State Banks ( 2015 )

[Cite as State Banks, 2015-Ohio-5372.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-653
v. : (C.P.C. No. 08CR-5359)
Andre Banks, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 22, 2015
Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
appellee.
Andre Banks, pro se.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Andre Banks, appeals from a judgment of the
Franklin County Court of Common Pleas, rendered on June 16, 2015, denying his motion
for resentencing based on an allegedly void judgment. Finding no merit in Banks'
assignments of error, we affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} We have previously recounted the underlying facts in this case:
On July 1, 2007, [Banks] was driving under the influence of
alcohol and marijuana when he drove left of center and struck
another vehicle. The driver of the other vehicle was seriously
injured; the driver's husband, who was the front seat
passenger, was killed; and their two children were injured.
After the accident, [Banks'] blood was tested, revealing a
blood-alcohol concentration of .138 grams and 27.97
nanograms per milliliter of marijuana in his system.
No. 15AP-653 2
State v. Banks, 10th Dist. No. 10AP-1065, 2011-Ohio-2749, ¶ 2.
{¶ 3} Based on this conduct, on July 23, 2008, Banks was indicted for two counts
of aggravated vehicular homicide, three counts of aggravated vehicular assault, three
counts of vehicular assault, and two counts of operating a vehicle under the influence
("OVI") of alcohol or drugs. Banks pled not guilty on August 4, 2008, but in a plea
hearing on January 5, 2009, Banks entered a guilty plea to three counts of the indictment,
while the trial court dismissed the remaining counts.
{¶ 4} The trial court held a sentencing hearing on February 3, 2009 and
sentenced Banks to 8 years on the aggravated vehicular homicide count and 5 years on
each of the two aggravated vehicular assaults. It permitted Banks to serve the 5-year
sentences concurrently with each other but ordered Banks to serve the 8 years consecutive
to the 5-year sentences for a total of 13 years in prison. The trial court declined to impose
a fine but ordered Banks to pay court costs "in an amount to be determined." (Judgment
Entry, 2.) According to the sentencing entry, it also notified Banks, "orally and in writing
[that] the applicable period of post-release control is three (3) years mandatory."
(Judgment Entry, 2.) However, the notice with which Banks was provided and which
Banks signed indicates five years of post-release control, does not indicate whether it is
mandatory or discretionary, and the trial court did not explain post-release control during
the sentencing hearing. Yet the trial court did explain during the prior plea hearing on
January 5, 2009, that Banks would be subject to three years of mandatory post-release
control and the potential consequences of violating that control. In addition, Banks' plea
form indicated that Banks understood that three years of mandatory post-release control
would be imposed and explained the consequences of violations. However, the plea form
initially indicated that Banks would be subject to five-years of mandatory post-release
control but shows a pen and ink correction.
{¶ 5} Banks appealed alleging ineffective assistance of counsel and improper
remarks by the prosecutor during sentencing to the effect that Banks' driver's license was
suspended at the time of the accident. State v. Banks, 10th Dist. No. 09AP-224, 2009-
Ohio-5582, ¶ 1. On October 22, 2009, this court overruled Banks' assignments of error
and affirmed his conviction and sentence. Id. Thereafter we denied Banks' motions for
No. 15AP-653 3
reconsideration and to reopen the appeal on November 24, 2009 and March 2, 2010,
respectively.
{¶ 6} In January 2010, Banks sought postconviction relief based primarily on
allegations of improper collection of blood samples that indicated he was intoxicated at
the time of the collision and an allegation that his license was not, in fact, suspended at
the time of the collision, even though the trial court relied on that alleged fact when it
sentenced him. Banks also filed a motion to vacate his sentence based on the allegedly
improper failure to discuss post-release control during his sentencing. Finally, Banks
submitted a motion to withdraw his guilty plea based on a number of allegations: first,
that the failure to find Banks guilty of OVI (which he claimed was a "predicate offense")
rendered the plea defective; second, that the plea was involuntary because he was led to
believe that dismissal of the OVI meant that the trial court could not consider whether he
was intoxicated at the time of the accident; and third, that the trial court considered
uncharged and unproved conduct in sentencing (including whether Banks' license was
suspended).
{¶ 7} Banks also filed an original action in procedendo with this court seeking to
compel the trial judge to rule and issue findings of fact and conclusions of law regarding
his postconviction petition. On October 14, 2010, the trial court denied Banks' motion for
postconviction relief. Four days later, on October 18, 2010, the trial court denied the
remaining motions in two separate decisions. This court denied Banks a writ of
procedendo based on the trial court's rulings and the availability of a direct appeal from
those rulings. State ex rel. Banks v. Court of Common Pleas Franklin Cty., 10th Dist. No.
