State v. Russell , 2016 Ohio 3349 ( 2016 )


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  • [Cite as State v. Russell, 
    2016-Ohio-3349
    .]
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    State of Ohio,                                      :
    Plaintiff-Appellee,                :
    No. 16AP-108
    v.                                                  :              (C.P.C. No. 02CR-3390)
    Kenneth Russell,                                    :           (ACCELERATED CALENDAR)
    Defendant-Appellant.               :
    D E C I S I O N
    Rendered on June 9, 2016
    On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
    Gilbert, for appellee.
    On brief: Shaw & Testa, LLP, and Nicholas J. Testa, for
    appellant.
    APPEAL from the Franklin County Court of Common Pleas
    BRUNNER, J.
    {¶ 1} Defendant-appellant, Kenneth Russell, appeals a judgment of the Franklin
    County Court of Common Pleas entered on January 15, 2016 that denied Russell's motion
    for resentencing. Because Russell was appropriately advised of the five-year mandatory
    term of post-release control and the consequences of violating the terms of that control,
    we affirm.
    I. FACTS AND PROCEDURAL HISTORY
    {¶ 2} On June 18, 2002, a Franklin County Grand Jury indicted Russell for five
    counts of cocaine trafficking, one count with a major drug offender specification, and one
    count of participating in a criminal gang. Russell initially pled not guilty on June 25,
    2002. However, on May 6, 2003, pursuant to an agreement made with the prosecution,
    Russell pled guilty to one count of participating in a criminal gang and three counts of the
    2
    No. 16AP-108
    trafficking in cocaine. The remaining two counts, including the major drug offender
    specification, were dismissed. The trial court proceeded immediately to sentencing.
    {¶ 3} During the combined plea and sentencing hearing, before the trial court
    accepted Russell's guilty plea, it informed him of the nature of the post-release control to
    be imposed for sentencing upon the guilty plea, and Russell said he understood. The
    guilty plea form, signed by Russell on the same day, contained a similar written statement
    concerning post-release control. The trial court then sentenced Russell to seven years on
    the criminal gang count and eight years on each of the cocaine trafficking counts, all
    sentences to be served concurrently with each other, for a total prison term of eight years.
    In the judgment entry on the conviction, the trial court stated that it had "notified the
    Defendant, orally and in writing, of the possibility of the applicable periods of post-release
    control." (May 8, 2003 Jgmt. Entry at 2.)
    {¶ 4} Over 12 years later, on October 14, 2015, Russell filed a motion for
    resentencing arguing that post-release control was not properly imposed and, now that he
    has completed his sentence, never can be. On January 15, 2016, the trial court denied the
    motion on the grounds that the trial court did properly notify Russell of post-release
    control.
    {¶ 5} Russell now appeals.
    II. ASSIGNMENTS OF ERROR
    {¶ 6} Russell presents a single assignment of error for review:
    The trial court erred in denying Appellant's motion for
    resentencing and failing to terminate postrelease control.
    III. DISCUSSION
    {¶ 7} R.C. 2967.28 requires (and required at the time of Russell's sentencing) that
    a person convicted of a first-degree felony (as was Russell) is subject to a five-year period
    of post-release control. R.C. 2967.28(B)(1). As it stood at the time of Russell's plea and
    sentencing on May 6, 2003, R.C. 2929.19(B) required the trial court to give notice to the
    offender regarding post-release control:
    (3) [I]f the sentencing court determines at the sentencing
    hearing that a prison term is necessary or required, the court
    shall do all of the following:
    3
    No. 16AP-108
    ***
    (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 first degree * * *;
    ***
    (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.
    In the event an offender is not properly notified that he or she is required to be subject to
    a period of post-release control, that portion of the sentence is void and 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; 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 postrelease
    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)").
    {¶ 8} According to the law of this district, a trial court's compliance with these
    statutes need not be mechanically perfect in order to avoid reversal.
    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
    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.
    4
    No. 16AP-108
    State v. Holloman, 10th Dist. No. 14AP-419, 
    2014-Ohio-5763
    , ¶ 12. In prior cases we have
    also found to be significant a defendant being properly advised of post-release control in
    plea hearings and in plea documents signed by the defendant prior to sentencing. 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.
    {¶ 9} In this case, the trial court held a single plea and sentencing hearing on
    May 6, 2003 during which it both accepted Russell's plea and sentenced him on a jointly-
    recommended sentence. During that hearing, the following colloquy ensued:
    THE COURT: Mr. Russell, there was some discussion back in
    chambers between your lawyer and the prosecutor and
    myself. I understand that there is a recommendation here
    from everybody concerning the amount of time you are to do
    in prison. I intend to follow that recommendation. But I need
    to explain some things to you about prison.
    This sentence I'm going to give you, you will do that day for
    day. There is no time off for good behavior. When your eight-
    year sentence is over with and you are released from the
    prison, the Adult Parole Authority will supervise your
    behavior out on the street for five years after your release. If
    you violate any condition of your release during that five-year
    period, they can return you to the prison for up to nine
    months for each violation. If you repeatedly violate, these
    nine-month periods could add up to four years. That would
    be one half of my eight-year sentence.
    So if you mess up every way you can here, you can turn this
    eight-year prison sentence into a 12-year prison sentence. Do
    you understand that?
    [RUSSELL]: Yes, sir.
    THE COURT: You're going to do eight years in prison.
    They're going to let you out, but they're going to put
    conditions on your behavior. If you violate those conditions
    they can keep sending you back to the prison for up to four
    more years.
    [RUSSELL]: Yes, sir.
    5
    No. 16AP-108
    (Tr. at 6-7.) The entire hearing transcript, not including the reporter certificate and cover
    page, is 19 pages, and no breaks in the hearing are reflected in the record. While Russell
    argues that this colloquy took place in the plea hearing and not per se at a sentencing
    hearing, as contemplated by statute, there is no factual basis in the record for drawing
    such a distinction. In this instance, the plea and sentencing hearings were one and the
    same for all intents and purposes under R.C. 2929.19(B)(3).
    {¶ 10} Moreover, the plea form signed by Russell on the day of the combined
    hearing (and filed in the record two days later) indicates that five years of mandatory
    post-release control was applicable according to the following statement contained in the
    plea form Russell signed:
    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).
    (May 8, 2003 Plea Form at 2.) The judgment entry further reflects that Russell was
    "notified * * * orally and in writing, of the possibility of the applicable periods of post-
    release control." (May 8, 2003 Jgmt. Entry at 2.)
    {¶ 11} Under the circumstances, Russell was sufficiently notified of the mandatory
    five-year period of post-release control. See, e.g., State v. Banks, 10th Dist. No. 15AP-653,
    
    2015-Ohio-5372
    , ¶ 17-20.      Further, we have determined on review that this legal
    requirement was satisfied and that Russell's sentence was not void in part. Since the
    question of a void sentence exists irrespective of arguments of remedy or res judicata
    under Fischer, the State's arguments that Russell's proper remedy was a habeas
    proceeding and that res judicata apply are moot.         Russell's assignment of error is
    overruled.
    6
    No. 16AP-108
    IV. CONCLUSION
    {¶ 12} Because the trial court did adequately notify Russell of the mandatory five-
    year period of post-release control and the consequences of violating supervision, we
    overrule his sole assignment of error and affirm the judgment of the Franklin County
    Court of Common Pleas.
    Judgment affirmed.
    BROWN and KLATT, JJ., concur.