State v. Cvijetinovic
2013 Ohio 5121
Ohio Ct. App.2013Background
- Cvijetinovic was sentenced in 1999 across three cases: CR-368577 (4 years, consecutive to CR-368579), CR-368578 (7 years total), and CR-368579 (12 years total with gun specs).
- In 2003, this court remanded for resentencing; the trial court imposed the same aggregate 16-year term.
- At resentencing, the court detailed sentences and stated Cvijetinovic would be subject to postrelease control but failed to properly notify him of postrelease-control consequences and did not include the postrelease-control order in the journal entries.
- In 2011, after receipt of a DOC notice, the court ordered postrelease control via video hearing, applying it to CR-368579 but not to CR-368577/CR-368578.
- Cvijetinovic then sought to vacate the postrelease-control imposition, arguing the sentence had been completed and the notification was insufficient.
- The court of appeals reversed and remanded to remove the five-year postrelease-control term on CR-368579 and to consider postrelease control on CR-368577 and CR-368578.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether postrelease control was properly notified at sentencing. | Cvijetinovic | Cvijetinovic | Not properly notified; nunc pro tunc correction not proper for invocation of postrelease control. |
| Whether postrelease control could be imposed after Cvijetinovic completed the sentence for the offense. | Cvijetinovic | State | Postrelease control cannot be imposed on offenses already completed when journal entries are ambiguous and remaining term has been served. |
| Whether ambiguity in journal entries affected the order of serving sentences and postrelease control. | Cvijetinovic | State | Ambiguity favors Cvijetinovic; the sentences should be construed to determine whether postrelease control was properly imposed. |
| Whether res judicata barred the collateral attack on the postrelease-control imposition. | State | Cvijetinovic | Res judicata does not bar because a void sentence can be attacked; the issue is the voidness of the postrelease-control imposition. |
Key Cases Cited
- State v. Qualls, 131 Ohio St.3d 499 (2012-Ohio-1111) (required statutorily compliant notification or nunc pro tunc correction when entry omits it; correction may occur if term not served yet)
- State v. Bloomer, 122 Ohio St.3d 200 (2009-Ohio-2462) (notification details and consequences of violating postrelease control must be conveyed)
- State v. Bundy, 2013-Ohio-2501 (7th Dist. Mahoning No. 12 MA 86) (clarifies postrelease-control questions when sentencing entries are ambiguous)
- State v. Douse, 8th Dist. Cuyahoga No. 98249 (2013-Ohio-254) (ambiguity in journal entries; nunc pro tunc corrections not applicable in some scenarios)
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (void sentences may be attacked; res judicata does not bar collateral review of void sentencing)
- State v. Broughton, 2007-Ohio-5312 (6th Dist. Lucas Nos. L-06-1213 and L-06-1214) (ambiguity in reciprocal sentencing entries; construe in defendant's favor)