State v. Smith , 2012 Ohio 5965 ( 2012 )

[Cite as State v. Smith, 2012-Ohio-5965.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120163
TRIAL NO. B-0402830
Plaintiff-Appellee, :
vs. : O P I N I O N.
ROBERT SMITH, :
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: December 19, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Robert Smith, pro se.
Please note: we have removed this case from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Defendant-appellant Robert Smith appeals from the Hamilton County
Common Pleas Court’s judgment overruling an array of postconviction motions. We
affirm the court’s judgment overruling the motions, but we remand this case for the
proper imposition of postrelease control.
{¶2} In 2004, Smith was convicted upon a guilty plea to drug possession
and upon jury verdicts finding him guilty of aggravated robbery and felonious
assault. His convictions were affirmed in his direct appeals to this court and to the
Ohio Supreme Court. State v. Smith, 1st Dist. Nos. C-040512 and C-040524 (May
31, 2004), appeals not accepted, 109 Ohio St.3d 1459, 2006-Ohio-2226, 847 N.E.2d
7, and 108 Ohio St.3d 1437, 2006-Ohio-421, 842 N.E.2d 63.
{¶3} Smith also unsuccessfully challenged his convictions collaterally in a
series of postconviction motions. See State v. Smith, 1st Dist. No. C-070288 (Mar.
12, 2008) (affirming the denial of Smith’s 2005 and 2007 postconviction petitions).
He here appeals from the common pleas court’s judgment overruling his September
2010 “Motion to Vacate Sentence,” October 2010 “Motion to Vacate Defendant’s
Conviction and Sentence Due to Court’s Lack of Subject Matter Jurisdiction,”
December 2010 “Motion to Vacate Sentence * * * Pursuant to State v. Foster,” and
February 2012 “Motion to Vacate Payment of Fines and/or Court Cost.”
{¶4} On appeal, Smith presents two assignments of error. His first
assignment of error challenges the overruling of his September 2010 “Motion to
Vacate Sentence.” His second assignment of error essentially restates the claim
advanced in his December 2010 “Motion to Vacate Sentence * * * Pursuant to State
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OHIO FIRST DISTRICT COURT OF APPEALS
v. Foster” and may thus fairly be read to challenge the overruling of that motion. We
address together, and overrule, the assignments of error.
{¶5} Claims were reviewable under R.C. 2953.21 et seq. In his
September and December 2010 motions, Smith sought to be resentenced. In his
September 2010 motion, he argued that his sentences were void to the extent that
the trial court had failed to adequately notify him concerning postrelease control. In
his December 2010 motion, Smith cited the United States Supreme Court’s decisions
in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and
Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), as well as the Ohio
Supreme Court’s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, in arguing that the trial court, by sentencing him to maximum
consecutive prison terms, had denied him the right to a jury trial guaranteed under
the Sixth Amendment to the United States Constitution.
{¶6} Smith did not specify in his motions the statute or rule under which he
sought relief. R.C. 2953.21 et seq., governing the proceedings upon a postconviction
petition, permit a collateral attack upon a judgment of conviction by one “who claims
that there was such a denial or infringement of his rights [in the proceedings
resulting in his conviction] as to render [his conviction] void or voidable under the
Ohio Constitution or the Constitution of the United States.” R.C. 2953.21(A)(1)(a).
The postconviction statutes 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 recast
Smith’s motions as postconviction petitions and reviewed them under the standards
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OHIO FIRST DISTRICT COURT OF APPEALS
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.
{¶7} Postconviction statutes conferred no jurisdiction to
entertain Smith’s claims. A postconviction petition must be filed with the
common pleas court within 180 days after the transcript of the proceedings is filed in
the direct appeal. R.C. 2953.21(A)(2). R.C. 2953.23 closely circumscribes the court’s
jurisdiction to entertain a late postconviction petition. 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 federal or state right recognized by the United States
Supreme Court since the expiration of the time prescribed in R.C. 2953.21(A)(2).
R.C. 2953.23(A)(1)(a). And he must show “by clear and convincing evidence that,
but for constitutional error at trial, no reasonable factfinder would have found the
petitioner guilty of the offense of which the petitioner was convicted.” R.C.
2953.23(A)(1)(b).
