State v. Ballou
2011 Ohio 2925
Ohio Ct. App.2011Background
- Ballou was convicted in 2003 of possession of crack cocaine, trafficking at least 100 grams, and possession of criminal tools; counts 1 and 2 carried major drug offender specifications and ran concurrently with count 3 for a total 10-year term, but the court failed to inform him of postrelease control.
- On direct appeal, the conviction for weight of the evidence was affirmed in 2004, and Ballou later sought post-sentence relief via a pro se motion to correct the void sentence.
- In 2010, the trial court held a de novo sentencing hearing, imposing the same 2003 sentence and informing Ballou of a mandatory five-year postrelease control for counts 1 and 2, with a discretionary period up to three years on count 3.
- Ballou argued (1) the trial court erred by not merging counts 1 and 2 as allied offenses, and (2) the court lacked authority to sentence count 3 at the de novo hearing because that term had expired.
- The appellate court held that the first assignment of error was overruled, and that the second assignment was moot after determining the postrelease-control issue could be corrected without resentencing on the entire sentence.
- The court remanded for execution of sentence, affirming the judgment and noting the postrelease-control terms on counts 1 and 2 expire last.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counts 1 and 2 were allied offenses and should have merged | Ballou argues the de novo hearing required merger of counts 1 and 2 | Ballou contends resentencing reopens all sentence elements due to de novo nature | Overruled; no merger required at de novo |
| Whether the court had authority to sentence count 3 at de novo given expiration of its original term | Ballou claims lack of authority for count 3 sentence at de novo | Ballou contends postrelease-control issue improper at de novo for count 3 | Moot; issue limited to postrelease-control correction, harmless error |
Key Cases Cited
- State v. Bezak, 114 Ohio St.3d 94 (2007-Ohio-3250) (postrelease control must be properly imposed at sentencing; void sentence triggers de novo hearing)
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (limits Bezak—only void portion corrected, not entire sentence; proper imposition of postrelease control)
- Durain v. Sheldon, 122 Ohio St.3d 582 (2009-Ohio-4082) (concurrent postrelease-control periods; multiple periods run concurrently)
- State v. Poole, 2011-Ohio-716 (8th Dist.) (time to challenge a conviction based on allied offenses is by direct appeal, not resentencing)
- State v. Padgett, 2011-Ohio-1927 (8th Dist.) (res judicata applies to non-void aspects of conviction even when sentence is void)