedent in the Eighth District Court of Appeals supports Tolbert’s arguments.”
    But the state opposed Tolbert’s motion “for purposes of further appellate review.”
    {¶9} After the trial court granted Tolbert’s motion to vacate his postrelease
    control, the state moved this court for leave to appeal, asserting that the appeal “presents
    this court with a question of public and general interest.”     The state further explained
    that “this exact proposition of law” was currently under review by the Ohio Supreme
    Court in State v. Grimes, Supreme Court Case No. 2016-0215, and that “Grimes will be
    dispositive of the substantive issue in the instant case.”   Because the state believed that
    Grimes would be dispositive of the issues in this appeal, it requested this court “to accept
    jurisdiction in this case until the Supreme Court of Ohio render[ed] its decision in
    Grimes.”   This court granted the state leave to appeal and held the case until the Ohio
    Supreme Court issued its decision in Grimes, which it did so on May 24, 2017.           See
    State v. Grimes, 
    151 Ohio St.3d 19
    , 
    2017-Ohio-2927
    .
    {¶10} Because the state and Tolbert filed their briefs with this court before the
    Supreme Court decided Grimes, this court sua sponte issued an order asking Tolbert “to
    determine whether the recently announced decision [in Grimes] is applicable to this
    appeal and further determine whether the appellee concedes assignment of error one.”      If
    Tolbert conceded the error, we ordered him to file a notice of conceded error by a date
    certain.
    {¶11} Tolbert complied with our order and filed a supplemental memorandum,
    informing this court that Grimes was applicable but that he was not conceding assignment
    of error one.   Tolbert explained that Grimes was applicable because it established what
    information a trial court must include in a sentencing entry to validly impose postrelease
    control when the court orally provided all of the required advisements at the sentencing
    hearing.   But Tolbert maintained that even under Grimes, the trial court’s advisement in
    his 2007 cases was invalid for two reasons: (1) it was not clear whether his postrelease
    control was discretionary or mandatory, and (2) the sentencing entry gave no indication at
    all that there were consequences for violating postrelease control.
    {¶12} We now turn to the state’s assigned errors.
    II. Motion to Vacate Postrelease Control
    {¶13} In its first assignment of error, the state argues that although the trial court
    followed Eighth District precedent when it vacated Tolbert’s postrelease control —
    because the trial court failed to journalize “the specific consequences of violating
    postrelease control in Tolbert’s 2007 cases” — the state maintains that the prior Eighth
    District “decisions were wrongly decided” and should be overruled.
    A. Prior Eighth District Law
    {¶14} In granting Tolbert’s motion, the trial court relied on our unanimous en banc
    decision in State v. Mace, 8th Dist. Cuyahoga No. 100779, 
    2014-Ohio-5036
    . In Mace,
    we were asked: “whether a sentencing journal entry that states that the appellant is subject
    to postrelease control for the ‘maximum period allowed’ for that felony is void, even if
    the court informed the defendant at the sentencing hearing of the specific period of
    postrelease control imposed.”     This court unanimously answered that the appellant’s
    postrelease control was void. Id. at ¶ 1.
    {¶15} This court has repeatedly followed Mace, finding that when a trial court
    failed to set forth the specific consequences for violating postrelease control (that the
    parole board could impose a maximum prison term of up to one-half of the prison term
    originally imposed) 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. Martin, 8th Dist. Cuyahoga No.
    102336,     
    2015-Ohio-2865
    ;       State   v.   Love,    8th    Dist.   Cuyahoga      No.    102058,
    
    2015-Ohio-1461
    .
    {¶16} But we must now consider this viability of this precedent in light of the
    Supreme Court’s recent decision in Grimes.
    B. State v. Grimes
    {¶17} In Grimes, the Ohio Supreme Court accepted the state’s discretionary appeal
    to address the following proposition of law:
    To impose valid post release control, the language in the sentencing entry
    may incorporate the advisements given during the sentencing hearing by
    referencing the post release control sections of the Ohio Revised Code and
    do not need to repeat what was said during the sentencing hearing.
    Grimes, Slip Opinion No. 
    2017-Ohio-2927
    , at ¶ 7.1
    The Ohio Supreme Court accepted the state’s discretionary appeal of an intra-district conflict
    1
    in the Fifth District after the Fifth District issued an en banc decision in the case stating that “a
    {¶18} The trial court in Grimes orally provided all of the required advisements to
    the offender at the sentencing hearing.         The sentencing entry, however, only stated:
    The Court further notified the Defendant that “Post Release Control” is
    mandatory in this case for three (03) years as well as the consequences for
    violating conditions of post release control imposed by Parole Board under
    Revised Code § 2967.28. The Defendant is ordered to serve as part of this
    sentence any term for violation of that post release control.
    Id. at ¶ 2.
    {¶19} Grimes appealed to the Fifth District when the trial court denied his motion
    to vacate postrelease control. State v. Grimes, 5th Dist. Muskingum No. CT2015-0026,
    
