2019 Ohio 2658
Ohio Ct. App.2019Background
- Kenneth Bostic Jr. was sentenced on Jan. 22, 2016 for burglary and received an additional 1,277 days for committing that offense while purportedly on postrelease control from three prior cases.
- The prior three cases had nunc pro tunc journal entries dated Aug. 18, 2006, stating Bostic was given postrelease control notice under R.C. 2929.19(B)(3) and R.C. 2967.28.
- Bostic did not appeal his 2016 sentence but later moved (May 10, 2018) to vacate the judicial sanction for violating postrelease control, arguing the prior postrelease control terms were invalidly imposed.
- He relied on State v. Grimes (Ohio 2017) which clarified that sentencing courts must state whether postrelease control is mandatory or discretionary, its duration, that the Adult Parole Authority will administer it, and that violations carry statutory consequences.
- The trial court denied the motion, holding Grimes is not retroactive and that nunc pro tunc entries and presumptions about oral sentencing compliance permitted proper imposition; Bostic appealed.
- The Sixth District affirmed, finding the court properly relied on precedent allowing nunc pro tunc corrections and presuming the sentencing court gave proper oral notice at the original hearings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Grimes applies retroactively to invalidate prior postrelease control notices | Grimes should apply, so prior postrelease control was invalid and Bostic cannot be sanctioned for a claimed violation | Grimes is not retroactive; prior law governed at sentencing | Court: Grimes not applied retroactively; denial affirmed |
| Whether nunc pro tunc entries and presumptions about oral notice can validate postrelease control after sentence served | Nunc pro tunc entries cannot impose postrelease control after sentences were served; the entries are insufficient under Grimes | State: If oral notice occurred at sentencing, a nunc pro tunc entry correcting the journal is proper under Crim.R. 36 even after release | Court: Nunc pro tunc correction permissible; presumption that oral notice occurred; sanction stands |
Key Cases Cited
- State v. Grimes, 85 N.E.3d 700 (Ohio 2017) (clarified mandatory sentencing language required for postrelease control)
- State v. Jordan, 817 N.E.2d 864 (Ohio 2004) (trial court must notify offender of postrelease control at sentencing and include notice in journal)
- State v. Qualls, 967 N.E.2d 718 (Ohio 2012) (nunc pro tunc correction of journal permitted when oral notice was given at sentencing)
- State v. Murray, 979 N.E.2d 831 (Ohio Ct. App. 2012) (discusses sufficiency of reference to postrelease control statutes as valid notice)