10AP-914, 2011-Ohio-5055. Banks separately appealed each of the trial court's rulings.
We consolidated the appeals and, on June 7, 2011, we affirmed the judgments of the trial
court. Banks, 2011-Ohio-2749, ¶ 1, 26. Banks sought reconsideration, which we denied on
September 8, 2011. Banks also moved to certify a conflict, and on November 10, 2011, we
denied that motion as well.
{¶ 8} Concurrently with Banks' activity before this court, he filed a motion on
October 24, 2011 in the trial court to modify his sentence based on the passage of H.B. No.
86 which, among other things, changed the factors a trial court was required to consider
when sentencing. On November 29, 2011, the trial court denied Banks' motion for
No. 15AP-653 4
modification. Once again, Banks appealed and, on May 24, 2012, this court once again
affirmed the trial court. State v. Banks, 10th Dist. No. 11AP-1134, 2012-Ohio-2328.
{¶ 9} On November 13, 2012, Banks sought to vacate and modify his sentence
alleging that his sentence was unlawful based on the argument that he was not found
guilty of the OVI "predicate offenses" and hence was not properly adjudicated guilty of the
other offenses to which he pled. The trial court never ruled on this motion; however, the
same argument was made and rejected in Banks' prior filings. See Banks, 2011-Ohio-
2749.
{¶ 10} On February 18, 2015, Banks again filed a motion to change his sentence,
this time entitled a motion for "re-sentencing based on void judgment." In this motion,
Banks argued that the trial court failed to notify him that failure to pay court costs could
result in him being ordered to perform community service and also that the court failed to
notify him about post-release control. On June 16, 2015, the trial court denied Banks'
motion, finding that the arguments and issues raised in this motion were raised or could
have been raised on direct appeal and thus were res judicata and law of the case. Banks
now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 11} Banks asserts three assignments of error for review:
[I.] THE TRIAL COURT ERRED AS A MATTER OF LAW,
AND ABUSED ITS DISCRETION WHEN IT REFUSED TO
RE-SENTENCE APPELLANT BANKS IN COMPLIANCE
WITH STATUTORY REQUIREMENTS PURSUANT TO R.C.
2947.23(A)(1)(a), WHEN THE TRIAL COURT FAILED TO
NOTIFY APPELLANT BANKS AT THE "SENTENCING
HEARING" DATED FEBRUARY 3rd, 2009 THAT FAILURE
OF APPELLANT BANKS, TO PAY THE COURT COSTS, IN
AN AMOUNT TO BE DETERMINED" COULD RESULT IN
THE COURT "ORDERING THE APPELLANT TO PERFORM
COMMUNITY SERVICE "UNTIL THE JUDGMENT IS PAID
OR UNTIL THE TRIAL COURT IS SATISFIED THAT THE
APPELLANT IS IN COMPLIANCE WITH THE APPROVED
SCHEDULE"
[II.] THE TRIAL COURT ERRED A MATTER OF LAW, AND
ABUSED ITS DISCRETION WHEN IT REFUSED TO RE
SENTENCE APPELLANT BANKS IN COMPLIANCE WITH
STATUTORILY MANDATED TERMS PURSUANT TO R.C.
No. 15AP-653 5
2929.19 (B)(3)(C) THROUGH (E) AND R.C. 2967.28 WHEN
THE TRIAL COURT FAILED TO COMPLY WITH
SEPARATION OF POWERS CONCERNS AND TO FULFILL
THE REQUIREMENTS OF POST RELEASE CONTROL
SENTENCING STATUTES OF ABOVE, WHEN THE TRIAL
COURT FAILED TO "NOTIFY THE APPELLANT AT
"SENTENCING" ON FEBRUARY 3rd, 2009 OF THE
PROPER NOTIFICATION OF HIS TERMS OF MANDATORY
POST-RELEASE CONTROL, AND THE CONSEQUENCES
OF VIOLATING POST-RELEASE CONTROL, AND
INCORATING [sic] THAT STATUTORILY MANDATED
TERM INTO ITS FEBRUARY 3rd JUDGMENT OF
CONVICTION ENTRY AS STATUTORY REQUIRED BY LAW
IN THE ABOVE REVISED CODES.
