State Banks
2015 Ohio 5372
Ohio Ct. App.2015Background
- In 2007 Andre Banks caused a serious DUI crash; he pled guilty in 2009 to three counts (including aggravated vehicular homicide) and was sentenced to an aggregate 13-year prison term.
- The sentencing entry ordered court costs "in an amount to be determined" and (in the entry) stated three years mandatory post-release control, but the written notice signed by Banks incorrectly listed five years and did not indicate mandatory/discretionary; the trial court did not explain post-release control at the February 3, 2009 sentencing hearing.
- Banks pursued multiple postconviction and appellate filings raising ineffective-assistance, sentencing, and evidentiary issues; several prior appeals and motions were denied or affirmed by this court.
- In February 2015 Banks moved for resentencing asserting (1) the court failed to notify him that failure to pay costs could lead to court-ordered community service, (2) the court failed to properly notify him of mandatory post-release control, and (3) trial counsel was ineffective for not objecting to the costs notification.
- The trial court denied relief as barred by res judicata/law of the case; Banks appealed. The Tenth District affirmed, concluding costs claims were precluded and post-release control notice, viewed under the totality of the circumstances, was sufficient so the sentence was not void.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sentencing court erred by taxing court costs "in an amount to be determined" without notifying that failure to pay may result in court-ordered community service | State: costs were properly imposed and are discretionary assessments; no relief warranted | Banks: lack of specific oral notice at sentencing about consequences of nonpayment (community service) renders costs improper/void | Court: costs argument precluded by res judicata; improper notice re: costs does not render sentence void; assignments overruled |
| Whether post-release control notification was defective so the sentence (or portion) is void | State: post-release control was reflected in the judgment entry and other materials; totality of circumstances shows Banks was notified | Banks: sentencing hearing lacked proper oral notification; written notice conflicted (five years) and was ambiguous about mandatory status | Court: under totality of circumstances (plea hearing, plea form, judgment entry) Banks received adequate notice of mandatory three-year post-release control; sentence not void |
| Whether trial counsel was ineffective for failing to object at sentencing to the costs language | State: claim could have been raised earlier and is barred; counsel's omission did not create a void sentence | Banks: counsel should have objected to indefinite costs language and lack of notice regarding consequences | Court: ineffectiveness claim barred or without merit as it challenged an issue that could have been raised on direct appeal; assignment overruled |
Key Cases Cited
- Grava v. Parkman Twp., 73 Ohio St.3d 379 (1995) (explains claim and issue preclusion under res judicata)
- Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193 (1983) (requirement that identical issue be actually litigated to apply collateral estoppel)
- State v. Fischer, 128 Ohio St.3d 92 (2010) (holding that sentences imposing post-release control without proper notification may be void and subject to correction)
- State v. Joseph, 125 Ohio St.3d 76 (2010) (explaining costs are civil assessments and improper imposition of costs is not grounds to declare sentence void)
- State v. Jackson, 141 Ohio St.3d 171 (2014) (res judicata bars issues that were or could have been raised on direct appeal in criminal cases)