State v. Roberts
State v. Roberts
Opinion of the Court
{¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment that denied a motion for summary judgment and for judgment on the pleadings filed by Benjamin H. Roberts, defendant below and appellant herein. Appellant assigns the following error for review:
"DID THE TRAIL [SIC] COURT ERR IN FAILING TO IMPOSE POST RELEASE CONTROL AT ROBERTS' SENTENCING HEARING AND/OR IN THE COURT'S JANUARY 26, 2006 'JUDGMENT ENTRY AND FINAL APPEALABLE ENTRY'?"
{¶ 2} In January 2006, appellant agreed to plead guilty to the following offenses: (1) two counts of fourth-degree-felony trafficking in crack cocaine; (2) four counts of third-degree-felony trafficking in crack cocaine; (3) first-degree-felony trafficking in crack cocaine; (4) first-degree-felony aggravated possession of crack cocaine; (5) third-degree-felony having weapons while under a disability; and (6) fifth-degree-felony possessing criminal tools.
{¶ 3} At the change of plea hearing, the trial court informed appellant, inter alia, that "[t]here are felonies of the first degree involved," which "means if you are to enter a plea you could be subject to a period of post release control for up to five years." The court did not verbally advise appellant that he could be subject to any terms of discretionary postrelease control for the third, fourth, and fifth degree felonies. After accepting appellant's guilty plea, the court immediately sentenced appellant. When the court announced appellant's sentence, the court did not indicate whether any of the sentences included *66mandatory or discretionary postrelease control.
{¶ 4} On January 26, 2006, the trial court entered a combined entry reciting its acceptance of appellant's guilty plea, finding appellant guilty, and imposing sentence. The court's entry states that the court advised appellant
that if sentenced to a term of imprisonment for a felony of the first * * * degree, * * * post release control is mandatory, and [appellant] will be supervised under post release control upon release from prison.
Further, for a felony of the first degree * * * the mandatory period of post release control is five years * * *.
The Court further advised [appellant] that if sentenced to a term of imprisonment for a felony of the third, fourth or fifth degree that is not subject to [R.C.] 2929.19(B)(3)(c), post release control is discretionary and the Court notified appellant that he * * * may be supervised under post release control for up to three years upon release from prison.
(Emphasis added.)
{¶ 5} The trial court then sentenced appellant to serve the following prison terms and ordered that he serve them concurrently to one another: (1) seventeen months in prison for each of the fourth-degree-felony trafficking in cocaine offenses; (2) four years in prison for each of the third-degree felony trafficking in crack cocaine offenses; (3) five years in prison for the first-degree felony trafficking in crack cocaine offense; (4) five years in prison for the first-degree felony aggravated possession of crack cocaine offense; (6) four years in prison for the third-degree-felony having weapons while under a disability offense; and (7) twelve months in prison for the fifth-degree-felony possessing criminal tools offense. The sentencing portion of the court's entry does not mention whether postrelease control accompanied the sentences. Appellant did not appeal the trial court's judgment.
{¶ 6} Approximately ten years later, on February 23, 2016, appellant filed a "motion to find the judgment entered on January 26, 2006 'not a final appealable order and void in-part,' where the trial court failed to properly comply with a number of statutory requirements." Appellant asserted that the court did not properly impose postrelease control and failed to comply with sentencing provisions regarding mandatory fines and court costs. Appellant requested the court to declare the judgment a "non-final appealable order" and void, in part, due to the court's failure to correctly impose postrelease control.
{¶ 7} Appellant attached to his motion a copy of a July 27, 2015 warrant for his arrest that the Adult Parole Authority (APA) issued. The warrant indicates that on November 24, 2015, appellant was released from prison and placed under the APA's supervision. The warrant recites that the APA believes appellant violated the conditions of his release. Appellant requested the court to void the outstanding warrant.
{¶ 8} In response, the state argued that the trial court advised appellant of postrelease control pursuant to the rules in effect at the time of his sentencing. The state further asserted that the court does not "impose" postrelease control, but instead, the APA imposes postrelease control. The state claimed that the court is simply "obligated to advise a defendant of the rules regarding post-release control."
{¶ 9} On March 1, 2016, the trial court overruled appellant's motion. The court found that it did not have authority to impose postrelease control for a third, fourth, or fifth degree felony.
*67{¶ 10} On March 14, 2016, appellant filed a "motion to find post release control void, based on the fact that the trial court failed to impose post release control as to count seven and eight, which are felonies of a first degree in the judgment entry." Appellant observed that the court's March 1, 2016 entry indicated that it did not have authority to impose postrelease control for third, fourth, or fifth degree felonies. He asserted that the court does have jurisdiction to impose postrelease control for first-degree felonies and pointed out that he pled guilty to two first-degree felonies. Appellant argued that the court failed to impose the mandatory five-year term of postrelease control for the felonies and requested the court to find that the court failed to properly impose postrelease control and declare his postrelease control void.
