[Cite as State v. Harris,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-210661 TRIAL NO. B-0402915 Plaintiff-Appellee, :

vs. : O P I N I O N.

FRED HARRIS, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 21, 2022

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michael J. Trapp, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Presiding Judge.

{¶1} Defendant-appellant Fred Harris appeals a nunc pro tunc sentencing

entry incorporating his specific postrelease-control obligations after serving his

sentence. Ultimately, we find no merit in his sole assignment of error, and we affirm

the trial court's judgment.

{¶2} On February 14, 2005, Harris pleaded no contest to and was convicted

of two counts of attempted murder, three counts of felonious assault, one count of

carrying a concealed weapon, and one count of escape. The attempted-murder counts

and the felonious-assault counts had accompanying firearm specifications. Harris was

sentenced to a total of 18 years in prison. The judgment entry stated, “As part of the

sentence in this case, the defendant is subject to the post release control supervision

of R.C. 2967.28.” Because we do not have a transcript from the original hearing, we

cannot determine whether Harris was properly informed of his postrelease-control

obligations. The entry, however, did not go into specifics.

{¶3} In 2007, Harris attempted to appeal those convictions. This court

dismissed the appeal because Harris failed to file a docket statement. Ten years later,

in April 2017, Harris filed a motion for a delayed appeal under App.R. 5 seeking review

of the trial court’s sentencing entry of February 14, 2005. We denied his motion and

dismissed the appeal.

{¶4} After his convictions in 2005, Harris filed numerous pro se motions

with the trial court, all of which were denied. On November 10, 2021, the trial court

appointed counsel to represent Harris. Subsequently, the court held a hearing on the

issue of postrelease control. Harris argued that because the state had not appealed

from the original judgment entry, the court lacked the authority to impose postrelease

control, and the issue was res judicata.

{¶5} The state argued that the court had authority to correct the judgment

entry under R.C. 2929.191, which sets forth procedures to correct a sentence that fails

2 OHIO FIRST DISTRICT COURT OF APPEALS

to properly impose a term of postrelease control. See State v. Singleton,

,

,

; State v. Williams, 1st Dist.

Hamilton No. C-081148,

, ¶ 21. For sentences imposed after July 11,

2006, the effective date of the statute, those procedures contemplate only a correction

of the postrelease-control defect and not a de novo resentencing. State v. Brown, 1st

Dist. Hamilton Nos. C-100309 and C-110310,

, ¶ 8. Harris was

originally sentenced before the effective date of the statute. For sentences imposed

before that date, R.C. 2929.191 requires a trial court to hold a hearing informing the

offender that he would be subject to postrelease control, the terms of postrelease

control, and the consequences of violating the terms of postrelease control.

{¶6} The trial court found that R.C. 2929.191 applied to Harris. It advised

Harris that when he was released from prison, he would be subject to (1) five years of

mandatory postrelease control on the two counts of attempted murder and one of the

counts of felonious assault, (2) three years of mandatory postrelease control on the

other two counts of felonious assault and escape count, and (3) three years of

discretionary postrelease control on the count of carrying a concealed weapon. The

court also informed Harris of the consequences for violating the terms of his

postrelease control. On December 9, 2021, the court journalized an entry nunc pro

tunc to February 14, 2005, specifying the terms of postrelease control. Harris has filed

a timely appeal from that judgment.

{¶7} In his sole assignment of error, Harris contends that the trial court’s

judgment is contrary to law. He argues that because neither he nor the state appealed

the trial court’s original entry, the trial court lacked jurisdiction to alter the entry with

respect to postrelease control, and the clarification or addition is barred by res

judicata. This assignment of error is not well taken.

{¶8} Former R.C. 2967.28(B), in effect at the time of the offense, required

prison sentences for felonies to include a mandatory or discretionary term of

3 OHIO FIRST DISTRICT COURT OF APPEALS

postrelease control after the offender is released from prison. Former R.C. 2967.28(B)

and (C) identified the length of the term of postrelease-control supervision for each

degree of felony.

{¶9} Under former R.C. 2929.19(B), the trial court had a mandatory duty to

provide notice of postrelease control at the sentencing hearing. State v. Bates,

,

,

, citing State v. Jordan,

,

,

, ¶ 23. The court was required to

notify the defendant at the sentencing hearing of the term of supervision, whether

postrelease control was discretionary or mandatory and the consequences of violating

postrelease control.