{¶8} Smith’s motions were filed well after the expiration of the time
prescribed by R.C. 2953.21(A)(2). And the record does not demonstrate either that
Smith was unavoidably prevented from discovering the facts underlying his claims,
or that his claims were 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 Smith 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 Smith’s postconviction claims on their merits.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Court had jurisdiction to correct sentences to the extent
postrelease-control notification was inadequate. 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. The common pleas court had
no jurisdiction to grant Smith the relief sought in his December 2010 motion,
because a sentence imposed under a statute declared unconstitutional in Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, is not void. See State v. Payne, 114
Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 27-29. But the court had
jurisdiction to grant Smith the relief sought in his September 2010 motion, because
his sentences were void to the extent that he had not been adequately or accurately
notified concerning postrelease control.
{¶10} 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
the sentencing hearing concerning postrelease control and must incorporate
postrelease-control notification in the judgment of conviction. R.C. 2929.19(B)(3)(c)
and (d); 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 exercise its
discretion to impose postrelease control).
{¶11} In sentencing Smith for the first-degree felony of aggravated robbery,
the trial court was required to notify Smith that upon his release from prison, he
would be subject to a mandatory five-year period of postrelease-control supervision.
See R.C. 2929.19(B)(3)(c) and 2967.28(B)(1). In sentencing him for the second-
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OHIO FIRST DISTRICT COURT OF APPEALS
degree felony of felonious assault, the court was required to notify Smith that upon
his release from prison, he would be subject to a mandatory three-year period of
postrelease-control supervision. See R.C. 2929.19(B)(3)(c) and 2967.28(B)(2). In
sentencing him for the fourth-degree felony of drug possession, the court was
required to notify Smith that upon his release from prison, he could be subject to up
to three years of postrelease-control supervision. See R.C. 2929.19(B)(3)(d) and
2967.28(C). And the court was required to notify Smith, with respect to each
offense, 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); State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d
9, ¶ 77-79.
{¶12} At Smith’s sentencing hearing, the trial court advised him as follows:
I will note that * * * since this is a felony of the first degree, you will be
supervised under Section 2967.28 of the Ohio Revised Code, * * * after
you leave prison, for postrelease control. I further notify you, sir, that
* * * if, in fact, you are placed on postrelease control, which I believe
the law calls for, if you do violate any of the conditions of the
postrelease control, you could be returned to the institution for a term
of up to one half of the original sentence. I will further indicate to you
that if, in fact, you’re placed on postrelease control, which I believe the
law indicates you must be, and if, while on postrelease control, you
commit a new felony, you can receive a prison term for the violation of
the postrelease control as well as a prison term for * * * the new felony
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OHIO FIRST DISTRICT COURT OF APPEALS
for a total of up to the period of postrelease control or one year,
whichever is greater.
Thus, the postrelease-control notification provided at sentencing concerned only the
first-degree felony of aggravated robbery, and with respect to that offense, did not
specify the duration of his postrelease-control supervision, was less than clear about
the mandatory nature of the supervision, and did not specify the length of
confinement that could be imposed for a postrelease-control violation.
{¶13} The notification incorporated in the judgment of conviction was also
inadequate, 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.” The
judgment of conviction did not specify, with respect to each offense, the duration or
the mandatory or discretionary 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.
{¶14} The state nevertheless insists that the postrelease-control notification
provided to Smith at sentencing and in the judgment of conviction complied with the
statutory requirements, and that Smith “waived” any challenge to the notification
when he failed to raise it in his direct appeal. This argument is feckless.
{¶15} In support of its position, the state cites the Ohio Supreme Court’s
decision in State ex rel. Pruitt v. Cuyahoga Cty. Court of Common Pleas, 125 Ohio
St.3d 402, 2010-Ohio-1808, 928 N.E.2d 722. In Pruitt, the court denied a petition
for a writ of mandamus to compel the common pleas court to enter a revised
judgment of conviction. The court held that Pruitt was not entitled to an
extraordinary writ because the judgment of conviction, which fully complied with
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OHIO FIRST DISTRICT COURT OF APPEALS
Crim.R. 32(C), constituted a final appealable order. Id. at ¶ 3. The court then added,
but without specifying the postrelease-control notification provided, that the
judgment of conviction “sufficiently included language that postrelease control was
part of [Pruitt’s] sentence so as to afford him sufficient notice to raise any claimed
errors on appeal rather than by extraordinary writ.” Id. at ¶ 4. Accord State ex rel.
Quillen v. Warden, Marion Corr. Inst., 133 Ohio St.3d 161, 2012-Ohio-4299, 976
N.E.2d 898.
