State v. Falkenstein
2011 Ohio 5188
Ohio Ct. App.2011Background
- Falkenstein was convicted in 2003 of 41 counts of rape of a child under 13 and sentenced to consecutive life terms with parole eligibility after 20 years.
- The sentencing entry stated postrelease control was part of the prison sentence; the journal entry did not address postrelease control consequences.
- In 2010 Falkenstein, pro se, moved to set aside/vacate or resentence for a void sentence due to failure to advise on mandatory postrelease control and its consequences.
- The state conceded the postrelease-control notice was improper and that Falkenstein should be resentenced.
- The trial court denied the motion solely because Falkenstein was serving a life sentence, prompting this appeal.
- This court concluded the sentence was void for failure to properly impose postrelease control and remanded to correct the sentencing entry and consequences of postrelease control.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is five-year postrelease control mandatory here? | Falkenstein argues mandatory five-year postrelease control applies. | State concedes mandatory five years due to R.C. 2967.28(B)(1). | Yes, five years mandatory postrelease control. |
| What remedy is proper for a void sentence—de novo resentencing or correction/remand? | Falkenstein seeks remand for resentencing under Fischer and related cases. | State agrees on remand for correction of postrelease-control term. | Remand with correction under Fischer and related authorities. |
| Is the proper procedure under 2929.191 or de novo sentencing for pre-2006 sentences lacking notice? | Singleton Bezak required de novo sentencing for pre-2006 sentences missing postrelease notice. | Fischer limits the new hearing to proper imposition of postrelease control, not full de novo sentencing. | For pre-2006 sentences, correction can occur without full de novo sentencing; remand to correct postrelease terms. |
Key Cases Cited
- State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124 (2010-Ohio-2671) (mandate postrelease control five-year term for felony first degree/sex offenses)
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (limits new hearing to proper imposition of postrelease control; remand available)
- State v. Singleton, 124 Ohio St.3d 173 (2009-Ohio-6434) (pre-2006 sentences lacking postrelease notice require de novo sentencing per syllabus)
- State v. Bezak, 114 Ohio St.3d 94 (2007-Ohio-3250) (offender entitled to de novo sentencing for postrelease-control notice defects)