, citing State v. Grimes,

, 2017-Ohio-

2927,

, ¶ 11. The court was also required to incorporate the same

information in the sentencing entry.

. As stated, we do not know whether

the trial court correctly informed Harris of his postrelease-control obligations at the

original sentencing hearing. We do know that the entry was insufficient.

{¶10} Prior to 2020, the Ohio Supreme Court held in series of cases beginning

with Jordan, that the trial court’s failure to validly impose postrelease control

rendered the sentence void and subject to correction at any time before the offender

was released from prison.

. In response to those cases, the legislature

enacted R.C. 2929.191. State v. Ryan,

,

,

(1st Dist.). It established procedures to correct a sentence that

failed to properly impose a term of postrelease control. Singleton,

,

,

; Williams, 1st Dist. Hamilton No. C-081148,

, at ¶ 21. Which procedure applied depended upon whether the

offender was sentenced before or after July 11, 2006, the effective date of the statute.

{¶11} Subsequently, the Ohio Supreme Court held that R.C. 2929.191 could

not be applied retroactively.

; Williams at ¶ 21. Therefore, for

sentences imposed before July 11, 2006, the effective date of the statute, the trial court

4 OHIO FIRST DISTRICT COURT OF APPEALS

must “conduct a de novo sentencing hearing in accordance with decisions of Supreme

Court of Ohio.” Singleton at paragraph one of the syllabus. Relying on its previous

decisions that declared sentences in which it held that postrelease control was not

properly imposed void, the court stated,

R.C. 2929.191 purports to authorize application of the remedial

procedure set forth therein to add postrelease control to sentences

imposed before its effective date. We recognize the General Assembly’s

authority to alter our caselaw's characterization of a sentence lacking

postrelease control as a nullity and to provide a mechanism to correct

the procedural defect by adding postrelease control at any time before

the defendant is released from prison. However, for sentences imposed

prior to the effective date of the statute, there is no existing judgment

for a sentencing court to correct. [R.C. 2929.191] cannot retrospectively

alter the character of sentencing entries issued prior to its effective date

that were nullities at their inception, in order to render them valid

judgments subject to correction. Therefore, for criminal sentences

imposed prior to July 11, 2006, in which a trial court failed to properly

impose postrelease control, the de novo sentencing procedure detailed

in decisions of the Supreme Court of Ohio should be followed to

properly sentence an offender.

Id. at ¶ 26.

{¶12} The court later clarified that when a trial court does not properly impose

postrelease control as part of a defendant’s sentence, only that part of the sentence is

void, not the entire sentence. Brown, 1st Dist. Hamilton Nos. C-100309 and C-

100310,

, at ¶ 9. Therefore, the new sentencing hearing to which the

offender is entitled is limited to the proper imposition of postrelease control. State v.

5 OHIO FIRST DISTRICT COURT OF APPEALS

Fisher,

,

,

, paragraph two of the

syllabus; Brown at ¶ 10.

{¶13} In State v. Harper,

,

,

, the Ohio Supreme Court overruled the line of cases in which it had held that a

trial court’s failure to validly impose postrelease control rendered that part of the

sentence void. It stated, “Today, we realign our precedent in cases involving the

imposition of postrelease control with the traditional understanding of what

constitutes a void judgment.” Id. at ¶ 4. The court held that “[w]hen a case is within

a court’s subject-matter jurisdiction and the accused is properly before the court, any

error in the exercise of that jurisdiction in imposing postrelease control renders the

court’s judgment voidable, permitting the sentence to be set aside if the error has been

successfully challenged on direct appeal.” Id.

{¶14} Harris argues that under Harper, the failure to correctly impose

postrelease control rendered that part of the sentence voidable, and because the state

did not raise the issue on direct appeal, it is res judicata. He relies heavily on Bates,

,

,

.

{¶15} In Bates, the original sentencing occurred in 2008, after the effective

date of R.C. 2929.191. The trial court failed to notify the defendant that postrelease

control was mandatory and the consequences of violating postrelease control. Neither

the state nor the defendant raised the issue of postrelease control on direct appeal. In

2018, the state raised the issue at a sexual-predator-classification hearing. At that

time, the trial court notified the defendant about postrelease control. Subsequently,

the court journalized a sentencing entry incorporating those notifications.

