State v. BezakState v. Bezak
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- Before:
- Moyer
Lead Opinion
{¶ 1} Appellant, Jack Bezak, appeals from the judgment of the Court of Appeals for Cuyahoga County that vacated his sentence for obstructing justice in violation of
{¶ 2} For the following reasons, we affirm the judgment of the court of appeals vacating Bezak’s sentence and modify the remand instructions to the trial court.
{¶ 3} At trial, the state presented evidence, upon which Bezak was convicted, that he had given false information to the police about a parolee who had failed to report to his parole officer. At sentencing, the trial judge stated: ‘Ybu’11 be out in the not too distant future, at that point you won’t have a — probably will not be on post-release control given that it’s a six-month sentence, but I can’t guarantee that.” The trial judge allowed for postrelease control in the journal entry imposing the sentence.
{¶ 4} Bezak appealed his conviction and sentence to the Eighth District Court of Appeals. The court of appeals affirmed the conviction but remanded the case for resentencing pursuant to State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864. The court of appeals stated: “When a trial court fails to properly discharge its statutory duty with respect to postrelease control notifica
{¶ 5} Bezak filed a motion for reconsideration with the court of appeals, requesting that the court remove the clause that stated “so that appellant may be advised that he is subject to post-release control.” Bezak argued that the clause was ambiguous and requested that the clause be removed to ensure that the trial court would grant Bezak a new sentencing hearing. Bezak’s motion for reconsideration was denied without opinion.
{¶ 6} The question presented is whether, when a court of appeals remands a case for resentencing because of the trial court’s failure to inform the offender at the sentencing hearing that he may be subject to postrelease control, the court must conduct a new sentencing hearing or may instead merely give that information in open court and summarily reimpose the original sentence. We conclude that Bezak was entitled to a de novo sentencing hearing pursuant to Jordan.
{¶ 7} In Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, this court resolved a conflict between appellate court decisions addressing trial courts that failed at sentencing hearings to inform offenders about postrelease control but incorporated the notice into a sentencing entry. Id. at ¶ 1. We briefly reviewed provisions of Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, effective July 1, 1996, and noted the additional duties imposed on trial courts in furtherance of the General Assembly’s goal of truth in sentencing. We also examined two of our cases: State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, which held that certain findings required by
{¶ 8} We determined that the reasoning used in both State v. Comer and State v. Brooks also applied in State v. Jordan and held that “[w]hen sentencing a felony offender to a term of imprisonment, a trial court is required to notify the offender at the sentencing hearing about postrelease control and is further required to incorporate that notice into its journal entry imposing sentence.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at paragraph one of the syllabus.
{¶ 9} We next considered the question presented when a trial court fails to notify the offender of postrelease control at the sentencing hearing: Should the case be remanded for resentencing or should the postrelease control be eliminat
{¶ 10} We relied on our reasoning in State v. Beasley (1984), 14 Ohio St.3d 74, 14 OBR 511, 471 N.E.2d 774 (holding that the trial court’s correction of a statutorily incorrect sentence did not violate appellant’s right to be free from double jeopardy), for the proposition that “where a sentence is void because it does not contain a statutorily mandated term, the proper remedy is * * * to resentence the defendant.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 23.
(¶ 11} As a result, we held in State v. Jordan that “[w]hen a trial court fails to notify an offender about postrelease control at the sentencing hearing but incorporates that notice into its journal entry imposing sentence, it fails to comply with the mandatory provisions of
{¶ 12} Our decision in State v. Jordan controls in this case. The relevant portions of the version of the statute at issue here, former
{¶ 13} The court of appeals remanded the matter to the trial court, stating that Bezak’s case “must be remanded for resentencing so that appellant may be advised that he is subject to post-release control.” (Emphasis added.) However, in such a resentencing hearing, the trial court may not merely inform the offender of the imposition of postrelease control and automatically reimpose the original sentence. Rather, the effect of vacating the trial court’s original sentence is to place the parties in the same place as if there had been no sentence. See Romito v. Maxwell, 10 Ohio St.2d at 267, 39 O.O.2d 414, 227 N.E.2d 223. Therefore, the decision to vacate Bezak’s void sentence would require the trial court to resentence Bezak as if there had been no sentence.
{¶ 14} The state argues that our decision in State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, requires us to hold that an offender’s sentencing hearing upon remand must be limited to only the issue found to be in error; here,
{¶ 15} State v. Saxon is distinguishable from this case. In Saxon, we determined the proper treatment of an appellant’s multiple-offense sentence when the appellant assigns error to one or more of those offenses, but not the entire multiple-offense sentence. Unlike Saxon, who pleaded guilty to multiple offenses, Bezak was convicted of only one offense. Therefore, Bezak’s entire sentence was vacated upon the court of appeals’ decision to sustain his one assignment of error.
{¶ 16} We hold that when a trial court fails to notify an offender that he may be subject to postrelease control at a sentencing hearing, as required by former
{¶ 17} The decision of the court of appeals vacated Bezak’s sentence but remanded the matter with this instruction: “the case must be remanded for resentencing so that appellant may be advised that he is subject to post-release control.” The judgment of the court of appeals vacating the sentence is affirmed and the remand instruction is modified to inform the trial court that a new sentencing hearing is required in cases where postrelease control is not properly included in a sentence for a particular offense. In such cases, the trial court must impose a new sentence on the defendant.
