State v. Arszman

[Cite as State v. Arszman, 2014-Ohio-2727.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130133
TRIAL NO. B-1205912
Plaintiff-Appellee, :
vs. : O P I N I O N.
TOBY ARSZMAN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentence Vacated in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: June 25, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christine Y. Jones, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
H ILDEBRANDT , Presiding Judge.
{¶1} Defendant-appellant Toby Arszman appeals the judgment of the
Hamilton County Court of Common Pleas convicting him of gross sexual imposition
under R.C. 2907.05(A)(1).
{¶2} On January 30, 2013, Arszman entered a guilty plea to the offense.
In February 2013, Arszman was sentenced to 17 months’ imprisonment and was
subsequently given credit for 185 days served as of the date of sentencing. The court
also classified Arszman as a Tier II sex offender and imposed a five-year term of
postrelease control.
Sex-Offender Classification
{¶3} In his first assignment of error, Arszman contends that the trial
court erred in classifying him as a Tier II sex offender. He argues that, under the
plain language of R.C. 2950.01(E)(1)(c), he was required to be classified as a Tier I
sex offender. The state concedes the error, and we accordingly sustain the first
assignment of error.
Postrelease Control
{¶4} In his second and final assignment of error, Arszman argues that
the court erred in imposing the five-year term of postrelease control. He maintains
that the court failed to inform him that a five-year term of postrelease control was
mandatory for his conviction under R.C. 2907.05(A)(1). See R.C. 2967.28(B)(1).
{¶5} As this court has held, “with respect to each offense, a sentencing
court [must] notify the offender, both at the sentencing hearing and in the judgment
of conviction, of the length and mandatory or discretionary nature of postrelease
control * * *.” State v. Duncan, 1st Dist. Hamilton No. C-120324, 2013-Ohio-381, ¶
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13, citing State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 77-
79, and State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶
69.
{¶6} In this case, the trial court did not inform Arszman of the
mandatory nature of postrelease control at the sentencing hearing. At the hearing,
the court stated, “For a period of time up to five years, sir, you will be under the
supervision of the Ohio Department of Corrections.” Thus, Arszman was not made
aware that postrelease control was mandatory for the entire five-year term.
{¶7} Although the state emphasizes that the court included the correct
term of postrelease control in its sentencing entry, the inclusion of the term in the
entry was insufficient under our holding in Duncan. Moreover, because the record
establishes that Arszman has now completed his term of imprisonment, the trial
court is without authority to correct the error. See Duncan at ¶ 15. Postrelease
control was improperly imposed, and we sustain the second assignment of error.
Conclusion
{¶8} We vacate the sentence in part and remand the cause for the trial
court to classify Arszman as a Tier I sex offender and to eliminate the imposition of
postrelease control. In all other respects, we affirm the judgment of the trial court.
Judgment affirmed in part, sentence vacated in part, and cause remanded.
HENDON, J., concurs.
DEWINE, J., concurs in part and dissents in part.
DEWINE, J., concurring in part and dissenting in part.
{¶9} I respectfully dissent from the portion of the majority’s decision
that vacates the imposition of postrelease control.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} Ohio law mandates that offenders who commit sex offenses serve
five years of postrelease control. See R.C. 2967.28(B)(1). The sentencing entry fully
complied with Ohio law. It provided that “[a]s part of the sentence in this case, the
defendant shall be supervised by the adult parole authority after defendant leaves
prison, which is referred to as post-release control, for five (5) years.” Nonetheless,
the majority vacates the postrelease-control term because it finds the trial court’s
oral notification at sentencing to be insufficient.
{¶11} The court told Mr. Arszman that “[f]or a period of up to five years,
* * * you will be under the supervision of the Ohio Department of Corrections.” This
statement was absolutely correct. (The five-year term provided for in the statute is
clearly encompassed within “up to five years.”) Granted, the statement was not as
precise as it could have been in that it didn’t tell Mr. Arszman that his postrelease-
control term would be exactly five years. But the court’s notification, combined with
the sentencing entry, clearly put Mr. Arszman on fair notice of his postrelease-
control term. In my view, the lack of precision in the trial court’s language here is
hardly grounds to forever discharge Mr. Arszman from his postrelease-control
obligations.