[III.] THE TRIAL COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE, IN VIOLATION OF THE SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTIONS, AND SECTION 10, ARTICLE I OF THE
OHIO CONSTITUTION FOR FAILING TO "OBJECT" AT
"SENTENCING" ON FEBRUARY 3rd, 2009 TO THE TRIAL
COURT'S IMPOSITION OF COURT COSTS IN AN AMOUNT
TO BE DETERMINED WHEN THE COURT FAILED TO
"NOTIFY APPELLANT BANKS, THAT HIS FAILURE TO PAY
"COURT COSTS IN AN AMOUNT TO BE DETERMINED"
COULD RESULT IN THE COURT "ORDERING" THE
APPELLANT TO PERFORM COMMUNITY SERVICE UNTIL
THE JUDGMENT IS PAID OR, UNTIL THE COURT IS
SATISFIED THAT THE APPELLANT IS IN COMPLIANCE
WITH THE APPROVED SCHEDULE.
(Sic passim.)
III. DISCUSSION
A. First and Third Assignments of Error – Whether it was Error for the
Trial Court to Have Taxed Costs in an Amount to be Determined and
Whether it was Ineffective for Defense Counsel to Have Failed to
Object
{¶ 12} The Supreme Court of Ohio has explained:
The doctrine of res judicata involves both claim preclusion
(historically called estoppel by judgment in Ohio) and issue
preclusion (traditionally known as collateral estoppel). Grava
v. Parkman Twp., 73 Ohio St. 3d 379, 381, 653 N.E.2d 226
(1995), citing Whitehead v. Gen. Tel. Co., 20 Ohio St. 2d 108,
No. 15AP-653 6
254 N.E.2d 10 (1969) and Krahn v. Kinney, 43 Ohio St. 3d
103, 107, 538 N.E.2d 1058 (1989). With regard to claim
preclusion, a final judgment or decree rendered on the merits
by a court of competent jurisdiction is a complete bar to any
subsequent action on the same claim between the same
parties or those in privity with them. Id., citing Norwood v.
McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943), paragraph
one of the syllabus, and Whitehead, paragraph one of the
syllabus. Moreover, an existing final judgment or decree
between the parties is conclusive as to all claims that were or
might have been litigated in a first lawsuit. Id. at 382, 653
N.E.2d 226, citing Natl. Amusements, Inc. v. Springdale, 53
Ohio St. 3d 60, 62, 558 N.E.2d 1178 (1990).
Brooks v. Kelly, __ Ohio St.3d __, 2015-Ohio-2805, ¶ 7; see also State v. Szefcyk, 77 Ohio
St.3d 93, 95-96 (1996); Stromberg v. Bd. of Edn. of Bratenahl, 64 Ohio St. 2d 98, 100
(1980); State ex rel. Ohio Water Serv. Co. v. Mahoning Valley Sanitary Dist., 169 Ohio
St. 31, 34-35 (1959). As distinct from claim preclusion:
"The doctrine of issue preclusion, also known as collateral
estoppel, holds that a fact or a point that was actually and
directly at issue in a previous action, and was passed upon and
determined by a court of competent jurisdiction, may not be
drawn into question in a subsequent action between the same
parties or their privies, whether the cause of action in the two
actions be identical or different."
State ex rel. Stacy v. Batavia Local Sch. Dist. Bd. of Edn., 97 Ohio St. 3d 269, 2002-Ohio-
6322, ¶ 16, quoting Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81
Ohio St. 3d 392, 395 (1998).
{¶ 13} The Supreme Court has discussed issue preclusion as generally more
limited than claim preclusion in at least one respect:
[T]he Ohio Supreme Court has held that "an absolute due
process prerequisite to the application of collateral estoppel
[claim preclusion] is that the party asserting the preclusion
must prove that the identical issue was actually litigated,
directly determined, and essential to the judgment in the prior
action."
State ex rel. Davis v. Public Emps. Retirement Bd., 174 Ohio App. 3d 135, 2007-Ohio-
6594, ¶ 31 (10th Dist.), quoting Goodson v. McDonough Power Equip., Inc., 2 Ohio St. 3d
193, 201 (1983). In other words, "[i]ssue preclusion does not apply to other matters that
No. 15AP-653 7
might have been litigated but were not." Id., quoting Taylor v. Monroe, 158 Ohio St. 266
(1952), paragraph three of the syllabus. However, in criminal cases res judicata generally
bars a defendant from litigating claims in a proceeding subsequent to the direct appeal "if
he or she raised or could have raised the issue at the trial that resulted in that judgment
of conviction or on an appeal from that judgment." (Emphasis sic.) State v. Jackson, 141
Ohio St. 3d 171, 2014-Ohio-3707, ¶ 92. Thus, res judicata as applied in criminal cases,
although it deals with "issues" diverges from narrow issue preclusion and, like claim
preclusion, also may permit preclusion of arguments or positions which could have been
(but were not actually) litigated. There are, however, also exceptions to res judicata in
criminal cases.
