State v. Clark ( 2013 )

[Cite as State v. Clark, 2013-Ohio-299.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2012 CA 16
v. : T.C. NO. 00CR189
DON A. CLARK : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 1st day of February , 2013.
..........
LISA M. FANNIN, Atty. Reg. No. 0082337, Prosecutor’s Office, 50 E. Columbia Street,
P.O. Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
MELISSA M. PRENDERGAST, Atty. Reg. No. 0075482, 250 E. Broad Street, Suite 1400,
Columbus, Ohio 43215
Attorney for Defendant-Appellant
..........
FROELICH, J.
{¶ 1} Don A. Clark appeals from the trial court’s denial of his motion to
vacate a void sentence.
[Cite as State v. Clark, 2013-Ohio-299.]
{¶ 2} In his sole assignment of error, Clark contends the trial court erred in
denying the motion, which addressed the post-release control portion of his sentence. Clark
claims the trial court erroneously imposed post-release control because its sentencing entry
failed to recite the consequences of a post-release control violation. He asserts that this
omission rendered the post-release control portion of his sentence void. Finally, Clark
argues that the trial court cannot now correct the error because he has been released from
prison.
I. Facts and Course of Proceeding
{¶ 3} The pertinent facts are undisputed. Clark was convicted of aggravated
burglary with a deadly-weapon specification in 2000. The trial court imposed a sentence of
three years in prison for a “gun specification,” to be served prior to and consecutively to an
eight-year sentence for the aggravated burglary. Thus, the total prison sentence was eleven
years. The sentencing entry advised Clark that post-release control was mandatory for “up
to a maximum of three years.”
{¶ 4} On September 1, 2010, the trial court held a resentencing hearing. The
court began by noting that the original sentencing entry was void because of improper
post-release control, and that sentencing would occur de novo. The court further noted that
it could not properly impose a three-year prison sentence for the firearm specification,
because the indictment failed to state that the deadly weapon was a firearm. Because the
maximum sentence for the aggravated burglary was ten years, the trial court decided to
impose the maximum term for that offense, while giving Clark credit for the time he had
already served – a period of ten years and almost six months (from March 25, 2000 to
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September 1, 2010).
{¶ 5} The trial court correctly advised Clark at the resentencing hearing that a
five-year period of post-release control was mandatory. Transcript of Resentencing
Hearing, p. 7. The trial court also correctly advised Clark about the potential consequences
of violating the terms of his post-release control, including the specific amount of additional
prison time Clark faced. Id. at 7-8. Specifically, the court stated as follows:
Defendant’s notified that post release control is mandatory in this case for a
period of five years. Violation of any rule of the Parole Authority while on post
release control could result in more restrictive sanctions, including going back to
prison for up to one half the time imposed by the Court but not to exceed more than 9
months on any one violation.
If he commits a felony while on post release control, he could go back to
prison for at least one year and up to the amount of time remaining on post release
control if it’s greater than a year. And that sentence would have to be served
consecutive to any sentence on the new felony. He’s ordered to pay the costs of
prosecution and the court costs in this case. Id.
{¶ 6} At the end of the resentencing hearing, the trial court asked Clark if he had
already signed up for post-release control at the prison, and Clark said that he had not. The
court also asked Clark if he had personal items remaining at the prison, and Clark said yes.
The court noted that the easiest thing to do would be to transport Clark back to the prison to
get his personal items and to get signed up for post-release control, because the court had
previously encountered difficulties in a similar situation.
[Cite as State v. Clark, 2013-Ohio-299.]
{¶ 7} The trial court filed its sentencing entry on September 2, 2010, the day after
the sentencing hearing. Regarding post-release control, the entry stated that:
The Court has further notified the defendant that post release control
is mandatory in this case for a period of five years, as well as the
consequences for violating conditions of post release control imposed by the
Parole Board under Revised Code Section 2967.28. The defendant is ordered
to serve as part of this sentence any term of post release control imposed by
the Parole Board, and any prison term for violation of that post release
control. Doc. #32, p. 1.
{¶ 8} Clark did not appeal from the judgment entry filed on September 2, 2010.
The record does not clearly indicate when Clark was released from prison, but Clark states in
his brief that he was released on September 2, 2010, and the State has not disagreed. After
being placed on post-release control, Clark filed a motion in July 2011, seeking to vacate a
“void” sentence. Doc. #37. In the motion, Clark contended that the trial court was
required to state whether post-release control is mandatory, and was also required to state the
precise terms of post-release control in both the sentencing hearing and in the sentencing
entry. Although the sentencing entry imposed five years of mandatory post-release control
and stated that Clark had been advised about the “consequences for violating conditions of
post release control imposed by the Parole Board under Revised Code Section 2967.28,”
Clark maintained that the entry was deficient because it failed to specify the amount of
prison time he faced for a violation. Clark argued that the sentencing entry was void,
because it failed to include this mandatory notification. Further, Clark contended that the
trial court could no longer hold a sentencing hearing to correct the error, because Clark had
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already been released from prison.
{¶ 9} The trial court overruled Clark’s motion, without explanation, in a short
entry filed on February 9, 2012. Doc. #40. This appeal followed.
II. Did the Trial Court Err in Failing to Include the Terms of
Post-Release Control and to Set Forth the
Consequences for Violating Post-Release Control Conditions in the Entry?
{¶ 10} Clark’s assignment of error raises two issues for review: (1) whether the
trial court’s most recent sentencing entry was required to specify the precise consequences of
violating post-release control; and (2) if so, what effect the omission has on Clark’s
post-release control obligation.
{¶ 11} Our review of the difficult-to-decipher trends in this area of the law
indicates that a judgment entry need not be corrected to include the specific consequences
for violating post-release control conditions, if the trial court imposes a lawful sentence of
post-release control, properly notifies the defendant regarding post-release control and the
specific consequences of a violation during the sentencing hearing, and the sentencing entry
contains notification regarding the fact that post-release control is being imposed and that a
prison term could be ordered for any violation.
