State v. Clagg

[Cite as State v. Clagg, 2022-Ohio-4255.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 22AP-106
v. : (C.P.C. No. 18CR-116)
Michelle Clagg, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 29, 2022
On brief: G. Gary Tyack, Prosecuting Attorney, and
Taylor M. Mick.
On brief: Yeura R. Venters, Public Defender, and George M.
Schumann.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} Defendant-appellant, Michelle Clagg, appeals from the February 8, 2022
entry of the Franklin County Court of Common Pleas, purporting to impose a five-year
period of post-release control upon her after her release from incarceration. For the
following reasons, we sustain Ms. Clagg's assignment of error and vacate the judgment of
the trial court.
{¶ 2} Plaintiff-appellee, State of Ohio, filed a four-count indictment against
Ms. Clagg on January 9, 2018. The indictment stated two counts of engaging in solicitation
after a positive HIV test, a third-degree felony under R.C. 2907.24, and two counts of
loitering to engage in solicitation after a positive HIV test, a fifth-degree felony under
R.C. 2907.241. (Jan. 9, 2018 Indictment.) Ms. Clagg then entered a plea of guilty to one
No. 22AP-106 2
count of engaging in solicitation after a positive HIV test and one count of loitering to
engage in solicitation after a positive HIV test. (May 24, 2018 Entry of Guilty Plea.) For
both offenses, the plea form specified that with the imposition of a prison term, the trial
court might also impose an "Optional" period of "Up to Three Years" of post-release control.
Id. at 2. During the plea colloquy, the trial court asked Ms. Clagg if she understood that if
she ended "up in prison as a result of this plea, once released from prison, there could be
an optional three years supervision by the Adult Parole Authority of Ohio?" (May 24, 2018
Tr. at 5.) Ms. Clagg stated that she understood, and that she had read and understood the
plea agreement that she signed. Id. at 4-5. At sentencing, the trial court imposed a three-
year period of community control, with a reserved four-year prison term if Ms. Clagg
violated the conditions of community control. (May 25, 2018 Jgmt. Entry.)
{¶ 3} Unfortunately, Ms. Clagg did violate those conditions, resulting in a
revocation of community control. The trial court modified the reserved four-year prison
term, as permitted by R.C. 2929.15(B), to a three-year term by running the sentences for
the two offenses concurrently. See State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746,
¶ 22 (noting that R.C. 2929.15(B) allows that "the trial judge could choose to impose a lesser
term of imprisonment than the one the offender was informed of" when imposing a
community control sanction). The trial court did not mention post-release control at the
resentencing hearing. (Dec. 10, 2019 Tr. at 5.) The resentencing entry recommended to
the Adult Parole Authority that "post-release control be imposed." (Dec. 12, 2019
Revocation Entry.)
{¶ 4} After Ms. Clagg finished serving her sentence, the trial court summoned her
for a hearing, explaining that she was "brought back" to court "for something real simple."
(Feb. 8, 2022 Tr. at 2.) The trial court explained that the period of post-release control
imposed at sentencing "should have been for a five year [period] mandatory," but the trial
court "didn't say that on the record" at the hearing and proceeded to impose post-release
control on Ms. Clagg. Id. at 2-3. Her attorney objected, arguing that the trial court's failure
to correctly impose post-release control before resulted in a voidable sentence that could
only be corrected by direct appeal. Id. at 3-4. Because no party had appealed, Ms. Clagg's
attorney argued that the trial court could not correct the sentence after the expiration of the
period for direct appeal. Id. The trial court noted the objection. Id. at 4. On February 8,
No. 22AP-106 3
2022, the trial court purported to impose a five-year period of post-release control under
R.C. 2929.19(B)(2) by entering a judgment captioned "Amended Revocation Entry."
{¶ 5} Ms. Clagg timely appealed and asserts the following assignment of error:
The trial court did not have jurisdiction or legal authority to
resentence the defendant-appellant on February 8, 2022 after
having entered a final judgment of sentencing on the journal
on December [12], 2019, and the resentencing judgment
entered on the journal on February 8, 2022 is void and must be
vacated.