{¶ 11} On May 6, 2016, appellant filed a "motion for summary judgment and judgment on pleadings filed on March 14, 2016 regarding void judgment." Appellant alleged that the trial court's January 26, 2006 judgment is void due to the failure to properly impose postrelease control.
{¶ 12} On May 12, 2016, the trial court overruled appellant's summary judgment motion. The court determined that it resolved "these matters" in its March 1, 2016 judgment entry. The court also found that appellant currently is imprisoned in a federal corrections institution, with approximately five and one-half years remaining. The court additionally determined that "summary judgment is not an appropriate remedy in a criminal action of this type." This appeal followed.
{¶ 13} In his sole assignment of error, appellant asserts that the trial court improperly overruled his motion that requested the court to void the postrelease control that the APA imposed.
{¶ 14} The state responds that the trial court did not err by overruling appellant's summary judgment motion. The state first contends that summary judgment motions are inapplicable to criminal proceedings. The state also disputes appellant's allegation *68that his postrelease control is void. The state asserts that the trial court complied with the sentencing statutes in effect at the time of appellant's sentencing and provided appellant with appropriate notice concerning postrelease control.
{¶ 15} Initially, we do not agree with the state that the trial court properly denied appellant's motion solely on the basis that he styled it as a "summary judgment" motion. Instead, courts should "recast irregular motions into whatever category necessary to identify and establish the criteria by which the motion should be judged." State v. Schlee ,
Because "[n]o court has the authority to impose a sentence that is contrary to law," [ Fischer ] at ¶ 23, when the trial court disregards statutory mandates, "[p]rinciples of res judicata, including the doctrine of the law of the case, do not preclude appellate review. The sentence may be reviewed at any time, on direct appeal or by collateral attack." Id. at ¶ 30.
Id. at ¶ 22.
{¶ 16} In the case at bar, although appellant may have styled his May 6, 2016 motion as a summary judgment motion, the text of his motion indicates that he sought relief from what he alleges is a void sentence, as argued in his March 14, 2016 motion. We therefore do not review this appeal as an appeal from a trial court's judgment denying a summary judgment motion. Instead, appellant's motion should be recast as a motion to correct an illegal sentence and review this appeal using the void-sentence doctrine. Fischer at ¶ 25 ; see State v. Mosley , 1st Dist. Hamilton No. C-150429,
{¶ 17} "[A] sentence that is not in accordance with statutorily mandated terms is void." Fischer at ¶ 8. Thus, " '[a] sentence that does not include the statutorily mandated term of postrelease control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.' " State v. Billiter ,
[I]f a trial court imposes a sentence that is unauthorized by law, the sentence is void. " '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.' "
Billiter at ¶ 10, quoting Bezak at ¶ 12, quoting Romito v. Maxwell ,
{¶ 18} Additionally, "in the absence of a proper sentencing entry imposing postrelease control, the parole board's imposition of postrelease control cannot be enforced." State v. Bloomer ,
{¶ 19} In the case sub judice, it appears that the trial court failed to correctly impose postrelease control. Former R.C. 2929.19(B)(3)(c), as in effect on the date of appellant's sentencing hearing, required a sentencing court imposing a prison term upon a first-degree felony to notify the offender that "the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison." 2004 Ohio Laws File 163 (Am. Sub. H.B. 473). Former R.C. 2929.19(B)(3)(d) required a sentencing court imposing a prison term upon third, fourth, or fifth degree felony offenders to notify the offender that "the offender may be supervised under section 2967.28 of the Revised Code after the offender leaves prison."
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 [.]3
{¶ 20} In addition to the foregoing notification provisions, former *70R.C. 2929.14(F)
that every sentence of imprisonment for a felony contain a term of postrelease control, regardless of whether the offense is subject to a mandatory period for an enumerated term of years pursuant to R.C. 2967.28(B) or a discretionary period to be imposed as determined necessary by the parole board pursuant to R.C. 2967.28(C).