{¶12} There is nothing in statute that prescribes the precise words that a
trial court must use in notifying a defendant of his postrelease-control obligations.
The statute simply requires that the court “[n]otify the offender that the offender will
be supervised under section 2967.28 of the Revised Code after the offender leaves
prison[.]” R.C. 2929.19(B)(2)(c).
{¶13} The majority correctly points out that we have previously
interpreted this provision in conjunction with Ohio Supreme Court precedent to
mean that a court “[must] notify the offender, both at the sentencing hearing and in
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OHIO FIRST DISTRICT COURT OF APPEALS
the judgment of conviction, of the length and mandatory nature of postrelease
control * * *.” State v. Duncan, 1st Dist. Hamilton No. C-120324, 2013-Ohio-381,
¶ 13, citing State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9,
¶ 77-79, and State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d
1254, ¶ 69. But to say that the trial court must provide both notifications does not
mean that one notification cannot be informed by the other. Here, the “will be” for
“up to five years” language standing alone was imprecise; but when read together
with the sentencing entry, any imprecision was eliminated.
{¶14} As the Tenth Appellate District has pointed out, “the Supreme
Court has not prescribed a ‘magic words’ test for imposing post-release control,” and
even “when a term of post-release control is mandatory, the use of ‘up to’ language
does not necessarily invalidate the imposition of post-release control.” State v.
Williams, 10th Dist. Franklin No. 10AP-922, 2011-Ohio-6231, ¶ 19. See also State v.
Jordan, 10th Dist. Franklin No. 13AP-674, 2014-Ohio-1193, ¶ 10 (“This court has
consistently found that a trial court meets its statutory obligation to notify a
defendant of [postrelease control] ‘when its oral and written notifications, taken as a
whole, properly informed the defendant of post-release control.’ ”).
{¶15} Neither of the two Ohio Supreme Court decisions, relied upon in
Duncan and cited by the majority, compels a contrary result. See State v. Ketterer,
supra, and State v. Bloomer, supra. Those cases dealt with multiple errors in both
the sentencing entry and the notification. In Bloomer, the court failed to orally
notify the defendant of the length of the postrelease-control term, and the sentencing
entry was wrong both as to the length and the mandatory nature of postrelease
control. Bloomer at ¶ 69. Likewise in Ketterer, the court found “at least four errors”
in the imposition of postrelease control: the court advised of mandatory postrelease
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OHIO FIRST DISTRICT COURT OF APPEALS
control on the wrong counts, the sentencing entry incorrectly stated the counts to
which the postrelease-control notification had been given, the entry did not properly
explain the consequences of a violation, and the court had failed to follow the
procedures of R.C. 2921.191. Ketterer at ¶ 78. Noting that it was a capital case, the
court held “viewed cumulatively these errors cannot be considered harmless.” Id.{¶16} In taking issue with the dissent, the majority in Ketterer stated
“this is not a case in which the trial court merely misspoke in regard to one point
concerning postrelease control.” Id. But ours is such a case. And I do not believe the
trial court’s imprecise statement warrants the drastic remedy imposed by the
majority here.
{¶17} The objective of the statutory postrelease-control notification
requirement is to ensure that the defendant and other interested parties know the
“nature and duration of the restrictions that have been imposed by the trial court on
the defendant’s personal liberty.” Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-
Ohio-126, 844 N.E.2d 301, ¶ 31. This objective was met in this case. The sentencing
entry and oral notification made all involved aware that the defendant would be
supervised for five years.
{¶18} Here, there was nothing inaccurate about either the oral
notification or the sentencing entry. The sentencing entry imposed the postrelease-
control term that was mandated by law. The oral notification was imprecise in that
while it made clear that postrelease control was mandatory, it didn’t spell out that
the entire five-year period was mandatory. But as informed by the sentencing entry,
there was no confusion from the notification about Mr. Arszman’s postrelease-
control obligations. In these circumstances, I believe Mr. Arsman received the
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notification required by R.C. 2967.28. So, I respectfully dissent from the majority’s
decision to vacate that portion of his sentence.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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