2018 Ohio 4562
Ohio Ct. App.2018Background
- Willis Smith was convicted by jury of third-degree felony gross sexual imposition on October 31, 2014 and sentenced November 6, 2014 to three years in prison.
- At sentencing the court orally advised Smith he was subject to a mandatory five-year term of postrelease control.
- The written sentencing entry, however, stated postrelease control must be imposed “up to a maximum period of five (5) years.”
- Smith was released from prison on September 26, 2017 and moved to terminate/vacate postrelease control, arguing the phrase “up to” made the postrelease control term void.
- The trial court acknowledged the wording was inaccurate but denied relief because Smith had been released; Smith appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the phrase “up to” in the written sentencing entry rendered the mandatory five-year postrelease control term invalid | State: the entry, read with the oral pronouncement, sufficiently notified Smith of mandatory five-year postrelease control | Smith: the words “up to” create ambiguity and fail to properly impose a mandatory postrelease control term in the entry, rendering it void under Grimes | Court: Oral advisement plus written entry (which used “must”/“shall” language) sufficiently imposed mandatory five-year postrelease control; the phrase “up to” was unnecessary and will be removed nunc pro tunc |
Key Cases Cited
- State v. Grimes, 151 Ohio St.3d 19 (Ohio 2017) (trial court must notify offender at sentencing and include mandatory postrelease-control information in entry)
- State v. Jordan, 104 Ohio St.3d 21 (Ohio 2004) (trial court duty to notify offender about postrelease control at sentencing)