{¶ 14} Void sentences, for example, are subject to correction at any time
irrespective of the principles of res judicata or law of the case doctrine. State v. Fischer,
128 Ohio St. 3d 92, 2010-Ohio-6238, ¶ 27, 30 (holding that a sentence is void in part
where an offender is not properly required to be subject to a period of post-release
control); see also State v. Harris, 132 Ohio St. 3d 318, 2012-Ohio-1908, paragraph one of
the syllabus (extending Fisher to driver's license suspensions). This principle does not
apply to the improper imposition of costs, however, because, among other reasons, courts
have discretion on the imposition of costs, and costs are a civil assessment, even when
assessed within a criminal case. See State v. Joseph, 125 Ohio St. 3d 76, 2010-Ohio-954,
¶ 1, 19-21. Thus, Banks' arguments with respect to costs, even if successful, could not
show that his sentence is void, even in part. Nor are Banks' claims regarding costs the
sort of claims that rely on evidence that was not available in the record of his original trial
and which could not properly have been raised on direct appeal. See, e.g., Manigault v.
Ford Motor Co., 96 Ohio St. 3d 431, 435 (2002) ("The law prevents appellate courts from
considering evidence dehors the record."). The trial court's rulings on costs were
announced orally in the sentencing hearing and within the sentencing entry. Because the
claims regarding costs could have been raised in his direct appeal in 2009, they cannot be
raised now. Jackson at ¶ 92.
{¶ 15} Banks' first and third assignments of error are overruled.
No. 15AP-653 8
B. Second Assignment of Error – Whether the Trial Court Erred in the
Manner in Which it Imposed Post-Release Control
{¶ 16} A sentence in which an offender is not properly required to be subject to a
period of post-release control is void, and the offending portion of the sentence is subject
to correction at any time irrespective of the principles of res judicata or law of the case
doctrine.1 Fischer at ¶ 27, 30; accord State v. Billiter, 134 Ohio St. 3d 103, 2012-Ohio-
5144, ¶ 7; see also State v. Schleiger, 141 Ohio St. 3d 67, 2014-Ohio-3970, ¶ 15 (holding
that "if a court improperly imposes post-release control on a sentence imposed on or after
July 11, 2006, it may correct the sentence in accordance with the procedures set forth in
R.C. 2929.191, which provides that a court must hold a hearing before issuing the
correction. R.C. 2929.191(C)"). Thus, Banks' claim on this issue is not precluded by
principles of res judicata or law of the case if it indeed shows his sentence was void. In
addition we note that, although Banks previously raised this issue before the trial court in
his March 4, 2010 motion to vacate, this is the first time he has raised the issue in an
appeal before this court. Banks, 2011-Ohio-2749. Although Banks appealed the denial of
his March 4, 2010 motion to vacate, he did not raise an assignment of error on the topic of
post-release control. Banks, 2011-Ohio-2749, ¶ 4. Thus, not only will res judicata and the
law of the case doctrine not protect the judgment of the trial court if it proves to be void,
but there is also no prior decision from this court in this case on the same claim that could
otherwise serve as an ample guide according to the principle of stare decisis.
1 Both R.C. 2929.19 and 2967.28 expressly provide (and provided at the time Fischer was decided in 2010)
that the failure to appropriately notify the defendant "does not negate, limit, or otherwise affect" the period
of supervision imposed or the authority of the parole board to act on violations of post-release control. R.C.
2967.28(B) (2009); 2929.19(B)(3)(c) and (e) (2009); see also R.C. 2967.28(B); 2929.19(B)(2)(c) and (e).
The Supreme Court does not explain in Fischer how its view that a failure of notification by the trial court
renders a sentence void (even in part) can be compatible with the statutory language that the failure to
appropriately notify the defendant "does not negate, limit, or otherwise affect" the period of supervision
imposed or the authority of the parole board to act on violations of post-release control. Compare R.C.