{¶16} The defendant appealed and challenged the postrelease-control portion

of the sentence. The appellate court affirmed the trial court’s decision. The defendant

appealed to the Ohio Supreme Court, which vacated the 2018 entry to the extent that

it imposed postrelease control. The court held that the state was the party aggrieved

6 OHIO FIRST DISTRICT COURT OF APPEALS

by the trial court’s failure to properly impose postrelease control. Bates,

,

,

. It held that Harper applied to

the state as well as the defendant, and because the state had failed to raise the issue on

direct appeal it was barred by res judicata. Id. at ¶ 23-25.

{¶17} One of the dissents in Bates stated that R.C. 2929.191 applied, and that

it granted the trial court authority to hold a hearing and issue a corrected judgment

entry. Id. at ¶ 45. In response, the majority opinion stated that “R.C. 2929.191 does

not provide a resolution in this case * * *.” It acknowledged that R.C. 2929.191

“provides a procedure to correct a court’s failure to validly impose postrelease control.”

Id. at ¶ 30. But the statute required the trial court to hold a hearing and provide proper

notice of that hearing, which had not occurred in Bates. The court therefore did not

address the issue presented in this case: whether postrelease control can be clarified

by following the proper procedures under R.C. 2929.191 when the issue was not raised

on direct appeal. We also note that the court declined to “address the effect of the

trial court’s improper imposition of postrelease control on the [Adult Parole

Authority’s] ability to supervise Bates based on the facts and arguments” before them.

Id. at 30-31.

{¶18} It can be argued that the majority in Bates believed that R.C. 2929.191 was not operative after Harper. The opinion indicates that the majority did not agree

with the second dissenter’s statements that the court “need look no further than the

plain language of Ohio’s statutes” to decide the case, and that if the court “simply

follow[ed] the statutes,” the case would be easily resolved. Id. at ¶ 45 and 66 (Dewine,

J., dissenting). Further, if the majority believed that the statute still applied, it could

have remanded the case to the trial court to hold the hearing required by R.C.

2929.191(C), rather than conclude that the issue was not properly before it.

{¶19} Nevertheless, the court did not hold that R.C. 2929.191 does not apply post-Harper, and specifically noted that the trial court failed to follow the procedures

7 OHIO FIRST DISTRICT COURT OF APPEALS

in R.C. 2929.191. Following Harper, the failure to properly impose postrelease control

renders the sentence voidable in that regard, and not void, meaning that the parties

must raise it on direct appeal. But that requirement does not necessarily mean that

the statute is no longer operative.

{¶20} In this case, we agree with state’s position that R.C. 2929.191 applies,

and that the trial correctly followed the procedures in the statute. Harris has not

claimed that the statue is unconstitutional or repealed. Rather, he argues that after

Harper, the doctrine of res judicata renders it inoperative.

{¶21} This court cannot simply ignore the statute or declare it inoperative.

The General Assembly’s role is to enact legislation. See In re Estate of Centorbi,

,

,

, ¶ 11. The judiciary does not share the

responsibility of establishing legislative policies or second-guessing those policies.

Courts are charged with determining the constitutionality of statutes enacted by the

legislature. Stetter v. R.J. Corman Derailment Servs., LLC,

, 2010-

Ohio-1029,

, ¶ 35; State v. Delvallie,

,

(8th Dist.). “The judgment of the judiciary is not to be substituted for that of the

legislature when an issue is fairly debatable so that reasonable minds can differ.” Cent.

Motors Corp. v. Pepper Pike,

,

(1995),

quoting Gerijo v. Fairfield, 7o Ohio St.3d 223, 229,

(1994).

{¶22} The legislature enacted R.C. 2929.191 in response to the Ohio Supreme

Court’s cases holding that the failure of the trial court to properly impose postrelease

control rendered that part of the sentence void. That line of cases has now been

overruled, but the statute is still in place. The legislature has not amended or repealed

it, and the Supreme Court has not squarely addressed its continued viability, noting

instead only that the procedure was not properly followed in Bates. We conclude that

R.C. 2929.191 remains viable, allowing the court to address the issue of postrelease

control postsentence.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶23} We cannot substitute our judgment for that of the legislature. We note

that two other appellate courts have also indicated that the statute still applies after

Harper. See State v. Patterson, 3d Dist. Hancock No. 5-20-32,

; State

v. Barnette, 7th Dist. Mahoning No. 19 MA 0114,

. Consequently, we

hold that the trial court did not err in finding that R.C. 2929.191 applied to Harris and

following the procedures set forth in the statute. We overrule Harris’s sole assignment

of error and affirm the trial court’s judgment.

Judgment affirmed.

ZAYAS and CROUSE, JJ., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

9