A. Changes in the Law Prior to the Time Clark was Resentenced
{¶ 12} In 2000, while upholding the constitutionality of R.C. 2967.28 against a
separation of powers challenge, the Ohio Supreme Court stated that “pursuant to R.C.
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2967.28(B) and (C), a trial court must inform the offender at sentencing or at the time of a
plea hearing that post-release control is part of the offender's sentence.” Woods v. Telb, 89
Ohio St.3d 504, 513, 733 N.E.2d 1103 (2000). Subsequent “clarifications” began in 2004,
when the Ohio Supreme Court noted that a trial court has a duty under R.C. 2967.28(B) and
(C) to “notify the offender at the sentencing hearing and to incorporate postrelease control
notification into its journal entry.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085,
817 N.E.2d 864, ¶ 22. In Jordan, the court observed that:
Because a trial court has a statutory duty to provide notice of postrelease
control at the sentencing hearing, any sentence imposed without such notification is
contrary to law. As a general rule, if an appellate court determines that a sentence is
clearly and convincingly contrary to law, it may remand for resentencing. See R.C.
2953.08(G)(2). * * * Furthermore, where a sentence is void because it does not
contain a statutorily mandated term, the proper remedy is, likewise, to resentence the
defendant. Id. at ¶ 23, citing State v. Beasley, 14 Ohio St.3d 74, 471 N.E.2d 774(1984).
{¶ 13} Relying on Beasley, the Ohio Supreme Court stated that “ ‘Any attempt by
a court to disregard statutory requirements when imposing a sentence renders the attempted
sentence a nullity or void.’ ” Jordan at ¶ 25. Thus, because the trial courts had failed to
notify the various defendants in Jordan of post-release control during their sentencing
hearings, but had incorporated post-release control into the sentencing entries, the Supreme
Court concluded that the sentences must be vacated and the cases must be remanded to the
trial court for resentencing. Id. at ¶ 27-29.
[Cite as State v. Clark, 2013-Ohio-299.]
{¶ 14} Subsequently, in Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126,
844 N.E.2d 301, the Ohio Supreme Court granted a petition for a writ of habeas corpus and
ordered the release of a prisoner who had violated the terms of his post-release control. At
the sentencing hearing, the trial court had incorrectly indicated that post-release control
could be imposed for a period of “up to” five years, when the term was mandatory. The
trial court also failed to incorporate imposition of post-release control into the sentencing
entry. Id. at ¶ 2.
{¶ 15} The Ohio Supreme Court rejected the Adult Parole Authority’s (APA’s)
argument that R.C. 2967.28 provided the APA with the authority and duty to impose
post-release control. The court noted that nothing in the statute authorized the APA to
exercise its authority if the trial court failed to impose post-release control in its sentence.
Id. at ¶ 18. Furthermore, according to the court, this construction avoided potential
separation of powers problems. Id. at ¶ 19. Thus, unless the trial court included
post-release control in its sentence, the APA did not have authority to impose it. Id. at ¶ 20.
{¶ 16} In deciding what remedy would be appropriate, the Ohio Supreme Court
rejected resentencing. The court noted that after-the-fact notification of the defendant, who
had served his sentence, “would circumvent the objective behind R.C. 2929.14(F) and
2967.28 to notify defendants of the imposition of postrelease control at the time of their
sentencing.” Id. at ¶ 28. The court, therefore, granted the writ of habeas corpus, as the
only appropriate remedy.
{¶ 17} In response to Hernandez, the General Assembly enacted Am.Sub.H.B.
137, which became effective as an “emergency measure” on July 11, 2006. The act
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amended R.C. 2929.19(B)(3)(c), to indicate that if a court imposes sentence on or after the
effective date of the act, the court’s failure to notify an offender that he will be supervised
under R.C. 2967.28 after he leaves prison, or to include a statement to that effect in the
judgment of conviction “does not negate, limit, or otherwise affect the mandatory period of
supervision that is required for the offender under division (B) of section 2967.28 of the
Revised Code.” R.C. 2929.19(B)(3)(c). See, also, Legislative Analysis accompanying the
Final Version of Am.Sub.H.B. No. 137, and Fiscal Note & Local Impact Statement, dated
Mary 25, 2006.
{¶ 18} As amended in 2006, R.C. 2929.19(B)(3)(e) also contained similar
provisions regarding the effect of a trial court’s failure to notify an offender or to include a
statement in the judgment of conviction about the possible prison term that can be imposed
for violations of post-release control. However this particular provision is qualified, to
some degree, because it states that the trial court’s failure does not negate the parole board’s
authority to so impose a prison term for a violation, “if, pursuant to division (D)(1) of
section 2967.28 of the Revised Code, the parole board notifies the offender prior to the
offender’s release of the board’s authority to so impose a prison term.” The amendments
also add the same basic language to R.C. 2927.28(B) and (D)(1), and to R.C. 2929.14(F).
{¶ 19} Am.Sub.H.B. No. 137 added a new section, R.C. 2929.191, which outlines
procedures to be used to correct a judgment of conviction where a trial court fails to notify
an offender about post-release supervision, or the possibility of the parole board imposing a
prison sentence for violations of supervision or post-release control.
{¶ 20} After the amendments became effective, the Ohio Supreme Court again
9
considered a habeas petition. This time, the court was asked to release twelve prisoners
who were in prison for violating post-release control. See Watkins v. Collins, 111 Ohio
St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, ¶ 1. In Watkins, the Ohio Supreme Court did
not specifically discuss the content of the sentencing hearings. However, each of the
sentencing entries contained discretionary language regarding the terms of post-release
control, when post-release control was, in fact, mandatory. Id. at ¶ 2-24, and 42. The court
distinguished its prior decisions in Woods and Jordan, because those cases had focused on
whether the prisoner had received proper notification at the sentencing hearing, not on the
content of the entry. The court stressed that “Here, while not specifying the postrelease
control as mandatory, the trial courts did at least notify the petitioners at their sentencing
hearings that they could be subject to postrelease control.” Id. at ¶ 46.
