State v. Bach
2017 Ohio 7262
Ohio Ct. App.2017Background
- In 2004 Jesse Bach was convicted of murder, felonious assault (with a firearm specification), and having weapons while under disability; sentenced to an aggregate 26 years to life.
- Bach filed multiple postconviction and collateral motions over the years (to vacate costs, suspend/waive costs, merge allied offenses, vacate sentence); those motions were denied and not appealed.
- In June 2016 Bach filed a pro se motion to correct sentence claiming (1) allied-offense merger error, (2) failure to consider ability to pay financial sanctions, (3) failure to advise that nonpayment of costs could lead to community service, and (4) improper post-release control notification/duration.
- The trial court overruled the motion; Bach appealed pro se. The State conceded error only on post-release control.
- The Court of Appeals held that the post-release control period imposed in the journal entry (five years for felonious assault) was incorrect under R.C. 2967.28 and must be corrected to three years; other claims were barred by res judicata.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Post-release control notice/duration | State: sentence valid except for post-release control clerical error conceded | Bach: trial court failed to give proper oral and journalized notice and listed wrong duration (5 yrs vs. statutory 3 yrs) | Court: Error as to post-release control; remand for resentencing limited to correcting post-release control (sustained in part) |
| Court costs notice (community service warning) | State: sentencing entry final; Bach failed to timely appeal earlier and is barred | Bach: court failed to advise that failure to pay costs could lead to community service per R.C. 2947.23 | Court: Trial court erred in notice but claim is barred by res judicata (overruled on merits) |
| Consideration of ability to pay financial sanctions | State: issue could have been raised on direct appeal and is barred | Bach: trial court failed to consider present/future ability to pay before imposing restitution/costs | Court: Even if consideration was inadequate, claim is barred by res judicata (overruled on merits) |
| Ineffective assistance of trial counsel at sentencing | State: ineffective-assistance claim could have been raised on direct appeal by new appellate counsel | Bach: counsel failed to object to the sentencing errors above | Court: Claim barred by res judicata under Cole; overruled |
Key Cases Cited
- State v. Jordan, 104 Ohio St.3d 21 (trial court must provide postrelease-control notice at sentencing and journalize it)
- State v. Threatt, 108 Ohio St.3d 277 (sentencing entry is final appealable order as to costs)
- State v. Smith, 131 Ohio St.3d 297 (time to appeal R.C. 2947.23(A)(1) notice runs from sentencing entry)
- State v. Cole, 2 Ohio St.3d 112 (res judicata bars postconviction claims of trial counsel incompetence that could be resolved on the record)