State v. Burns
2012 Ohio 1626
Ohio Ct. App.2012Background
- Brown County 2004 sentencing: five counts of sexual battery, concurrent 3-year terms, with post release control language stated as mandatory 'up to five years' rather than a fixed five years.
- Appellant Burns released from Brown County prison in 2007 and placed on post release control.
- In Highland County (2009), Burns was convicted of grand theft and received 17-month sentence plus the remaining post release control of 34 months.
- Burns did not appeal the Brown County sentence in 2004.
- In 2010 Burns moved in Highland County to vacate the post release control portion, arguing the Brown County post release control was void; Highland denied.
- Brown County in 2011 acknowledged the 2004 imposition was defective and issued a nunc pro tunc correction to impose post release control, but Burns’ underlying term had expired, leaving jurisdiction questionable; subsequently, Highland County case law vacated the post release control portion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of the Brown County nunc pro tunc | Burns contends the nunc pro tunc correction is invalid. | State contends the correction is permissible collateral remedy and proper under governing rules. | Nunc pro tunc invalid; post release control void; vacate |
| Whether the post-release-control portion of Burns' Highland County sentence should be vacated | Burns argues the post release control sanction was void and should be vacated. | State argues the issue was already resolved or should be addressed in Brown County; collateral remedy improper. | Vacate post release control portion; remand; discharge |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (void post-release control sentence may be reviewed; fixes limited to post-release term)
- State v. Portis, 2011-Ohio-2429 (2d Dist. 2011) (void post-release control requires correction; remedy may include vacating related sentence)
- State v. Bezak, 114 Ohio St.3d 94 (2007-Ohio-3250) (post-release-control term must be statutorily mandated to be valid)
- State v. Gingell, 128 Ohio St.3d 444 (2011-Ohio-1481) (supports remedy to address void sentencing schemes)
- State v. Simpkins, 117 Ohio St.3d 420 (2008-Ohio-1197) (jurisdictional considerations in post-release-control corrections)
- State v. Ables, 2011-Ohio-5873 (Mercer App. 2011) (jurisdiction and correction of void sentences when underlying term expired)