{¶ 21} The court stated that its prior decisions in Hernandez, 108 Ohio St.3d 395,
2006-Ohio-126, 844 N.E.2d 301, Gensley v. Eberlin, 110 Ohio St.3d 1474, 2006-Ohio-4474,
853 N.E.2d 313, and Adkins v. Wilson, 110 Ohio St.3d 1454, 2006-Ohio-4275, 852 N.E.2d
749, were more relevant, because the court in those cases had granted writs and had ordered
prisoners released, where the sentencing entry contained no reference to post-release control.
Watkins at ¶ 48. Nonetheless, the Ohio Supreme Court distinguished these cases as well,
stating that:
While these entries erroneously refer to discretionary instead of mandatory
postrelease control, they contain significantly more information than any of the
sentencing entries held insufficient by the court in Hernandez (no reference to
postrelease control), Adkins (no reference to postrelease control), and Gensley (vague
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reference about petitioner's understanding of possible penalties). Consequently, the
sentencing entries are sufficient to afford notice to a reasonable person that the courts
were authorizing postrelease control as part of each petitioner's sentence. A
reasonable person in the position of any of the petitioners would have had sufficient
notice that postrelease control could be imposed following the expiration of the
person's sentence. Any challenge to the propriety of the sentencing court's imposition
of postrelease control in the entries could have been raised on appeal. The same
could not be said about the sentencing entries at issue in Hernandez, Adkins, and
Gensley. Watkins at ¶ 51.
{¶ 22} Accordingly, the court denied the petitions, because the prisoners had an
adequate remedy by way of appeal. Id. at ¶ 53.
{¶ 23} One month later, the Ohio Supreme Court issued its decision in State ex rel.
Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263. Cruzado
involved an action for a writ of prohibition that asked the Ohio Supreme Court to vacate an
entry resentencing a criminal defendant. Id. at ¶ 1. The defendant was originally sentenced
in 2003, and was notified about post-release control and the penalty for violations both in the
plea agreement and at the sentencing hearing. He was incorrectly told, however, that he
would be subject to a five-year term, when he was only subject to three years of post-release
control. Id. at ¶ 7. Before the defendant’s sentence expired, the trial court held a
resentencing hearing, at which the defendant was informed of the mandatory three-year term
and the possible penalties for violation. The judge also filed a judgment entry reflecting
these facts. Id. at ¶ 10-11.
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{¶ 24} The Ohio Supreme Court noted that trial courts cannot reconsider their own
valid judgments in criminal cases, subject to two exceptions – (1) trial courts can correct
void sentences; and (2) they can also correct clerical errors in judgments, but the correction
is limited to “ ‘ “reflecting what the court actually decided, not what the court might or
should have decided.” ’ ” (Citations omitted.) Id. at ¶ 19.
{¶ 25} The Ohio Supreme Court concluded that the error fell within the first
exception, because the 2003 sentencing entry did not include the three-year post-release term
required by statute. In this regard, the court again discussed voidness, stating that:
“Any attempt by a court to disregard statutory requirements when imposing a
sentence renders the attempted sentence a nullity or void.” Beasley, 14 Ohio St.3d
at 75, 14 OBR 511, 471 N.E.2d 774. “[W]here a sentence is void because it does not
contain a statutorily mandated term, the proper remedy is * * * to resentence the
defendant.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864,
¶ 23. Cruzado at ¶ 20.
{¶ 26} The Ohio Supreme Court distinguished Hernandez, because the trial judge
had advised Cruzado at both the plea and sentencing hearing that he would be subject to
mandatory post-release control. Consequently, the trial court had provided “some notice”
that Cruzado would be subject to a multi-year term of control. Id. at ¶ 26. Furthermore,
in contrast to the petitioner in Hernandez, Cruzado’s sentence had not yet expired when he
was resentenced, and the trial court “was authorized to correct the invalid sentence.” Id. at
¶ 28. Accordingly, the trial court had jurisdiction, and the defendant had an adequate
remedy by appealing from the resentencing. Id. at ¶ 32.
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{¶ 27} In July 2007, the Supreme Court of Ohio considered a case in which the
trial court failed to properly inform the defendant about post-release control at his sentencing
hearing, but allowed for post-release control in the sentencing entry. State v. Bezak, 114
Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 3. By the time the direct appeal from
the conviction and sentence reached the Ohio Supreme Court, the defendant had already
served his prison term. Relying on Jordan, the Ohio Supreme Court held that the sentence
was void and must be vacated, and the matter must be remanded for resentencing. Id. at
¶ 12-13 and 16. The court stressed that
“The effect of determining that a judgment is void is well established. It is as
though such proceedings had never occurred; the judgment is a mere nullity and the
parties are in the same position as if there had been no judgment.” Id. at ¶ 12,
quoting from Romito v. Maxwell, 10 Ohio St.2d 266, 267-268, 227 N.E.2d 223(1967).
{¶ 28} However, because the defendant had already served his term, the court held
that he could not be subject to resentencing to correct the failure to impose post-release
control. The trial court was instructed to note this fact on the record. Id. at ¶ 18.
{¶ 29} The Ohio Supreme Court continued to apply the voidness doctrine in
subsequent cases. See State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d
568, ¶ 20-24 (defendant was informed of post-release control, but entry did not impose it.
Defendant could be resentenced, because the sentence is void and he was still in prison), and
State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 27-28
(resentencing does not offend the Double Jeopardy or Due Process clauses. Jeopardy does
13
not attach to a void sentence, and there is no reasonable, legitimate expectation of finality in
a void sentence).
{¶ 30} In Bloomer, the Ohio Supreme Court also considered and rejected a
separation of powers challenge to R.C. 2929.191, based on the defendant’s failure to identify
any existing rule of criminal procedure that conflicted with the statute. Id. at ¶ 39-43.
And, in the case of one of the three defendants in Bloomer, the trial court failed to state the
length of post-release control at the sentencing hearing and in the sentencing entry. Because
the defendant had completed his prison term and had been released, the court held that he
could not be resentenced. Id. at ¶ 69-70.
