State v. Born
2018 Ohio 350
Ohio Ct. App.2018Background
- James Jacob Born pled guilty in 2014 pursuant to a plea agreement to amended third‑degree burglary, two counts of grand theft (with firearm specifications), and one count of safecracking; six other counts were dismissed.
- The trial court imposed consecutive prison terms totaling 77 months (53 months non‑mandatory plus two years mandatory for firearm specifications).
- The February 12, 2014 sentencing entry mistakenly informed Born he was subject to an "optional" three‑year period of postrelease control.
- After Born filed several motions for judicial release, the trial court sua sponte set a resentencing hearing; on June 28, 2017 the court corrected the postrelease control advisory, informing Born the three‑year period was mandatory.
- Born appealed, arguing (1) his plea was not knowing and voluntary because of the erroneous advisory and the resentencing was void, and (2) the court lacked authority to modify the original sentence and could not apply a change in law retroactively.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Born’s plea was involuntary because the original sentencing failed to advise him of mandatory postrelease control | State: trial court followed statutory correction procedures at resentencing; plea issue not raised below and is waived | Born: plea was not knowingly, intelligently, and voluntarily made because he was told postrelease control was "optional" | Waived on appeal for failure to move to withdraw plea; court declined to address plea validity |
| Whether the resentencing to correct postrelease control was void | State: only the postrelease control portion is voidable and may be corrected under R.C. 2929.191; resentencing properly limited | Born: resentencing is void because original sentence misapplied statute | Resentencing valid as to postrelease control; remainder of sentence remains final (Fischer) |
| Whether the trial court had authority to sua sponte correct the postrelease control advisory | State: Singleton and R.C. 2929.191 permit trial courts to correct postrelease control advisories and to hold a hearing | Born: trial court lacked authority to modify original sentence and cannot retroactively change law | Trial court had authority to correct the advisory under Singleton and R.C. 2929.191; no impermissible retroactive application |
| Whether the correct period is mandatory three years or different | State: statutory provisions in effect at sentencing and resentencing require a mandatory three‑year term for third‑degree burglary as an offense of violence | Born: argued change in law applied retroactively | Court held the applicable versions of R.C. 2967.28 required a mandatory three‑year term; resentencing applied existing law |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (2010) (only the improper postrelease control portion of a sentence is void; remainder survives)
- State v. Singleton, 124 Ohio St.3d 173 (2009) (trial courts must follow R.C. 2929.191 procedures to correct improper postrelease control)
- State v. Grimes, 151 Ohio St.3d 19 (2017) (advisements in a corrected entry that reference R.C. 2967.28 satisfy postrelease control notice requirements)