2967.28(B); 2929.19(B)(2)(c) and (e) with Fischer at ¶ 10-26; see also State v. Fuller, 124 Ohio St. 3d 543,
2010-Ohio-726, ¶ 5-14 (Pfeifer, J., dissenting). The high court has held "that terms of post release control are
'part of the actual sentence' and that the court must inform the offender regarding these terms, because
sentencing is a judicial function and a sentence cannot be imposed by the executive branch of government."
State v. Schleiger, 141 Ohio St. 3d 67, 2014-Ohio-3970, ¶ 15, quoting Woods v. Telb, 89 Ohio St. 3d 504, 511-
12 (2000), citing Fischer at ¶ 23. But the Schleiger court did not hold R.C. 2929.19 or 2967.28
unconstitutional (or even cite them), even as it enunciated a proposition that poses a challenge to their
validity. In addition, that a trial court properly possessed of jurisdiction produces a void sentence or order
when it does what is prohibited by statute or fails to do what is required by statute, seems problematic. That
is, if errors appearing in a judgment or decision (even errors that violate a statute or, for that matter, the
Constitution) render the judgment or decision void, they create consequences for applying res judicata, law
of the case, and waiver.
No. 15AP-653 9
{¶ 17} As it stood at the time of Banks' sentencing, R.C. 2967.28 required the
imposition of post-release control in relevant part as follows:
(B) Each sentence to a prison term * * * for a felony of the
second degree * * * or for a felony of the third degree that is
not a felony sex offense and in the commission of which the
offender caused * * * physical harm to a person shall include a
requirement that the offender be subject to a period of post-
release control imposed by the parole board after the
offender's release from imprisonment. If a court imposes a
sentence including a prison term of a type described in this
division on or after July 11, 2006, the failure of a sentencing
court to notify the offender pursuant to division (B)(3)(c) of
section 2929.19 of the Revised Code of this requirement or to
include in the judgment of conviction entered on the journal a
statement that the offender's sentence includes this
requirement does not negate, limit, or otherwise affect the
mandatory period of supervision that is required for the
offender under this division. * * * [A] period of post-release
control required by this division for an offender shall be of one
of the following periods:
***
(2) For a felony of the second degree * * * three years;
(3) For a felony of the third degree that is not a felony sex
offense and in the commission of which the offender caused
* * * physical harm to a person, three years.
R.C. 2967.28(B) (2009). R.C. 2929.19, as written at the time of Banks' sentencing,
required notification regarding the period of post-release control in relevant part as
follows:
(3) Subject to division (B)(4) of this section, if the sentencing
court determines at the sentencing hearing that a prison term
is necessary or required, the court shall do all of the following:
***
(c) Notify the offender that the offender will be supervised
under section 2967.28 of the Revised Code after the offender
leaves prison if the offender is being sentenced for a felony of
the * * * second degree, * * * or for a felony of the third degree
that is not a felony sex offense and in the commission of which
the offender caused * * * physical harm to a person. If a court
imposes a sentence including a prison term of a type
No. 15AP-653 10
described in division (B)(3)(c) of this section on or after
July 11, 2006, the failure of a court to notify the offender
pursuant to division (B)(3)(c) of this section that the offender
will be supervised under section 2967.28 of the Revised Code
after the offender leaves prison or to include in the judgment
of conviction entered on the journal a statement to that effect
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.
***
(e) Notify the offender that, if a period of supervision is
imposed following the offender's release from prison, as
described in division (B)(3)(c) or (d) of this section, and if the
offender violates that supervision or a condition of post-
release control imposed under division (B) of section 2967.131
of the Revised Code, 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. If a court
imposes a sentence including a prison term on or after July 11,
2006, the failure of a court to notify the offender pursuant to
division (B)(3)(e) of this section that the parole board may
impose a prison term as described in division (B)(3)(e) of this
section for a violation of that supervision or a condition of
post-release control imposed under division (B) of section
2967.131 of the Revised Code or to include in the judgment of
conviction entered on the journal a statement to that effect
does not negate, limit, or otherwise affect the authority of the
parole board to so impose a prison term for a violation of that
nature 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.
R.C. 2929.19(B)(3)(c) and (e) (2009).2
{¶ 18} We have previously held that a trial court need not strictly comply with
these statutes need not be mechanically perfect in order to prevent a void judgment.