{¶ 31} In Bloomer, the Ohio Supreme Court did briefly consider the amendment to
R.C. 2929.14(F), which as noted, indicates that failure to include a post-release control
requirement in the sentence does not affect the mandatory period of control that is required
for the offender under R.C. 2967.28(B). The court limited its analysis to observing that
nothing in division (F) provides that the executive branch could impose post-release control
if the sentencing court has not ordered it. Id. at ¶ 72.
{¶ 32} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d
958, the Ohio Supreme Court considered the application of R.C. 2929.191, which provides a
statutory mechanism for correcting sentences that fail to comply with statutory requirements
for imposing post-release control. The court concluded that the statute could not apply to
sentences imposed before its effective date. In this regard, the court observed that:
We recognize the General Assembly's authority to alter our caselaw's characterization
of a sentence lacking postrelease control as a nullity and to provide a mechanism to
14
correct the procedural defect by adding postrelease control at any time before the
defendant is released from prison. However, for sentences imposed prior to the
effective date of the statute, there is no existing judgment for a sentencing court to
correct. H.B. 137 cannot retrospectively alter the character of sentencing entries
issued prior to its effective date that were nullities at their inception, in order to
render them valid judgments subject to correction. Therefore, for criminal sentences
imposed prior to July 11, 2006, in which a trial court failed to properly impose
postrelease control, the de novo sentencing procedure detailed in decisions of the
Supreme Court of Ohio should be followed to properly sentence an offender. Id. at
¶ 26.
{¶ 33} The court further concluded that “[f]or criminal sentences imposed on and
after July 11, 2006, in which a trial court failed to properly impose postrelease control, trial
courts shall apply the procedures set forth in R.C. 2929.191.” Id. at paragraph two of the
syllabus. Three members of the court dissented from the second paragraph of the syllabus,
contending that the question of whether R.C. 2929.191 is prospective was not before the
court, because the only defendant in the case had been sentenced long before the statute was
enacted. Id. at ¶ 38 (Pfeifer, J., concurring in part and dissenting in part, and joined by
Justices Moyer and O’Connor.)
{¶ 34} The three dissenting justices also argued that R.C. 2929.191 was clear and
limited its own application to sentences imposed prior to the effective date of the act. Id. at
¶ 39-48. They also remarked that R.C. 2929.191 was enacted “to fix sentencing mistakes of
the past – mistakes that gained practical relevance only after” the court’s decisions in Jordan
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and Hernandez. Id. at ¶ 48. Finally, the dissent noted that:
Amendments made to other statutes amended by Am.Sub.H.B. No. 137,
Baldwin's Ohio Legislative Service Annotated (Vol. 4, 2006) L–1911 (“H.B. 137”),
make it clear that R.C. 2929.191 was intended to address past mistakes. The intent of
H.B. 137 was to make prospective postrelease-control sentencing errors basically
irrelevant. For example, R.C. 2929.14(F)(1) was amended by H.B. 137 to include
this language:
“If a court imposes a sentence including a prison term of a type described in
this division on or after the effective date of this amendment, the failure of a court to
include a post-release control requirement in the sentence pursuant to this division
does not negate, limit, or otherwise affect the mandatory period of post-release
control that is required for the offender under division (B) of section 2967.28 of the
Revised Code.”
The amendment to R.C. 2929.14(F)(1) then adds that R.C. 2929.191 applies
to sentences imposed prior to the effective date of the act:
“Section 2929.191 of the Revised Code applies if, prior to the effective date
of this amendment, a court imposed a sentence including a prison term of a type
described in this division and failed to include in the sentence pursuant to this
division a statement regarding post-release control.” H.B. 137, L–1929.
H.B. 137 similarly amended R.C. 2929.19(B) and 2967.28(B). All of these
amendments attempt to make prospective mistakes nonproblematic and employ R.C.
2929.191 to address past errors. For the General Assembly, the prospective
16
application of R.C. 2929.191 was never a consideration. Singleton, 124 Ohio St.3d
173, 2009-Ohio-6434, 920 N.E.2d 958, at ¶ 49-53 (Pfeiffer, J., concurring in part and
dissenting in part).
{¶ 35} Thus, at least in the minority view, the amendments in Am.Sub.H.B. No.
137 were intended to make post-July 11, 2006 sentencing errors “basically irrelevant.”
Notably, the majority opinion did not address this point.
{¶ 36} Subsequently, in State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831,
935 N.E.2d 9, the Ohio Supreme Court considered the validity of a nunc pro tunc entry
which was used to correct errors that had occurred when a three-judge panel resentenced a
defendant for non-capital offenses. Id. at ¶ 65. The court noted that R.C. 2929.191 applied
because the resentencing hearing occurred after July 11, 2006. Id. at ¶ 69.
{¶ 37} The Ohio Supreme Court concluded that the nunc pro tunc entry was
ineffective because there was no indication in the record that a hearing, as required by R.C.
2929.191(C), had been conducted. Id. at ¶ 76. The court also discussed several errors that
occurred in notifying the defendant of post-release control – two took place at the
resentencing hearing, and two were contained in the nunc pro tunc entry. Id. at ¶ 78. In
this regard, the court stressed that:
Viewed cumulatively, these errors on the part of the trial court cannot be considered
harmless. We have stated that “the court must conduct proceedings in capital cases
with a strict level of care that comports with their unique status.” State v.
Clinkscale, 122 Ohio St.3d 351, 2009-Ohio-2746, 911 N.E.2d 862, ¶ 23.
Accordingly, while the dissent is correct that it is highly unlikely that Ketterer will
17
ever be subject to postrelease control, trial courts in capital cases must scrupulously
comply with the applicable statutes and rules, even those involving postrelease
control. Id.{¶ 38} One of the errors involved the content of the nunc pro tunc entry.
Concerning this matter, the court noted:
The nunc pro tunc entry contains another error, which Ketterer does not raise.
