State v. Kish
2014 Ohio 699
Ohio Ct. App.2014Background
- In 2003 Kish pleaded guilty to involuntary manslaughter in CR-431285 and aggravated robbery in CR-432975.
- Sentences: ten years for involuntary manslaughter and five years for aggravated robbery, with the ten-year term to run consecutive to the five-year term.
- Journal entry improperly notified Kish about postrelease control at sentencing.
- Kish moved in 2012 to correct the sentence; in 2013 a limited hearing was held to address postrelease control.
- State claimed Kish had already served the five-year CR-432975 sentence and was serving the ten-year CR-431285 sentence, so PRC should be imposed on CR-431285.
- Trial court credited Kish with having served CR-432975 and imposed five years of PRC on CR-431285; Kish appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PRC was properly imposed in both cases | Kish: both cases improperly subject to PRC since sequence unclear. | State: PRC correctly imposed on CR-431285 after determining served sentence in CR-432975. | PRC was only imposed on CR-431285; overruled Kish's first argument. |
| Is the sequence of multiple sentences determinative for PRC | Kish: merged terms make it impossible to know which served first. | State: sequence determined by sentencing journal entries; holds that the order is ascertainable. | Journal entries govern service; remand to determine sequence and impose PRC on unserved sentence. |
| Whether Cvijetinovic governs the sequence issue over lower-case-first doctrine | Kish: lower-numbered case served first; PRC could differ. | State: Cvijetinovic rejects lower-case-first; journal entries control service order. | Rejects lower-case-first; adopts Cvijetinovic approach; remand for proper sequencing and PRC. |
Key Cases Cited
- State v. Cvijetinovic, 8th Dist. Cuyahoga No. 99316 (2013-Ohio-5121) (journal entries govern how sentences are served; sequencing must be clear)
- State v. Holdcroft, 137 Ohio St.3d 526 (2013-Ohio-5014) (sentencing journal entries dictate service order for consecutive sentences)
- State v. Holdcroft, 973 N.E.2d 334 (2012-Ohio-3066) (emphasizes journal-entry-based sequencing in multi-case sentences)