{¶ 18} However, in this case, Bezak has already served the prison term ordered by the trial court, and therefore he cannot be subject to resentencing in order to correct the trial court’s failure to impose postrelease control at Bezak’s original sentencing hearing. In order that its record may be complete, the trial court is instructed to note on the record of Bezak’s sentence that because he has completed his sentence, Bezak will not be subject to resentencing pursuant to our decision.
Judgment affirmed as modified and remanded with instructions.
Dissenting Opinion
dissenting.
{¶ 23} I disagree with the majority’s determination that Bezak should be subject to resentencing. In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, we severed certain subsections of Ohio felony sentencing statutes to comply with Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, on which the majority seems to rely in part, is no longer vital, since it relied on unconstitutional statutes. See State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 26, fn. 7.
{¶ 24} Although as a result of Foster, trial judges are freed from making certain findings that earlier they had been required to make, other statutes remain unaffected by the severance remedy. The mandatory notification provisions within
{¶ 25} We have held that notification must be placed in a journal entry as well as given to the defendant at the sentencing hearing. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864. This case asks what happens when the mandatory notification was not given but the offender has already served the stated prison term.
{¶ 26} The General Assembly has recently enacted a statute, Am.Sub.H.B. No. 137, effective July 11, 2006, that answers the question of what a trial court must do to correct an inadequate notification. According to the statute, a trial court’s failure to include postrelease control in a prison sentence is to be remedied while the offender is still in prison.
{¶ 27}
{¶ 28} In other words, the General Assembly has enacted a procedure whereby postrelease control may be properly authorized and given effect, even though initial notification was inadequate, if the offender has not been released from prison. But Bezak has already served his stated prison term.
{¶ 29} In Bezak’s case, the issue of postrelease control was at least mentioned by the trial court: “You’ll be out in the not too distant future, at that point you won’t have a — probably will not be on post-release control given that it’s a six-month sentence, but I can’t guarantee that.” Counsel had the opportunity to explore the meaning of postrelease control with the court on behalf of his client, but apparently nothing further was said, although postrelease control was stated to be part of the sentence in the judgment entry.
{¶ 30} The majority relies on State v. Beasley (1984), 14 Ohio St.3d 74, 14 OBR 511, 471 N.E.2d 774, which I believe to be distinguishable. Beasley involved the sentencing procedure in effect before Senate Bill 2,1 and the trial court disregarded the mandatory minimum prison term of two to 15 years with an optional fine
{¶ 31} I am extremely troubled by the majority’s application of the term “void” to Bezak’s case. The majority states that an imperfect notification regarding postrelease control will void the sentence “ ‘as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment’ ” (emphasis added), quoting Romito v. Maxwell (1967), 10 Ohio St.2d 266, 267-268, 39 O.O.2d 414, 227 N.E.2d 223. I believe this holding undermines the principles of res judicata that we discussed in State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824.
{¶ 32} The sentencing court did not properly notify Bezak of the possibility that he would be subject to postrelease control upon his release from prison. Although the General Assembly has now provided a procedure by which this type of error must be corrected, the correction is to be made while the offender is still in prison. I do not agree that Bezak’s prison term, which he has already served, is a nullity. I would strictly construe the provisions of
Notes
. Am.Sub.S.B. No. 2,146 Ohio Laws, Part IV, 7136.
Dissenting Opinion
dissenting.
{¶ 19} Initially, I agree with the majority’s conclusion that because Bezak has already served the prison term relevant to this appeal, he cannot be subject to resentencing to correct the failure regarding the imposition of postrelease control. However, the issue of this case on the scope of the resentencing has been fully briefed and argued and is applicable to all situations involving a flawed imposition of postrelease control, including those in which a defendant will not have fully served a prison term by the time of an appellate court’s consideration, so it is appropriate for this court to resolve that issue on the merits.
{¶ 20} I disagree with the majority’s holding that an offender whose sentence is valid in all respects except for an improper imposition of or failure to impose postrelease control at the original sentencing hearing “is entitled to a new sentencing hearing” to correct the flawed imposition of postrelease control. In my opinion, a full new sentencing hearing is not required. The trial court upon resentencing can rectify the error of this case by simply informing the offender of the postrelease control in open court and summarily reimposing the original sentence. ■
{¶ 21} The majority correctly observes that this case is not on point with State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, because the sentence imposed in Saxon was for multiple offenses and this case involves only a single offense. However, simply because Saxon is factually distinguishable does not make its reasoning irrelevant. Just as Saxon held that a complete resentencing is not required when a defendant on appeal prevails on a challenge only as to one offense in a multiple-offense case, a complete de novo resentencing is not required when a defendant prevails only as to the postrelease-control aspect of a particular sentence.
{¶ 22} In this situation, the postrelease-control component of the sentence is fully capable of being separated from the rest of the sentence as an independent component, and the limited resentencing must cover only the postrelease control. It is only the postrelease-control aspect of the sentence that is void and that must be rectified. The remainder of the sentence, which the defendant did not successfully challenge, remains valid under principles of res judicata. See Saxon, at ¶ 17-19.
Lundberg Stratton, J., concurs in the foregoing opinion.