    2015-Ohio-3497
    , ¶ 13.           The Fifth District held that the trial court’s August 2011
    sentencing entry was “silent as to the consequences of violating postrelease control”
    because the court “failed to inform [Grimes] if he violated his supervision or a condition
    of post-release control, the parole board could impose a maximum prison term of up to
    one-half of the prison term originally imposed.” Id. at ¶ 12.
    {¶20} The Supreme Court first reviewed the statutory requirements for postrelease
    control notifications that a trial court is required to give an offender at the sentencing
    hearing.      It stated:
    The court at a sentencing hearing must notify the offender that he or she
    “will” or “may” “be supervised under section 2967.28 of the Revised Code
    after the offender leaves prison if the offender is being sentenced for” a
    felony.    R.C. 2929.19(B)(2)(c) and (d).        The offender “will” be
    supervised if the offender has been convicted of a felony subject to
    mandatory postrelease control. R.C. 2929.19(B)(2)(c) and 2967.28(B).
    The offender “may” be supervised if the offender has been convicted of a
    less serious felony for which the APA has discretion to impose postrelease
    majority of the full-time judges of the appellate district is unable to concur in a decision.”
    control. R.C. 2929.19(B)(2)(d) and 2967.28(C). The postrelease-control
    law also designates the term of supervision for each degree of felony.
    R.C. 2967.28(B) and (C). Additionally, the court, at the sentencing
    hearing, must notify the offender that if he or she “violates that supervision
    * * *, the parole board may impose a prison term, as part of the sentence, of
    up to one-half of the stated prison term originally imposed upon the
    offender.” R.C. 2929.19(B)(2)(e).
    Id. at ¶ 9.
    {¶21} The Supreme Court explained that although it had held in State v. Jordan,
    
    104 Ohio St.3d 21
    , 
    2004-Ohio-6085
    , 
    817 N.E.2d 864
    , that in order to validly impose
    postrelease control the notice given at the sentencing hearing must be incorporated into
    the sentencing entry, it had never “decided whether — and if so, how — notice of the
    consequences of violating a condition of postrelease control must also be incorporated
    into the sentencing entry.” Grimes at ¶ 11, citing Jordan at ¶ 17.
    {¶22} The Supreme Court held that to validly impose postrelease control when the
    court orally provides all the required advisements at the sentencing hearing, the
    “minimally compliant” 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 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, 13.
    {¶23} The Supreme Court explained that “‘our main focus in interpreting the
    sentencing statutes regarding postrelease control has always been on the notification itself
    and not on the sentencing entry.’” Id. at ¶ 14, quoting State v. Qualls, 
    131 Ohio St.3d 499
    , 
    2012-Ohio-1111
    , 
    967 N.E.2d 718
    .           The court further explained that “we have
    deemed the ‘preeminent purpose’ of R.C. 2967.28 to be that ‘offenders subject to
    postrelease control know at sentencing that their liberty could continue to be restrained
    after serving their initial sentences.’”   (Emphasis sic.) 
    Id.,
     quoting Watkins v. Collins,
    