{¶16} The supreme court’s statement in Pruitt concerning the “sufficien[cy]”
of the judgment of conviction’s postrelease-control language was based on its 2006
decision in Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78.
In Watkins, inmates incarcerated for postrelease-control violations had petitioned
for writs of habeas corpus because their judgments of conviction had contained the
suggestion that postrelease control was discretionary when it was mandatory. The
supreme court denied the writs on the ground that the petitioners had an adequate
remedy at law. Watkins at ¶ 53. The court stated that “[a]ny challenge to the
propriety of the sentencing court’s imposition of postrelease control in the entries
could have been raised on appeal,” because the “erroneous” postrelease-control
notifications provided in the sentencing entries at issue in Watkins, unlike the
inadequate notifications that had led to the inmate’s release in successful habeas
cases, had been “sufficient to afford notice to a reasonable person that the courts
were authorizing postrelease control as part of each petitioner’s sentence” and “that
postrelease control could be imposed following the expiration of the person’s
sentence.” Id. at ¶ 51. Accord State ex rel. Peterson v. Durkin, 129 Ohio St.3d 213,
2011-Ohio-2639, 951 N.E.2d 381.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} The state’s reliance on Watkins and Pruitt is misplaced. Watkins and
its progeny were writ cases that were decided on the ground that the petitioners had
an adequate remedy at law. In that context, the court’s statements concerning the
“sufficien[cy]” of the postrelease-control notifications contained in the judgments of
conviction may be read to state not a rule of law concerning satisfaction of the
statutory mandates concerning postrelease-control notification, but a circumstance
under which an offender may fairly be deemed to have been on notice of an error in
his postrelease-control notification for which he had an adequate remedy at law.
{¶18} The supreme court said as much in its 2010 decision in State v.
Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9. Ketterer stood
convicted of both capital and noncapital offenses. In his appeal from his
resentencing on the noncapital offenses, the supreme court again remanded the case
for the proper imposition of postrelease control, upon its determination that the
postrelease-control notifications provided at sentencing and in the judgment of
conviction had been inadequate and inaccurate. Justice Lundberg Stratton alone
dissented, citing Watkins in support of a rule of substantial compliance. Id. at ¶ 83-
84 (Lundberg Stratton, J., dissenting). But the majority, noting the “considerabl[e]”
difference between the standard of review in a habeas case and the standard of
review in a direct appeal, found the dissent’s reliance on Watkins to be “misplaced”
and thus “rejected” the state’s invitation to “overlook[]” the postrelease-control-
notification “errors” on the authority of Watkins. Id. at ¶ 72-73 and 78; see also State
v. Burns, 4th Dist. No. 11CA19, 2012-Ohio-1626, fn. 3 (distinguishing Pruitt because
it was a mandamus action).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} Moreover, the state’s reading of Watkins—that the case establishes
both a rule of substantial compliance when some reference to postrelease control is
made at sentencing and in the judgment of conviction and a rule of “waiver” when
postrelease-control notification is not challenged on direct appeal—cannot be
reconciled with the supreme court’s subsequent non-writ decisions. In its 2009
decision in State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d
1254, the supreme court declared that “the most basic requirement” of the
postrelease-control statutes and the court’s postrelease-control decisions is that a
sentencing court must “notify the offender of the mandatory nature of the term of
postrelease control and the length of that mandatory term and incorporate that
notification in its entry.” Id. at ¶ 69. Accord State v. Edwards, 2d Dist. No. 2012-
CA-7, 2012-Ohio-4443, ¶ 10; State v. Clarke, 8th Dist. No. 97017, 2012-Ohio-924, ¶
6-9; State v. Ward, 1st Dist. No. C-110158, 2011-Ohio-6382, ¶ 4; State v. Williams,
10th Dist. No. 10AP-922, 2011-Ohio-4923, ¶ 12; State v. Perry, 12th Dist. Nos.
