2010 Ohio 6384
Ohio Ct. App.2010Background
- O'Connor appeals a Mahoning County Common Pleas Court decision denying his motion to vacate conviction and sentence.
- The underlying case involved four counts of second-degree felony felonious assault with firearm specifications; two counts were pled to and the others dismissed; sentences were originally imposed in 1999.
- The sentencing entry stated only that the defendant had been given notice under R.C. 2929.19(B)(3), not a proper imposition of post-release control.
- On March 26, 2010, O’Connor filed a motion to vacate, arguing the post-release control language was insufficient and that he had completed his prison term.
- The trial court denied the motion on April 30, 2010; on appeal, the Seventh District affirmed in part, reversed in part, and remanded, with the conviction affirmed but the sentence reversed and vacated.
- The court instructed the trial court to note on the sentence record that O’Connor is not subject to post-release control and will not be resentenced because he was released before resentencing could take place.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether post-release control was properly imposed | O’Connor argues the entry lacks proper notice and imposition. | State contends notice in entry suffices to impose post-release control. | Entry insufficient; must be vacated and remanded. |
| Effect of improper post-release control given release before resentencing | If void, entire sentence may be void and resentencing required. | State contends correction possible without vacating guilt. | Remedy is vacating the sentence and noting non-resentencing; guilt not vacated. |
| Whether the guilty plea should be vacated | Guilty plea not vacated. |
Key Cases Cited
- State v. Jordan, 104 Ohio St.3d 21 (2004) (mandatory post-release control notice must be given at sentencing and included in entry)
- State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124 (2010) (insufficient post-release control language voids sentence; remedy to vacate and note non-resentencing)
- State v. Bezak, 114 Ohio St.3d 94 (2007) (void ruling; remedy to vacate sentence and note not subject to resentencing)
- State v. Bloomer, 122 Ohio St.3d 200 (2009) (remedy when post-release control improperly imposed; note non-resentencing)
- State v. Gensley, 110 Ohio St.3d 1474 (2006) (entry must specify imposition of post-release control)
- Watkins v. Collins, 111 Ohio St.3d 425 (2006) (vague incorporation of post-release control insufficient)