State v. Gannon
2016 Ohio 1007
Ohio Ct. App.2016Background
- Terry L. Gannon Jr. pleaded guilty to four trafficking counts (one second-degree, three third-degree); written plea form stated post-release control could be "for up to (3-5) years."
- At the change-of-plea hearing the court discussed post-release control but used inconsistent language (stated the second-degree felony carried three years, then said the defendant “may” have to serve post-release control). Plea was accepted.
- At sentencing the court did not notify Gannon about post-release control, but the journal entry imposed an aggregate eight-year prison term with a mandatory three-year post-release control term.
- Gannon appealed earlier on different grounds; that appeal was resolved. He later filed a motion for resentencing arguing the plea/sentence were void because of defective post-release control advisements. The trial court denied the motion; Gannon appealed.
- The appellate court considered (1) whether the defective plea advisement rendered the plea void or merely voidable (affecting res judicata), and (2) whether failure to notify at sentencing rendered the sentence (or part of it) void, reviewable as plain error.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gannon) | Held |
|---|---|---|---|
| Whether the court's failure at the plea hearing to properly advise of mandatory post-release control voided the plea | The prior proceedings and plea substantially complied; any defect is not voiding and is subject to res judicata | The incomplete/misleading plea advisement rendered the plea (and ensuing sentence) void | Court: Error at plea hearing was failure to comply with Crim.R. 11 and made the plea voidable, not void; res judicata bars raising it now (assignment 2 overruled) |
| Whether the court’s failure at sentencing to notify defendant of mandatory post-release control rendered the sentence (or part) void and requires remand | The State argued notice at plea hearing sufficed | Gannon urged that no sentencing notice occurred and the post-release control imposition is therefore invalid | Court: Failure to notify at sentencing was plain error; the portion imposing post-release control is void. Reversed and remanded for a limited resentencing hearing on post-release control (assignment 1 sustained) |
Key Cases Cited
- State v. Fischer, 942 N.E.2d 332 (Ohio 2010) (sentence that omits statutorily mandated post-release control is void)
- State v. Jordan, 817 N.E.2d 864 (Ohio 2004) (trial court must notify defendant of post-release control at sentencing)
- State v. Szefcyk, 671 N.E.2d 233 (Ohio 1996) (res judicata bars claims that were or could have been raised on direct appeal)
- Dunbar v. State, 992 N.E.2d 1111 (Ohio 2013) (defects in voluntariness of plea render plea voidable rather than void)
- Woods v. Telb, 733 N.E.2d 1103 (Ohio 2000) (discusses timing of post-release control notification; later clarified by Jordan)