State v. Hilliard
2011 Ohio 5895
Ohio Ct. App.2011Background
- Hilliard was convicted of aggravated murder, aggravated robbery, felonious assault, having weapons under disability, and two counts of murder, with underlying firearm specifications; sentenced to life plus three years for firearm specs; affirmed on direct appeal.
- In 2010, the trial court held a resentencing to correct a post-release control error and imposed a post-release control term described as 'LIFE.'
- In 2011, a second resentencing hearing occurred; the court informed Hilliard that a life term of post-release control would apply if released, and stated mandatory five years for aggravated robbery and three years for weapons under disability, but the sentencing entry later again imposed life post-release control.
- Hilliard appealed arguing the court could not impose life-term post-release control; the State conceded life-term post-release control was improper.
- Statutory framework: RC 2967.28(F)(4)(c) provides that, for multiple sentences, post-release control period runs concurrently and is the same expiry date; aggravated murder is a special felony subject to parole, not post-release control; RC 2967.28 sets five or three-year mandatory periods and discretionary up to three years, but not a life term.
- Regarding weapons under disability, RC 2967.28(B)(3) can apply if the offender caused or threatened physical harm during the offense; RC 2967.28(C) allows discretionary up to three years; the court concluded the three-year mandatory period applies only if harm/threat occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a life-term post-release control is authorized for aggravated murder. | Hilliard argues life term not provided by statute. | State agrees life-term is improper. | Life-term post-release control not authorized. |
| Whether the mandatory three-year post-release control for having weapons under disability applies if harm occurred during the offense. | Hilliard contends correct period is discretionary three years. | Hilliard’s conduct could trigger mandatory three years under RC 2967.28(B)(3). | If harm/threat occurred, mandatory three-year period applies; otherwise, discretionary applies. |
Key Cases Cited
- State v. Gordon, 2010-Ohio-6308 (9th Dist. 2010) (affirms parole-based treatment of aggravated murder as non-post-release-control felony)
- State v. Bray, 2011-Ohio-4660 (2nd Dist. 2011) (clarifies scope of RC 2967.28(B)(3) applying when physical harm was caused or threatened)
- State v. Ketterer, 2010-Ohio-3831 (Ohio Supreme Court 2010) (remands for proper imposition of post-release control under RC 2929.191)
- State v. Taylor, 2011-Ohio-1158 (9th Dist. 2011) (remand/review guidance on post-release control imposition)
- State v. Capers, 2011-Ohio-2443 (9th Dist. 2011) (remands for proper imposition of post-release control under RC 2929.191)