State v. Peck
2013 Ohio 5526
| Ohio Ct. App. | 2013Background
- Peck pleaded guilty to felonious assault (2nd degree) and domestic violence (1st degree misdemeanor) in Mahoning County.
- Sentence at sentencing: six years for felonious assault and 12 months for domestic violence, to be served concurrently, exceeding the DV maximum of 180 days.
- Judge noted mandatory three-year postrelease control but gave no additional notice at sentencing.
- A November 1, 2012 document claimed notice of postrelease control but was not signed by the judge and its presentation at sentencing is unclear.
- Judgment entry on November 1, 2012 again awarded six years (felony) and 12 months (DV) with postrelease control; appeal followed.
- Three assignments of error: unlawful DV term, improper postrelease control notice, and potential allied offenses; court remanded for resentencing on all issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Allied offenses: merger at sentencing | Peck contends felonious assault and DV are allied offenses; merger required. | State argues no merger determination was made; issues not properly raised at sentencing. | Remanded to assess whether offenses are allied offenses. |
| Domestic-violence term exceeds maximum | Peck correctly notes DV term cannot exceed 180 days. | State concedes error in DV term. | DV sentence vacated; remand for proper sentencing. |
| Postrelease control notices defective | Peck was not properly notified about postrelease control as required. | State argues notices should be in judgment entry; current notice defective. | Remanded for de novo sentencing with proper postrelease-control notices in sentencing and judgment entry. |
Key Cases Cited
- State v. Singleton, 124 Ohio St.3d 173 (Ohio 2009) (mandatory postrelease-control notice required at sentencing and in judgment entry)
- State v. Mock, 187 Ohio App.3d 599 (Ohio App.3d 2010) (notice requirements for postrelease control; must be included in judgment entry)
- State v. Underwood, 124 Ohio St.3d 365 (Ohio 2010) (plain-error review of allied-offense merger not waived by Crim.R. 11 pleadings)
- State v. Johnson, 128 Ohio St.3d 153 (Ohio 2010) (two-step allied-offense analysis: conduct and state of mind)
- State v. Rance, 85 Ohio St.3d 632 (Ohio 1999) (early framework for allied offenses analysis (abstract approach rejected))