State v. Ross
2019 Ohio 323
Ohio Ct. App.2019Background
- Michael Ross was convicted by jury in 2009 of multiple offenses; initial aggregate sentence was 9.5 years plus $377,000 restitution and five years post-release control.
- This court repeatedly reversed and remanded portions of Ross’s sentence for failures in offense-level adjustments and allied-offense analysis, producing several inconsistent sentencing entries and nunc pro tunc orders between 2012–2017.
- Ross was released from prison on November 18, 2015; the trial court later issued entries imposing a six-year aggregate term, post-release control, and restitution, but multiple entries failed to comply with Crim.R. 32(C) because they did not state the fact of conviction for each count.
- The trial court amended an entry nunc pro tunc in November 2017 to change post-release control from five years to three years; Ross did not appeal that amendment.
- Ross moved to vacate and terminate post-release control and to vacate restitution/fines/costs for lack of a restitution hearing; the trial court denied the motion and Ross appealed.
Issues
| Issue | Ross’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether the trial court’s imposition of five years post-release control was void and uncorrectable because Ross wasn’t advised of violation consequences | Ross: PRC term should have been three years for a non-sex F2 and court’s failure to properly advise renders PRC void; too late to correct after release | State: Correction and clarification by the trial court moot or resolved; court may correct clerical/sentencing errors; parties don’t show ongoing collateral consequences | Court: Moot — Ross completed his sentence and has not shown any collateral disabilities or pending PRC enforcement, so the issue is moot and overruled |
| Whether the trial court erred by ordering $377,000 restitution without holding a hearing to determine amount of loss | Ross: Trial court failed to hold required restitution hearing before imposing $377,000 | State: Trial court’s prior restitution order is part of a sentence that has not been rendered in a valid Crim.R.32(C) judgment; current challenges are premature | Court: Premature — because no valid, final judgment of conviction complying with Crim.R.32(C) exists, restitution challenge cannot be considered now; assignment overruled |
Key Cases Cited
- State v. Wilson, 41 Ohio St.2d 236 (1975) (appeal is moot where defendant completed sentence and no collateral disabilities are shown)
- State v. Lester, 130 Ohio St.3d 303 (2011) (Crim.R. 32(C) requires fact of conviction, sentence, judge’s signature, and clerk’s journal entry time stamp)
- State v. Danison, 105 Ohio St.3d 127 (2005) (restitution is part of the sentence)