{¶ 6} Ms. Clagg argues that because the December 12, 2019 sentencing entry was a
final appealable order, any error it contained when imposing post-release control could
only have been corrected on direct appeal. (Brief of Appellant at 6.) Because neither she
nor the state appealed from the order, the trial court lacked jurisdiction to later modify the
judgment. Id. at 7. Ms. Clagg argues that only exceptions permitting subsequent
modification of a final judgment, correction of a void judgment or a nunc pro tunc entry
correcting a clerical error, do not apply here. Id. at 8-13. The trial court's error when
imposing post-release control rendered the original judgment voidable, not void, and the
uncorrected, unappealed error therefore stands under the principle of res judicata. Id. at
14-15. It is the Amended Revocation Entry that is void, Ms. Clagg argues, because the trial
court lacked jurisdiction to resentence her, and she therefore asks that we vacate it. Id. at
16-17.
{¶ 7} In response, the state "concedes error," and adds that the trial court was
required to correct any error in the imposition of post-release control according to the
procedure in R.C. 2929.191 but failed to do so before Ms. Clagg was released from prison.
(Brief of Appellee at 3.) Accordingly, the state concludes that "the trial court lacked
jurisdiction to re-sentence Ms. Clagg" and impose post-release control on her after the
expiration of her sentence. Id.
{¶ 8} The trial court's December 12, 2019 final judgment revoking community
control and imposing a prison sentence, captioned "Revocation Entry," stated that at the
December 10, 2019 sentencing hearing: "The Court notified the Defendant, orally and in
writing, [that] the applicable period of post-release control pursuant to
R.C. 2929.19(B)(2)(c), (d), and (e) is up to Three (3) years optional." For two reasons, this
statement was incorrect. First, at the four-minute hearing, the trial court made no mention
No. 22AP-106 4
of post-release control. (Dec. 10, 2019 Tr. at 5.) When imposing sentence, the trial court
stated only: "At this point, I am revoking community control, sentencing you to three years
in ODRS, giving you 282 days jail credit. That will be all." Id. Under R.C. 2929.19(B)(2)(d),
the trial court was required to "[n]otify the offender" at the sentencing hearing "that the
offender will be supervised * * * after the offender leaves prison," but did not so inform Ms.
Clagg. Second, the applicable period of post-release control was a mandatory five-year
term, not the optional three-year period stated in the entry. R.C. 2967.28(B)(1) (requiring
"a period of post-release control * * * [f]or a felony sex offense, five years").
{¶ 9} "When the sentencing court has jurisdiction to act, sentencing errors in the
imposition of postrelease control render the sentence voidable, not void, and the sentence
may be set aside if successfully challenged on direct appeal." State v. Harper, 160 Ohio
St.3d 480, 2020-Ohio-2913, ¶ 42. Here, however, neither party appealed, and "unless it is
vacated on appeal, a voidable judgment has the force of a valid legal judgment, regardless
of whether it is right or wrong." State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784,
¶ 17, citing Tari v. State, 117 Ohio St. 481 (1927). Furthermore, because neither party
appealed and "raised [the] argument that the trial court failed to properly impose
postrelease control on appeal, it is now barred by the doctrine of res judicata." Harper at
¶ 41, citing State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277, ¶ 7, and State v. Szefcyk, 77
Ohio St.3d 93, 95 (1996).
{¶ 10} The trial court's attempt to correct its own mistake after Ms. Clagg's release
was misguided. "A trial court does not have the authority to resentence a defendant for the
purpose of adding a term of postrelease control as a sanction for a particular offense after
the defendant has already served the prison term for that offense." State v. Holdcroft, 137
Ohio St.3d 526, 2013-Ohio-5014, paragraph 3 of the syllabus, overruled in part on other
grounds by Harper. The result of this effort, the Amended Revocation Entry, was entered
without jurisdiction. Holdcroft at ¶ 5 (holding that "a trial court loses jurisdiction to
resentence a defendant for the purpose of imposing postrelease control once the defendant
has served his entire sentence of incarceration"). No statute authorized the trial court's
action. See R.C. 2929.191(C) (providing procedure to correct error in the imposition of
post-release control) and State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, ¶ 23,
overruled on other grounds as stated in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-
No. 22AP-106 5
6238, ¶ 43, fn. 3 (R.C. 2929.191 procedure only "applies to offenders who have not yet been
released from prison."). Consequently, the entry was void and must be vacated. Lingo v.
State, 138 Ohio St.3d 427, 2014-Ohio-1052, paragraphs one and two of the syllabus ("A void
judgment is a nullity" that a court may vacate based on its "inherent authority.").
{¶ 11} For the foregoing reasons, we sustain Ms. Clagg's assignment of error and
vacate the trial court's Amended Revocation Entry of February 8, 2022.
Judgment vacated.
KLATT and SADLER, JJ., concur.
_________________