The nunc pro tunc entry does not state that Ketterer was informed that if he violated
his supervision or a condition of postrelease control, the parole board could impose a
maximum prison term of up to one-half of the prison term originally imposed, which
here is an aggregate 11 years. See R.C. 2929.19(B)(3)(e). Ketterer was correctly
advised of this condition of postrelease control during the resentencing hearing.
However, the nunc pro tunc entry incorrectly states, “The defendant is ordered to
serve as part of this sentence any term of post release control imposed by the Parole
Board, and any prison term for violation of that post release control.” Thus, the
nunc pro tunc entry should be amended to incorporate the correct language of this
rule. See R.C. 2929.191(B)(1). Ketterer at ¶ 77.
{¶ 39} Based on the Supreme Court decisions up to this date (August 2010),
several conclusions could be reached:
{¶ 40} (1) De novo sentencing procedures apply to sentences imposed before July
11, 2006, because the failure to notify a defendant of the imposition of post-release control
renders the sentence void, and the sentence is null, as if it had never occurred; (2) R.C.
2929.191 applies to sentences imposed after July 11, 2006, and a hearing is required; (3)
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The legislature attempted to make post-release control errors irrelevant when it enacted
Am.Sub.H.B. 137; (4) Courts should include provisions in their sentencing entries that
specifically discuss the imposition of prison terms for violating post-release control, but it is
possible that the failure to include such a term in a non-capital case is subject to a harmless
error analysis, meaning that if the trial court properly instructs the defendant at the
sentencing hearing as to the imposition of post-release control and the penalties for violating
it, no harm has been done; (5) If the defendant has been released from prison without having
been notified of post-release control, he cannot be resentenced. However, the cases in
which this has occurred are those where the court failed to notify the defendant at the
sentencing hearing that post-release control was being imposed. Where the defendant
received some notice, even if not totally accurate, habeas or prohibition, at least, will not be
used to rectify the situation, because the defendant had an adequate remedy at law by way of
appealing the sentence.
{¶ 41} Clark was resentenced in September 1, 2010. Under the existing law, his
sentence was void and he was subject to the de novo sentencing provisions that had been
outlined by the Ohio Supreme Court. R.C. 2929.191 would not apply to the resentencing,
because Clark was originally sentenced prior to July 11, 2006. At the hearing, the trial
court applied complete de novo sentencing by dismissing one count (the three-year firearm
specification), increasing the sentence for the remaining count from eight years to ten years,
and imposing post-release control. The court properly notified Clark about post-release
control and the penalties for violations during the sentencing hearing, but the sentencing
entry fails to incorporate the specific terms of the penalties for violating post-release control.
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{¶ 42} Under the applicable law at that time, Clark’s sentence, if challenged
further, was a new sentence, imposed after July 11, 2006, and any corrections to that
sentence would be governed by R.C. 2929.191. If the amendments to the statutes control
and do not violate some constitutional provision like due process (which has not been
raised), the failure to put specific language about the violation in the sentencing entry would
be irrelevant. Similarly, if a “harmless error” analysis potentially applies, no harm has been
done, because Clark was properly notified of the imposition of post-release control and the
penalties for a violation during the sentencing hearing, and he could have appealed from that
judgment. The law has continued to evolve, however, casting doubt on these conclusions.
B. Changes in the Law After Clark was Resentenced
{¶ 43} After Clark was resentenced, the Ohio Supreme Court issued its decision in
State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. The court noted that
its statements of law about void and voidable judgments had “sparked a recurrent and
increasingly divisive debate in our case law on sentences that fail to properly impose
postrelease control in accordance with the terms mandated by the General Assembly.” Id.
at ¶ 6. The Ohio Supreme Court insisted on retaining the voidness concept, but also relied
on the related concept of the “illegal sentence doctrine” to hold that “when a judge fails to
impose statutorily mandated postrelease control as part of a defendant's sentence, that part of
the sentence is void and must be set aside.” Id. at ¶ 26. However, res judicata applies to
the other aspects of the merits of the conviction, and the scope of the appeal from
20
resentencing in which “a mandatory term of post-release control is imposed is limited to
issues arising at the resentencing hearing.” Id. at ¶ 40.
{¶ 44 } Shortly after Fisher was decided, the Ohio Supreme Court issued its
decision in State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d
1010. In Womack, the trial court had imposed the proper term of post-release control at the
sentencing hearing, but had incorrectly referred to a different term in the sentencing entry.
Upon the defendant’s request for a de novo hearing, the trial court filed an entry correcting
the error, rather than holding a hearing. Id. at ¶ 3-4. The Ohio Supreme Court concluded
that a new sentencing hearing was not required, because the defendant was properly
notified at the sentencing hearing of the correct term, and the failure to include the
post-release term in the sentencing entry was “clerical.” The trial court, therefore, could use
a nunc pro tunc entry to correct the error. Id. at ¶ 14.1
{¶ 45} Another major decision in this group of cases from the Ohio Supreme Court is State
v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718. Qualls involved an
offender who had been properly notified about post-release control at his sentencing hearing
in 2002. However, the sentencing entry failed to contain language indicating that
notification was made. Id. at ¶ 1. In 2010, the trial court corrected the omission using a
nunc pro tunc entry and denied the defendant’s request for a de novo sentencing hearing.
Id.
{¶ 46} Relying on Womack, the Ohio Supreme Court held that no new sentencing hearing
was required and that the mistake could be corrected using a nunc pro tunc entry. The court
1
Womack was a pre-July 11, 2006 case, so R.C. 2929.191 did not apply.
21
reasoned that notification was properly given in the sentencing hearing and the error in the
sentencing entry was “merely clerical in nature.” Id. at ¶ 14. The court further noted that
the nunc pro tunc entry related back to the original sentencing entry and did not extend the
time to file an appeal. Id.
{¶ 47} In discussing the issues, the court noted two important principles in its post-release
control precedents. The first was that “unless a sentencing entry that did not include
notification of the imposition of postrelease control is corrected before the defendant
completed the prison term for the offense for which postrelease control was to be imposed,
postrelease control cannot be imposed.” Id. at ¶ 16. The court concluded that this
principle was not at issue due to the lengthy term the defendant was serving. Thus, even if
the court reversed and remanded for a new sentencing hearing, the trial court would still be
able to timely issue the new sentencing entry. Id. at ¶ 17.
