2013 Ohio 1453
Ohio Ct. App.2013Background
- Kalinowski pled guilty in 2002 to 36 counts of rape (first-degree felonies) and one count of importuning; sentenced to 10 years on each rape count, concurrent with each other and consecutive to one year on importuning.
- Trial court did not advise Kalinowski of postrelease control at sentencing; sentencing entry stated postrelease control was part of the sentence under R.C. 2967.28.
- This court previously affirmed Kalinowski’s convictions on appeal in State v. Kalinowski, 2002-Ohio-6494.
- Kalinowski was released from prison in June 2012 and remains under postrelease control supervision.
- On July 26, 2012, Kalinowski moved to terminate postrelease control, arguing improper imposition voids that portion of the sentence and that resentencing was not available since he had already been released.
- The State conceded postrelease control was not properly imposed, but the trial court summarily denied Kalinowski’s motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was postrelease control properly imposed? | Kalinowski contends no proper imposition occurred. | Kalinowski argues postrelease control should be corrected as void. | Postrelease control was not properly imposed; void. |
| Can a void postrelease-control sentence be corrected after completion of incarceration? | Bezak/Bloomer rationale; court can correct void sentence. | Because sentence has been served, resentencing to correct is impermissible. | Court may address void imposition; correcting remedy required. |
| What remedy is appropriate when postrelease control is not properly imposed and the defendant has completed his prison term? | Discharge from postrelease control is appropriate. | Not subject to resentencing since already released. | Remand with order discharging Kalinowski from postrelease control. |
| Is a writ of habeas corpus an appropriate vehicle to challenge improper postrelease control? | Habeas not applicable where offender is not in custody. | Habeas is adequate to challenge ongoing postrelease control. | Writ of habeas corpus not appropriate; sustain assignment and order discharge. |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (mandatory nature of postrelease-control notification and incorporation in sentence)
- State v. Bloomer, 122 Ohio St.3d 200 (2009-Ohio-2462) (remediation for improper imposition when defendant cannot be resentenced)
- State v. Boswell, 121 Ohio St.3d 575 (2009-Ohio-1577) (void sentencing and correction mandated when imposition flawed)
- State v. Bezak, 114 Ohio St.3d 94 (2007-Ohio-3250) (sentence void to the extent it does not comply with postrelease-control mandates)
- Hernandez v. Kelly, 108 Ohio St.3d 395 (2006-Ohio-126) (habeas corpus not proper vehicle for improper postrelease control in custody context)
- State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353 (2006-Ohio-5795) (void sentence and authority to correct under certain postrelease-control scenarios)
- State v. Simpkins, 117 Ohio St.3d 420 (2008-Ohio-1197) (corroborates correction of void postrelease-control imposition)