2018 Ohio 3508
Ohio Ct. App.2018Background
- In 1997 Brian Bigelow received multiple consecutive felony sentences in Lucas County; the journal entries stated he was “given notice under R.C. 2929.19(B)(3)” but did not expressly use the term “post-release control.”
- The 1997 entries, under then-applicable law, triggered mandatory or discretionary post-release control terms set by R.C. 2967.28 based on degree of offense.
- Bigelow appealed portions of the 1997 convictions; a firearms specification was later vacated by this court.
- In October 2010, at Bigelow’s request, the trial court resentenced him (reducing one term) and issued new entries that expressly set out post-release control terms; by that time Bigelow had already served the prison term for at least one 1997 conviction (CR-97-1554).
- After release, Bigelow committed a new robbery (2011 case CR-11-2596). Because he was subject to post-release control, the court in 2012 imposed a 1,444‑day judicial sanction in CR-97-1554 to be served consecutively to the new sentence.
- Bigelow moved in 2017 to vacate the judicial sanction, arguing (1) the original 1997 entry failed to properly impose post-release control and (2) the 2010 resentencing came after he completed the 1997 sentence so it could not revive or add post-release control; the trial court denied the motion and this appeal followed.
Issues
| Issue | Bigelow's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the 1997 sentencing entry validly imposed post-release control | 1997 entry failed to meet Grimes requirements so post-release control was not validly imposed; sanction void | 1997 entry’s reference to R.C. 2929.19(B)(3) complied with the law then in effect and imposed post-release control | 1997 entry complied with then-existing law; post-release control validly imposed |
| Whether Grimes applies retroactively to void the 1997 entry | Grimes should be applied retroactively to invalidate inadequate prior entries | Grimes is not retroactive; new rule applies only to cases pending on announcement date | Grimes is not retroactive; does not invalidate final sentences decided before Grimes |
| Whether the trial court had jurisdiction to resentence Bigelow in 2010 on CR-97-1554 | 2010 resentencing corrected omission and is valid | 2010 resentencing was lawful and benefited Bigelow (shorter term); invited error/judicial estoppel prevents challenge | Court lacked jurisdiction to resentence CR-97-1554 after Bigelow had served that offense’s prison term; the 1997 entry controls |
| Whether the 2012 judicial sanction for post-release-control violation was proper | Sanction invalid because post-release control was never properly imposed on the 1997 entry or could not be added after sentence served | Sanction proper because original entry imposed post-release control under then-law and 2010 events do not negate authority to impose judicial sanction | 2012 judicial sanction properly imposed based on the valid 1997 entry; motion to vacate denied |
Key Cases Cited
- State v. Grimes, 85 N.E.3d 700 (Ohio 2017) (sets required content for sentencing entries imposing post-release control)
- Ali v. State, 819 N.E.2d 687 (Ohio 2004) (new judicial rulings generally not applied retroactively to final convictions)
- State v. Holdcroft, 1 N.E.3d 382 (Ohio 2013) (trial court cannot resentence to add post-release control after defendant has completed the prison term for that offense)
- State v. Evans, 291 N.E.2d 466 (Ohio 1972) (rule that new judicial rulings do not apply retroactively to final convictions)