{¶ 48} The second principle was the importance of notification. In this regard, the court
stressed that its main focus in interpreting the sentencing statutes on post-release control
“has always been on the notification itself and not the sentencing entry.” Qualls at ¶ 19.
The court distinguished its prior decisions in Jordan and Singleton because “notification of
postrelease control was not proper in either of those cases.” (Emphasis sic.) Id. at ¶ 21.
In addition, the court distinguished many of its other post-release control precedents by
stating that:
In no previous case in which a sentencing entry was silent as to postrelease control
have we specifically considered the significance of proper postrelease-control
notification at the sentencing hearing. Moreover, we have not specifically evaluated
22
the efficacy of a trial court's use of a nunc pro tunc entry to correct a deficient
sentencing entry when the sole error in imposing postrelease control was the failure
to incorporate the notification that was given at the sentencing hearing into the entry
of conviction. Id.
{¶ 49} The court went on to note that:
Here, where notification was properly given at the sentencing hearing, there is
no substantive prejudice to a defendant if the sentencing entry's failure to mention
postrelease control is remedied through a nunc pro tunc entry. Our precedents
requiring a new sentencing hearing (either de novo or limited) to correctly impose
postrelease control do not apply to this situation. The rationale underlying those
decisions is that a sentence that does not properly impose postrelease control is void,
and a remand for a new sentencing hearing is necessary, because the trial court's
erroneous imposition of postrelease control must be corrected in a new hearing at
which the defendant is present to receive notification that complies with the statutes.
See, e.g., Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 17 and
23.
But when the notification of postrelease control was properly given at the
sentencing hearing, the essential purpose of notice has been fulfilled and there is no
need for a new sentencing hearing to remedy the flaw. The original sentencing entry
can be corrected to reflect what actually took place at the sentencing hearing, through
a nunc pro tunc entry, as long as the correction is accomplished prior to the
defendant's completion of his prison term. Qualls at ¶ 23-24.
23
{¶ 50} Finally, the court concluded – despite the fact that R.C. 2929.191(C) requires
hearings – that its decision “by its nature applies to those postrelease-control cases involving
an omission of the type that occurred here, without regard to whether the sentencing hearing
was held after the effective date of R.C. 2929.191 or held prior to the effective date of that
statute * * *.” Id. at ¶ 29.
{¶ 51} In view of the Supreme Court’s comments in Qualls, we could conclude that the
sentencing entry in the case before us could have been corrected by nunc pro tunc entry
before Clark was released from prison, because Clark was properly informed at the
sentencing hearing about the imposition of post-release control and the penalties for
violations. We could then also conclude that the entry could not be corrected at this point,
and that Clark is not subject to post-release control, because he has already been released
from prison. However, several factors undermine that analysis.
{¶ 52} First, at ¶ 16 of its opinion in Qualls, the Ohio Supreme Court referred to both
Hernandez, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, and Watkins, 111 Ohio
St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78. The court observed that in Hernandez, the
defendant had received no notification about post-release control, and post-release control
could not be imposed after he had completed his prison term. Qualls, 131 Ohio St.3d 499,
2012-Ohio-1111, 967 N.E.2d 718, ¶ 16. However, the court then invited a comparison
between Hernandez and Watkins, noting that in Watkins, “when a sentencing entry made
some reference to postrelease control, any deficiencies in the entry could have been raised on
appeal, and postrelease control can be imposed upon the defendant's release from prison.”
Id.24
{¶ 53} As was noted, Watkins involved a number of violators who sought to be
released from prison because they had not been properly sentenced to post-release control.
Their sentencing entries indicated that post-release control was discretionary rather than
mandatory. Watkins at ¶ 46 and 51. Several sentencing entries in Watkins are also similar
to the entry in the case before us, in that they do not refer to specific terms that could be
imposed for violations of post-release control. Instead, the entries refer to the fact that the
defendant was subject to the consequences of violating post-release control under R.C.
2967.28, and that the defendant was ordered to serve any prison term imposed for the
violation. See, id., at ¶ 3, 9, 13, 14, 15, and 24. Again, the Supreme Court noted in
Watkins that:
[T]he sentencing entries are sufficient to afford notice to a reasonable person that the
courts were authorizing postrelease control as part of each petitioner's sentence. A
reasonable person in the position of any of the petitioners would have had sufficient
notice that postrelease control could be imposed following the expiration of the
person's sentence. Any challenge to the propriety of the sentencing court's
imposition of postrelease control in the entries could have been raised on appeal.
The same could not be said about the sentencing entries at issue in Hernandez,
Adkins, and Gensley. Watkins at ¶ 51.
{¶ 54} Without explicitly abandoning the voidness doctrine or directly acknowledging a
departure, the Ohio Supreme Court nonetheless seems to suggest in Qualls that if proper
notification of post-release control is given during the sentencing hearing, and if some form
of post-release control is imposed in the sentencing entry, the defendant is on notice that
25
post-release control will be imposed following release from prison. Post-release control
can, therefore, be imposed, despite technical defects in the entry. This appears to be
consistent with the view that Am.Sub.H.B. No. 137 was intended to make “prospective
mistakes nonproblematic.” Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d
958, at ¶ 49-53 (Pfeiffer, J., concurring in part and dissenting in part). Again, however, the
law has continued to evolve.
C. Post-Qualls Jurisprudence
{¶ 55} Consistent with Qualls, the Ninth District Court of Appeals in 2012 upheld
imposition of post-release control despite technical deficiencies in the sentencing entry. See
State v. Lynch, 9th Dist. Lorain No. 11CA010031, 2012-Ohio-2975.2
{¶ 56} The defendant in Lynch was originally sentenced in 2002, and a
resentencing hearing was held in 2008, to address the defendant’s claim that the trial court
had failed to properly impose post-release control. Id. at ¶ 2. The defendant did not
dispute that the trial court had properly notified him of post-release control at the
resentencing hearing. Instead, he challenged the language used in the sentencing entry,
which provided that he was subject to “up to a maximum of five years post-release control.”
