State v. Viccaro
2013 Ohio 3437
Ohio Ct. App.2013Background
- In 2004 Viccaro pleaded guilty to kidnapping and aggravated theft and received a three-year prison term; he was later resentenced and told at a hearing he would be subject to five years of postrelease control.
- The trial court's resentencing journal entry did not set out the consequences for violating postrelease control.
- After completing his underlying sentence, Viccaro violated postrelease control and was indicted for escape; he pleaded guilty and was sentenced to three years.
- More than two years after that sentence, Viccaro moved to withdraw his guilty plea, arguing the postrelease-control term was void because the journal entry failed to state the consequences of violation; the trial court denied the motion.
- On accelerated appeal the state supplied the resentencing transcript; the appellate court considered whether the defective postrelease-control entry rendered the escape conviction invalid.
- The court reversed, holding the omission in the journal entry rendered the postrelease-control sentence void, eliminating lawful detention and requiring dismissal of the escape charge and release from custody and supervision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether postrelease control was validly imposed when the journal entry omitted consequences for violation | State: any error is clerical; court advised defendant at hearing so sentence stands | Viccaro: journal entry must include consequences; omission renders postrelease control void | Held: Omission rendered sentence void because journal entry must contain consequences; hearing notice alone insufficient |
| Whether a void postrelease-control sentence precludes an escape conviction based on postrelease-control violation | State: escape conviction still valid despite journal omission | Viccaro: without a valid sentence or lawful detention, Adult Parole Authority lacked jurisdiction and escape charge fails | Held: Void postrelease control meant no lawful detention; escape conviction vacated and charge dismissed |
| Whether the sentencing error could be corrected by resentencing after defendant completed underlying sentence | State: error is clerical and correctable | Viccaro: resentencing not available after sentence served | Held: Court cannot correct by resentencing once underlying sentence served; error cannot be cured |
| Whether defendant met burden to withdraw guilty plea post-sentence under Crim.R. 32.1 | State: trial court did not abuse discretion in denying motion | Viccaro: manifest injustice occurred because underlying sentence void | Held: Manifest injustice shown; trial court erred in denying motion to withdraw plea |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (void postrelease-control sentence reviewable any time)
- State v. Billiter, 134 Ohio St.3d 103 (void postrelease-control applicable to convictions that later result in guilty plea to escape)
- State v. Jordan, 104 Ohio St.3d 21 (trial court must notify offender of postrelease control at sentencing hearing and in journal entry)
- State v. Bezak, 114 Ohio St.3d 94 (court cannot correct sentencing errors by resentencing after sentence served)
- Hernandez v. Kelly, 108 Ohio St.3d 395 (Adult Parole Authority lacks authority to impose postrelease control not imposed by trial court)