CA2011-01-008 and CA2011-02-017, 2011-Ohio-3637, ¶ 16; State v. Shepherd, 11th
Dist. No. 2010-A-0052, 2011-Ohio-2451, ¶ 25. In its 2010 decision in Ketterer, 126
Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, the court held that a sentencing
court must also notify the offender, with respect to each offense, of the consequences
of violating postrelease control and of the length of confinement that could be
imposed for a postrelease-control violation. Id. at ¶ 77-79. Accord State v. Lang, 129
Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 307-309; State v. Harris, 4th
Dist. No. 11CA15, 2012-Ohio-2185, ¶ 8; State v. Harris, 8th Dist. No. 95097, 2011-
Ohio-1072, ¶ 9. And in 2010, in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-
6238, 942 N.E.2d 332, the court reaffirmed its 2007 decision in State v. Bezak, 114
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus, to the extent of Bezak’s
holding that “[a] sentence that does not include the statutorily mandated term of
postrelease control is void.” Fischer at paragraph one of the syllabus and ¶ 27. And
the court held that “the offending portion of the sentence is subject to review and
correction” “at any time, on direct appeal or by collateral attack.” Id. Accord 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.
{¶20} Finally, in November 2012, the supreme court in State v. Billiter, ___
Ohio St.3d ___, 2012-Ohio-5144, ___ N.E.2d ___, put to rest any question
concerning the applicability of Watkins and its progeny to non-writ cases. In Billiter,
the court addressed a certified conflict between the Fifth and Second Appellate
Districts concerning “whether res judicata bars a criminal defendant from arguing
that his plea is void due to an earlier postrelease-control sentencing error when the
defendant has entered a plea of guilty to escape.” Id. at ¶ 1. Billiter’s 1998 judgment
of conviction had imposed for aggravated burglary a mandatory term of postrelease
control of up to three years, when a five-year term was mandated. In 2008, after he
had been placed on postrelease control and then convicted upon his guilty plea to
escape for violating the terms of that postrelease control, Billiter collaterally
challenged his 2008 escape conviction on the ground that postrelease control had
not, in 1998, been properly imposed. The Fifth Appellate District held, based on
Watkins, that res judicata barred Billiter from collaterally challenging the imposition
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OHIO FIRST DISTRICT COURT OF APPEALS
of postrelease control, because “the trial court’s incorrect sentence had nevertheless
given Billiter proper notice that he was subject to postrelease control, and so the
sentence was not void.” Id. at ¶ 5 (citing State v. Billiter, 5th Dist. No. 2008 CA
00198, 2009-Ohio-2709, ¶ 13 and 21). The supreme court, citing its post-Watkins
decisions in Fischer, Bloomer, and Bezak, reversed, holding that Billiter’s
aggravated-burglary sentence was “void” to the extent that the trial court had “failed
to sentence [him] to a correct term of postrelease control,” and that, as a
consequence, the Adult Parole Authority had no “authority” to impose postrelease
control, the trial court “was without jurisdiction to convict him on the escape
charge,” and res judicata did not bar his collateral challenge. Id. at ¶ 12. Accord State
v. Moats, 6th Dist. No. WM-11-009, 2012-Ohio-5555, ¶ 6 (following Billiter to
reverse the trial court’s holding that any error in the imposition of postrelease
control was “de minimis” and “cured” by Watkins).
{¶21} We, therefore, hold that to the extent that the trial court did not
adequately or accurately notify Smith concerning postrelease control, either at
sentencing or in the judgment of conviction, his sentences are void. Smith did not
assign this matter as error in his direct appeal from his convictions. He instead
presented a collateral challenge in his September 2010 motion. But regardless of a
case’s procedural posture, when a sentence is void to the extent that it was not
imposed in conformity with the statutory mandates concerning postrelease control,
and the matter has come to a court’s attention, whether on direct appeal or in a
collateral challenge, the court “cannot ignore” the matter, State v. Boswell, 121 Ohio
St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422, ¶ 12; see also State v. Simpkins, 117
Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 23, and “the offending portion
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OHIO FIRST DISTRICT COURT OF APPEALS
of the sentence is subject to review and correction.” Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus and ¶ 27.
{¶22} We affirm, but remand for resentencing. The postconviction
statutes did not confer upon the common pleas court jurisdiction to entertain
Smith’s claims. Therefore, his postconviction motions were subject to dismissal. See
R.C. 2953.21(C) and 2953.23(A). Accordingly, upon the authority of App.R.
12(A)(1)(a), we modify the judgment appealed from to reflect the dismissal of the
motions, and we affirm the judgment as modified.
{¶23} But Smith’s sentences are void to the extent that he was not adequately
notified concerning postrelease control. We, therefore, remand this case for
correction of the offending portions of his sentences in accordance with the law and
this opinion.
Judgment accordingly.
HENDON, P.J., CUNNINGHAM and FISCHER, JJ.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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