Id. at ¶ 2 and 10. Unlike Clark, the defendant in Lynch did file an appeal from the
resentencing. After that appeal was unsuccessful, the defendant served the rest of his prison
sentence and then filed a motion to terminate post-release control, contending that the
control had not been properly imposed. Id. at ¶ 3. The trial court denied the motion, and
2
Subsequently overruled, see ¶ 64, infra.
26
the defendant appealed.
{¶ 57} The Ninth District Court of Appeals discussed Qualls, and noted that “[t]he
issue of whether postrelease control that was improperly imposed in a sentencing entry could
be imposed after an offender's release from prison was not directly implicated in Qualls.”
Id. at ¶ 12. Nonetheless, the Ninth District Court of Appeals concluded that the Ohio
Supreme Court had discussed the issue, and had distinguished between “sentencing entries
that made no reference to postrelease control and those that incorrectly set forth the terms of
post-release control.” Id., referring to the distinction in Qualls at ¶ 16, between Hernandez,
108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, and Watkins, 111 Ohio St.3d 425,
2006-Ohio-5082, 857 N.E.2d 78. Based on the case’s similarity to Watkins, the Ninth
District Court of Appeals concluded that the sentencing entry “contained sufficient language
to authorize the Adult Parole Authority to exercise post-release control over the defendant.”
Id. at ¶ 14. Accordingly, the court affirmed the denial of the defendant’s motion to
terminate post-release control. Id. at ¶ 15.
{¶ 58} Other districts have also taken a flexible approach to errors in post-release
control entries. For example, in State v. Bartee, 8th Dist. Cuyahoga No. 97411,
2012-Ohio-3944, post-release control was mandatory, but the trial court used the phrase “if
postrelease control is imposed” in the entry. Id. at ¶ 17. The Eighth District Court of
Appeals considered the use of the word “if” to be a case of “form over substance” not
requiring a new sentencing hearing, where notification of post-release control was properly
given at the sentencing hearing. Id. at ¶ 18, citing State v. Harris, 4th Dist. Pickaway No.
11CA15, 2012-Ohio-2185, and Qualls, 131 Ohio St.3d 499, 2010-Ohio-1111, 967 N.E.2d
27718. Notably, the Eighth District Court of Appeals did not even direct the filing of a nunc
pro tunc entry to correct the alleged error, presumably because the court concluded that no
error existed, or that if error existed, it was harmless. Id.{¶ 59} We also note that since September 2010, the Tenth District Court of
Appeals has followed an approach that purports to apply Ohio Supreme Court precedent and
concludes that “the trial court sufficiently fulfilled its statutory obligations when its oral and
written notifications, taken as a whole, properly informed the defendant of post-release
control.” State v. Boone, 2012-Ohio-3653, 975 N.E.2d 546, ¶ 18 (10th Dist.), citing State v.
Mays, 10th Dist. Franklin No. 10AP-113, 2010-Ohio-4609, appeal not allowed, 127 Ohio
St.3d 1535, 2011-Ohio-376, 940 N.E.2d 987, and State v. Townsend, 10th Dist. Franklin No.
10AP–983, 2011-Ohio-5056. The Tenth District Court of Appeals describes this as a
“ ‘totality of the circumstances’ ” test, which considers a combination of: (1) judgment
entries that alone may be insufficient to properly impose post-release control; (2) other
documents in the record like plea agreements; and (3) sentencing hearing transcripts.
Boone at ¶ 25.
{¶ 60} Boone was decided after the Ohio Supreme Court issued the decision in
Qualls. In Boone, the defendant had been originally sentenced in 1997, and was told at the
sentencing hearing that he was subject to a period of post-release control of “up to” five
years. He was also told of the consequences of a violation. The “Prison Imposed” notice
the defendant signed at the hearing did not specify whether the period was discretionary or
mandatory, but did spell out the mandatory nature of the term in a “note” at the bottom of the
page. Id. at ¶ 3-4. The notice also warned of the specific consequences for violations. Id.
28
In its judgment entry, the trial court simply recited that the defendant had been notified
orally and in writing of the applicable periods of post-release control. Id. at ¶ 5.
Subsequently, the trial court twice overruled the defendant’s motions for resentencing,
stating that the sentence would be modified, if required, prior to his release. Id. at ¶ 6-7.
{¶ 61} After discussing various cases applying the “totality of the circumstances”
test, the Tenth District Court of Appeals noted the statement in Qualls that the Ohio
Supreme Court’s “ ‘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 ¶
22, quoting from Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 19.
{¶ 62} Ultimately, the Tenth District concluded that the defendant had been
properly notified under the totality of the circumstances. Furthermore, although the trial
court had mistakenly informed the defendant that his term of post-release control was “up to
five years,” when the correct figure was three years mandatory, the court held that “the
mistake did not render the judgment void.” Id. at ¶ 28. In this regard, the court noted that:
[E]ven though the phrase “up to” has “discretionary” connotations, mistaken use of
such language does not render defendant's post-release control notification void. * *
* Thus, a sentencing entry incorporating post-release control as part of the sentence,
but mistakenly including “up to” language, is [a] “non-jurisdictional” defect and
concerns, “at most, voidable error that should be raised on direct appeal.” Id. at ¶
30.
{¶ 63} The Tenth District Court of Appeals thus concluded that the appropriate
remedy was for the defendant to challenge the sentence on direct appeal from his original
29
conviction, and since he had not done so, he was barred from raising the claims by res
judicata. Id. at ¶ 34.
{¶ 64} Very recently, the Supreme Court reversed Lynch. See Lynch, No.
2012-1361, 2012-Ohio-5730 (Dec. 6, 2012), at ¶ 1. This was based on State v. Billiter,
No. 2011-1501, 2012-Ohio-5144 (Nov. 7, 2012), which held that a defendant is not barred
by principles of res judicata from collaterally attacking his sentence (and a subsequent
conviction for escape based on the void post-release control portion of the original case), if
a trial court improperly sentences a defendant to a term of post-release control. Id. at ¶ 1.