In our recent cases, we have " 'applied a "totality of the
circumstances" test to determine whether or not the
defendant was properly notified of post-release control.' "
State v. Cockroft, 10th Dist. No. 13AP-532, 2014-Ohio-1644,
quoting State v. Boone, 10th Dist. No. 11AP-1054, 2012-Ohio-
3653, ¶ 25, 975 N.E.2d 546, quoting State v. Williams, 10th
2 In the current version of this statute, these provisions are found in division (B)(2) of R.C. 2929.19.
No. 15AP-653 11
Dist. No. 10AP-1135, 2011-Ohio-6231, ¶ 23. Using that
approach, we have concluded that " 'the trial court sufficiently
fulfilled its statutory obligations when, taken as a whole, its
oral and written notifications, including those at the
sentencing hearing, properly informed the defendant of post-
release control.' " Cockroft at ¶ 14, quoting State v. Wilcox,
10th Dist. No. 13AP-402, 2013-Ohio-4347, ¶ 4.
State v. Holloman, 10th Dist. No. 14AP-419, 2014-Ohio-5763, ¶ 12. We have also found it
significant in past cases when a defendant was properly advised of post-release control in
plea hearings and in plea documents signed by the defendant. See, e.g., State v. Williams,
10th Dist. No. 10AP-1135, 2011-Ohio-6231, ¶ 14-21; State v. Chandler, 10th Dist. No.
10AP-369, 2010-Ohio-6534, ¶ 6, 13-14; State v. Mays, 10th Dist. No. 10AP-113, 2010-
Ohio-4609, ¶ 5.
{¶ 19} Here the trial court did not precisely follow the statutory notifications when
it sentenced Banks. According to the sentencing entry, it notified Banks, "orally and in
writing [that] the applicable period of post-release control is three (3) years mandatory."
But at the sentencing hearing the only mention the trial court made of post-release
control was to address Banks' counsel, "Mr. Slemmer, please notify your client of post-
release control in writing." (Feb. 3, 2009 Tr. 19.) Moreover, the notice with which Banks
was provided and which Banks and his counsel signed indicates five years of post-release
control and does not indicate whether it is mandatory or permissive. However, the trial
court did previously explain to Banks during the January 2009 plea hearing that, in the
event he pled guilty, Banks would be subject to three years of mandatory post-release
control and the potential consequences of violating that control:
THE COURT: Do you understand if you end up in prison as a
result of this plea, that once released from prison, you would
have mandatory three years supervision by the Adult Parole
Authority of Ohio on the F-2 and mandatory three-year
supervision on your Count Three. If you would violate the law
while under their supervision, they could send you back to
prison for more time on this case than this Court would give
you, but in any event, no more extra time than an amount
equal to one half this Court's sentence. Do you understand
that?
[BANKS]: Yes, Your Honor.
No. 15AP-653 12
(Jan. 5, 2009 Tr. 5.) In addition, Banks' plea form indicated that Banks understood that
three years of mandatory post-release control would be imposed and explained:
I understand that a violation of post-release control
conditions or the condition under R.C. 2967.131 could result
in more restrictive non-prison sanctions, a longer period of
supervision or control up to a specified maximum, and/or
reimprisonment for up to nine months. The prison term(s) for
all post-release control violations may not exceed one-half of
the prison term originally imposed. I understand that I may
be prosecuted, convicted, and sentenced to an additional
prison term for a violation that is a felony. I also understand
that such felony violation may result in a consecutive prison
term of twelve months or the maximum period of unserved
post-release control, whichever is greater. Prison terms
imposed for violations or new felonies do not reduce the
remaining post-release control period(s) for the original
offense(s).
The plea form initially indicated five years of post-release control and was then corrected
to properly indicate three years.
{¶ 20} While the trial court's notification to Banks did not strictly comply with the
terms of the statutes, the trial court did include the mandatory three years of post-release
control when it sentenced Banks in its judgment entry and it did take some steps to place
Banks on notice about the nature of his post-release control obligations. Under the
totality of the circumstances, we find that the trial court sufficiently notified Banks of the
term of post-release control. Banks' arguments about the imprecision of the trial court's
sentencing hearing statements, while a criticism, do not provide grounds for granting the
relief Banks seeks, since they do not show that post-release control was not imposed or
that Banks was not informed. Accordingly, Banks' sentence is not void.
{¶ 21} We overrule Banks' second assignment of error.
IV. CONCLUSION
{¶ 22} We overrule Banks' three assignments of error and affirm the judgment of
the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT, J., concurs.
LUPER SCHUSTER, J., concurs in judgment only.