2013 Ohio 1805
Ohio Ct. App.2013Background
- Gray filed a procedendo action to compel a final, appealable order with proper imposition of postrelease control in State v. Gray, Cuyahoga C.P. No. CR-369837.
- Respondent Judge McDonnell moved for summary judgment on mootness; attached a December 5, 2012 journal entry ordering Gray to return for a hearing.
- Gray was convicted in 1999 of murder and felonious assault with firearm specifications and was sentenced to 3 years (spec.), 5 years (felonious assault), and 15 years to life (murder), with an order stating the sentence includes extensions by law.
- The appellate court repeatedly remanded for resentencing with proper postrelease-control references, but journal entries thereafter lacked postrelease-control language.
- By 2012, the court held Gray finished service for felonious assault in 2007, making postrelease control moot, and granted summary judgment for Respondent.
- The panel denied the writ of procedendo and ordered Gray to bear costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether procedendo is proper here | Gray | McDonnell | Not proper; mootness and adequate remedy exist |
| Whether postrelease control could be corrected after sentencing | Gray relied on insufficient notice | McDonnell asserts moot or proper remedy via appeal | Appeal, not writ, is proper where notice exists in entry |
| Whether postrelease-control error remains correctable after sentence served | Gray contends error could be corrected | McDonnell argues served sentence moots correction | Moot; once term served cannot be corrected to impose postrelease control |
Key Cases Cited
- State ex rel. Pruitt v. Cuyahoga Cty. Court of Common Pleas, 125 Ohio St.3d 402 (2010-Ohio-1808) (appeal proper when notice exists in sentencing entry)
- State ex rel. Tucker v. Forchione, 128 Ohio St.3d 298 (2010-Ohio-6291) (appeal rather than writ for postrelease control notice)
- State ex rel. Gregley v. Friedman, 2011-Ohio-2293 (8th Dist. No. 96255) (language that sentence includes extensions provided by law suffices)
- State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124 (2010-Ohio-2671) (Carnail lacks postrelease-control reference; distinguishable)
- State v. Simpkins, 117 Ohio St.3d 420 (2008-Ohio-1197) (once sentence served, cannot correct to impose postrelease control)
- State v. Bezak, 114 Ohio St.3d 94 (2007-Ohio-3250) (postrelease-control issues are governed by Supreme Court rules)
- State v. Dresser, 8th Dist. No. 92105 (2009-Ohio-2888) (term expiration governs mootness of postrelease-control errors)
- State v. Cobb, 8th Dist. No. 93404 (2010-Ohio-5118) (mootness; correction after service not allowed)
- State v. Brown, 8th Dist. No. 95086 (2011-Ohio-345) (mootness principle reaffirmed)