Jordan at ¶ 20. Consequently, "[w]hile it is true that the Adult Parole Authority may exercise discretion in imposing postrelease control in certain cases, a sentencing trial court has no such discretion." Id. at ¶ 22. As the Jordan court explained:
Accordingly, if a trial court has decided to impose a prison term upon a felony offender, it is duty-bound to notify that offender at the sentencing hearing about postrelease control and to incorporate postrelease control into its sentencing entry, which thereby empowers the executive branch of government to exercise its discretion. Woods v. Telb , 89 Ohio St.3d [504] at 512-513,733 N.E.2d 1103 [ (2000) ]. Stated differently, even in cases under R.C. 2967.28(C) where the General Assembly has granted the Adult Parole Authority discretion to impose postrelease control, a sentencing trial court must notify the offender about postrelease control and include it in its judgment entry. Therefore, the distinction between discretionary and mandatory postrelease control is one without a difference with regard to the duty of the trial court to notify the offender at the sentencing hearing and to incorporate postrelease control notification into its journal entry. See R.C. 2967.28(B) and (C).
{¶ 21} In the case at bar, the trial court informed appellant, during the plea proceeding part of the hearing, that (1) "if" appellant pleads guilty to a first degree felony, he "could be subject" to a five-year term of postrelease control, (2) "if" the court sentences him to a prison term for a first-degree felony, "post release control is mandatory," "he will be supervised under post release control upon release from prison," and "the mandatory period of post release control" for a first-degree felony is five years, and (3) "if" the court sentences him to prison for a third, fourth, or fifth degree felony, "post release control is discretionary," and he "may be supervised under post release control for up to three years upon release from prison." When the court imposed sentence, however, the court did not include any terms of postrelease control that would or might follow appellant's release from prison. Thus, although the court notified appellant of what might happen if the court sentenced him to a prison term for a first, third, fourth, or fifth degree felony, the court did not actually impose postrelease control. Consequently, because the trial court did not properly impose postrelease control, appellant's postrelease control sanction is void and the APA lacked authority to impose postrelease control. See Hernandez (determining that parole board lacked authority to impose postrelease control when the court failed to notify offender of postrelease control or to incorporate it into sentencing entry); State v. Simpkins ,
{¶ 22} Furthermore, because appellant has completed the prison term that the court imposed, the trial court no longer has the power to remedy its failure to correctly impose postrelease control. Holdcroft , paragraphs two and three of the syllabus ; State v. Qualls ,
{¶ 23} Accordingly, based upon the foregoing reasons, we sustain appellant's sole assignment of error, reverse the trial court's judgment, and vacate appellant's postrelease control.
*72JUDGMENT REVERSED AND POSTRELEASE CONTROL SANCTIONS HEREBY VACATED.
Harsha, J. & Hoover, J.: Concur in Judgment & Opinion
Appellant's brief does not delineate an assignment of error as App.R. 16(A)(3) requires. Rather, he presents a "question raised," which we construe as his assignment of error.
We point out that the only evidence in the record to indicate that the APA placed appellant on postrelease control is the July 25, 2015 arrest warrant. The state, however, does not dispute that appellant was indeed placed on postrelease control. We therefore do not question it.
Additionally, we question whether appellant employed the proper procedure to void the adult parole authority's imposition of postrelease control. See Hernandez v. Kelly ,
We also observe that in Hernandez , unlike in the case at bar, the court's sentencing entry "says nothing about postrelease control." Id. at ¶ 26. Therefore, we express no opinion whether a writ of habeas corpus would have been proper in the case sub judice. See generally Patterson v. Ohio Adult Parole Auth. ,
Appellant has not argued that the trial court failed to comply with this provision. We include it merely for purposes of explanation.
Former R.C. 2929.14(F) stated:
If a court imposes a prison term of a type described in division (B) of section 2967.28 of the Revised Code, it shall include in the sentence a requirement that the offender be subject to a period of post-release control after the offender's release from imprisonment, in accordance with that division. If a court imposes a prison term of a type described in division (C) of that section, it shall include in the sentence a requirement that the offender be subject to a period of post-release control after the offender's release from imprisonment, in accordance with that division, if the parole board determines that a period of post-release control is necessary.
2004 Ohio Laws File 163 (Am. Sub. H.B. 473).
Former R.C. 2967.28 stated:
(B) Each sentence to a prison term for a felony of the first degree, * * * 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. Unless reduced by the parole board pursuant to division (D) of this section when authorized under that division, a period of post-release control required by this division for an offender shall be of one of the following periods:
(1) For a felony of the first degree or for a felony sex offense, five years;
* * * *
(C) Any sentence to a prison term for a felony of the third, fourth, or fifth degree that is not subject to division (B)(1) or (3) of this section shall include a requirement that the offender be subject to a period of post-release control of up to three years after the offender's release from imprisonment, if the parole board, in accordance with division (D) of this section, determines that a period of post-release control is necessary for that offender.
2002 Ohio Laws File 210 (H.B. 510)
Case-law data current through December 31, 2025. Source: CourtListener bulk data.