    111 Ohio St.3d 425
    , 
    2006-Ohio-5082
    , 
    857 N.E.2d 78
    .
    {¶24} “A sentencing entry’s silence on postrelease control, however,” would be
    invalid “because it is the sentencing entry that ‘empowers the executive branch of
    government to exercise its discretion[.]’” Id. at ¶ 15, quoting Jordan, 
    104 Ohio St.3d 21
    , 
    2004-Ohio-6085
    , 
    817 N.E.2d 864
    . Essentially, the Supreme Court made clear that
    “a minimally compliant” sentencing entry “must provide the APA the information it
    needs to execute the postrelease-control portion of the sentence.” Id. at ¶ 17.        The
    Supreme Court explained that the entry in Grimes incorporated all the notifications
    necessary for the APA to perform its job. Id. Specifically, “[b]y specifying that Grimes
    was subject to mandatory supervision for three years, the entry informed the APA that it
    lacked discretion as to whether to impose postrelease control or for how long.” Id.
    And because the entry also informed the APA that Grimes had been advised that if he
    violated any of the conditions of postrelease control there would be consequences, up to
    and including prison time, as described in R.C. 2967.28(D)(1), “the APA could review
    R.C. 2967.28 for necessary information about its authority to impose postrelease control
    and to punish Grimes for any violations.” Id. at ¶ 18.
    C. Grimes Applied
    {¶25} The state argued in its motion for leave to appeal that Grimes would be
    dispositive of the issues in this case.     When reviewing the trial court’s postrelease
    control advisement in the sentencing entry in this case, there is no question that the trial
    court informed Tolbert of the duration of postrelease control — three years.           With
    respect to the remaining requirements, however, Tolbert raises two arguments, which we
    address below.
    1.   Discretionary or Mandatory
    {¶26} Tolbert first argues that the trial court’s sentencing entry was invalid under
    Grimes because the trial court did not specifically use the word “mandatory.”            We
    disagree.
    {¶27} The trial court’s statement that “[p]ostrelease control is part of this prison
    sentence for 3 years” conveyed to Tolbert that his supervision would be mandatory for
    three years. See State v. McGee, 8th Dist. Cuyahoga No. 101307, 
    2014-Ohio-5289
    (court’s sentencing entry, which stated: “postrelease control is part of this prison sentence
    for 5 years for the above felony(s) under R.C. 2967.28,” provided the defendant with
    notice that he would be subject to mandatory postrelease control); State v. Rucker, 1st
    Dist. Hamilton No. C-150434, 
    2016-Ohio-5111
    , ¶ 6 (court’s statement to defendant that
    “you’ll be on a period of supervision” was sufficient to notify him of the mandatory
    nature of his postrelease control).
    2. Consequences for Violating Postrelease Control
    {¶28} Tolbert next argues that the trial court’s sentencing entry was invalid under
    Grimes because it did not give any “indication that there are consequences for violating
    postrelease control.”   We agree with this argument.
    {¶29} In Grimes, the Supreme Court held that a trial court need not specifically
    spell out the consequences for violating postrelease control in the sentencing entry as long
    as it did so at the sentencing hearing. But it held that the sentencing entry must still
    contain an advisement “that any violation by the offender of the conditions of postrelease
    control will subject the offender to the consequences set forth in the statute.”     Here, the
    sentencing entry says nothing about Tolbert being subject to any consequences for
    violating the terms of his postrelease control.    Accordingly, we hold that even under
    Grimes, the trial court’s sentencing entry was not sufficient to validly impose postrelease
    control.
    {¶30} Thus, after reviewing Grimes’s applicability to prior Eighth District cases,
    we find that they are overruled by Grimes to the extent that these cases found postrelease
    control to be invalid when the sentencing entry did not spell out the specific consequences
    for violating postrelease control.   But we note that a trial court must still advise an
    offender that he or she will be subject to consequences under R.C. 2967.28.        Grimes at ¶
    1.
    {¶31} We need not address the state’s remaining arguments within its first
    assignment of error because they are moot in light of Grimes, which the state
    acknowledged in its motion for leave to appeal and in its appellate brief.
    {¶32} The state’s first assignment of error is overruled.
    III.   Retroactivity
    {¶33} In its second assignment of error, the state maintains that when the trial
    court announced Tolbert’s sentences in 2007, the postrelease control advisement was
    sufficient under Eighth District law at that time. Subsequent to Tolbert’s sentence,
    however, the Eighth District “announced a new rule of law when it held that in order to
    impose postrelease control sanctions, the sentencing journal entry must specifically state
    that if the offender violates postrelease control, he could be subject up to an additional
    prison term of up to one-half of the originally stated prison term.”      The state maintains
    that this “new” rule of law should not have been applied retroactively.     We disagree.
    {¶34} It is well established that when postrelease control is not properly imposed,
    the sentence is void and must be set aside. See State v. Singleton, 
    124 Ohio St.3d 173
    ,
    
    2009-Ohio-6434
    , 
    920 N.E.2d 958
     (providing a history of Supreme Court cases on void
    postrelease control).   Further, a void sentence can be attacked at any time. See State v.
    Fischer, 
    128 Ohio St.3d 92
    , 
    2010-Ohio-6238
    , 
    942 N.E.2d 332
    , paragraph one of the
    syllabus (a sentence that does not include the statutorily mandated term of postrelease
    control is void, is not precluded from appellate review by principles of res judicata, and
    may be reviewed at any time).
    {¶35} Because the portion of Tolbert’s sentence entry that improperly advised him
    of postrelease control is void, the state’s argument that Eighth District law should not be
    retroactively applied is without merit.
    {¶36} The state’s second assignment of error is overruled.
    {¶37} Judgment affirmed.
    It is ordered that appellee recover from appellant 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.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    MARY J. BOYLE, JUDGE
    EILEEN T. GALLAGHER, P.J., and
    ANITA LASTER MAYS, J., CONCUR