Thus, we assume that portion of Boone concerning res judicata was also overruled, albeit sub
silentio.
{¶ 65} Billiter involved a defendant who had originally been sentenced in 1998 to
“up to” a maximum of post-release control rather than the five years required by R.C.
2967.28(B). 2012-Ohio-5144, at ¶ 2. The defendant, Billiter, did not appeal that sentence,
and was released from prison in 2001. After being released, Billiter was placed on
post-release control and complied with the terms for nearly three years, when he was
indicted on a charge of escape from his post-release control detention. Id. at ¶ 3 and 12.
After pleading guilty to this charge, Billiter was placed on community control. He did not
appeal this sentence. Id. at ¶ 3. Billiter almost immediately violated the terms of his
community control. His community control was then revoked, and he was sentenced to six
years in prison on the escape charge. Billiter again did not appeal. Id. at ¶ 4.
{¶ 66} Almost four years later, Billiter filed a pro se motion to vacate his
conviction on the escape charge, alleging that the post-release control portion of his 1998
30
sentence was void and that, accordingly, he was innocent of the escape charge. Id. at ¶ 5.
The motion was denied, and the Fifth District Court of Appeals affirmed the denial. Billiter
did not appeal to the Ohio Supreme Court for discretionary jurisdiction. Id. Subsequently,
in 2010, Billiter filed a second motion, this time through counsel, and again argued that he
had never legally been placed on post-release control. This motion was also denied, and the
Fifth District Court of Appeals affirmed and certified a conflict. Id. at ¶ 6.
{¶ 67} In a four-to-three decision, Billiter concluded that:
[T]he trial court failed to sentence Billiter to a correct term of postrelease
control. Accordingly, his sentence was void. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus. The trial court's
incorrect sentence for postrelease control in 1998 was insufficient to confer authority
upon the Adult Parole Authority to impose up to three years of postrelease control on
Billiter. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 17.
Although the Adult Parole Authority actually did place Billiter under supervision, see
R.C. 2921.01(E), and Billiter did violate the terms of that postrelease control in
violation of R.C. 2921.34(A)(1), Billiter's escape conviction was based on an invalid
sentence. Accordingly, the trial court was without jurisdiction to convict him on the
escape charge. Billiter, 2012-Ohio-5144, at ¶ 12.
{¶ 68} In its decision, the court did not discuss Qualls or other prior potentially
conflicting opinions. Instead, the majority noted that:
As we have consistently stated, if a trial court imposes a sentence that is
unauthorized by law, the sentence is void. “ ‘The effect of determining that a
31
judgment is void is well established. It is as though such proceedings had never
occurred; the judgment is a mere nullity and the parties are in the same position as if
there had been no judgment.’ ” Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868
N.E.2d 961, ¶ 12, quoting Romito v. Maxwell, 10 Ohio St.2d 266, 267–268, 227
N.E.2d 223 (1967). ( Bezak was later modified by State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph two of the syllabus.) We said in
Fischer that a void postrelease-control sentence “is not precluded from appellate
review by principles of res judicata, and may be reviewed at any time, on direct
appeal or collateral attack.” Id. at paragraph one of the syllabus.
Fischer applies to every criminal conviction, including a collateral attack on a
void sentence that later results in a guilty plea to the crime of escape. Billiter at
¶10-11.
{¶ 69} Two members of the dissent commented on the “quagmire created in the
void/voidable line of cases.” Id. at ¶ 15. Among other things, the dissent noted that
“commentators have begun questioning this court's jurisprudence in the area,” and observed
that:
[D]espite the majority's statement that its decision is consistent with previous cases,
recent history has shown that the court has been anything but clear and consistent in
its postrelease-control cases, in which it has followed various lines of reasoning only
to change or reverse course when the consequences of this reasoning become
unworkable. Id. at ¶ 20.
{¶ 70} Another dissenting justice focused on the fact that the trial court did, in fact,
32
impose post-release control, even though the time imposed was less than required by
statute. Id. at ¶ 33. This dissent stressed that the defendant had received notice, “both at
the sentencing hearing and in the sentencing entry, that he would be supervised by the Adult
Parole Authority for up to three years after his release from prison.” Id. at ¶ 34.
{¶ 71} In Jordan, the court had not notified the defendant of post-release control at
the sentencing hearing. In Hernandez, Billiter, Boone, and Lynch, the courts had imposed
an unlawful sentence. When the courts imposed the wrong term of post-release control,
they “fail[ed] to impose statutorily mandated postrelease control as part of a defendant’s
sentence.” Fisher, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 26. In
Qualls, the trial court had imposed the correct post-release control, but did not indicate in the
sentencing entry that the notification had been made.
{¶ 72} In Clark’s situation, the trial court imposed the correct lawful term of
post-release control and informed him of the correct specific penalties for violating
post-release control. In the sentencing entry, the court again imposed the proper lawful
term of post release control and ordered the defendant to serve any post-release control
ordered by the Parole Board and any prison term for violation of that post-release control.
{¶ 73} The sentencing entry was “sufficient to afford notice to a reasonable person
that the courts were authorizing postrelease control.” Watkins, 111 Ohio St.3d 425,
2006-Ohio-5082, 857 N.E.2d 78, at ¶ 51. We do not dispute Billiter’s holding that a void
sentence can be attacked at any time. We simply hold that Clark’s original sentence was not
void; there is no need for a subsequent entry, even if the appellant were still in custody.
{¶ 74} Accordingly, the assignment of error is overruled, and the judgment of the
33
trial court is Affirmed.
III. Conclusion
{¶ 75} The judgment of the trial court is Affirmed.
.............
HALL, J. and CELEBREZZE, J., concur.
(Hon. Frank D. Celebrezze, Jr., Eighth District Court of Appeals, sitting by assignment of
the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Lisa M. Fannin
Melissa M. Prendergast
Hon. Richard J. O’Neill