State v. Messenger
2011 Ohio 2017
Ohio Ct. App.2011Background
- Appellant pled guilty to five counts of rape (five first-degree felonies) and was sentenced May 24, 2004 with a claimed mandatory five-year post-release control period.
- Original judgment entry (June 3, 2004) misstated that post-release control was optional up to five years.
- At sentencing, Appellant was advised that post-release control was mandatory for five years.
- On April 14, 2010, Appellant moved to impose a valid sentence; June 2, 2010 a re-sentencing hearing occurred.
- Judgment entry (June 4, 2010) corrected the order to reflect mandatory five-year post-release control.
- Appellant timely appealed challenging the post-release control procedure and timing of re-sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether void judgment due to improper post-release control notice | Messenger contends the sentence is void for failure to comply with post-release-control requirements | Messenger argues improper imposition/omission renders judgment defective | Assignments I–III overruled; correction via nunc pro tunc entry proper |
| Whether trial court lacked jurisdiction to impose mandatory post-release control | Messenger asserts courts cannot correct after term completion | Court could correct before term completion; jurisdiction exists | Jurisdiction existed to re-sentenced and impose post-release control |
| Whether the error was clerical and remediable by nunc pro tunc entry or required de novo review | Messenger relies on de novo review due to earlier error | Error was clerical after proper advisement; corrected nunc pro tunc allowed | Nunc pro tunc correction proper under Qualls/Fischer framework; no de novo hearing required |
| Whether re-sentencing violated Crim.R. 32 delay provision or constitutional rights | Delay in re-sentencing violated Crim.R. 32 and constitutional rights | No unnecessary delay; correction timely and limited to post-release term | No unnecessary delay; Crim.R. 32 not violated; sentence affirmed |
| Whether the sentence should be reversed due to timing after guilty plea | Six-year delay invalidates sentence under due process considerations | Bezak/Fischer framework allows correction without voiding entire sentence | Fifth assignment overruled; sentence affirmed |
Key Cases Cited
- State v. Singleton, 124 Ohio St.3d 173 (2009-Ohio-6434) (retroactive remedy for post-release-control errors; de novo/specified procedures)
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (liability to impose statutorily mandated postrelease control; remedy limited to affected portion)
- State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353 (2006-Ohio-5795) (permissible to correct invalid sentence to include post-release-control term)
- State v. Bezak, 114 Ohio St.3d 94 (2007-Ohio-3250) (Bezak framework for proper imposition of post-release control)
- State v. Lee, 2010-Ohio-1704 (Ohio 2010) (conflict on correction method; later consistent with Fischer/Qualls approach)