STATE OF OHIO v. DWAYNE BYBEE
No. 101696
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 12, 2015
[Cite as State v. Bybee, 2015-Ohio-878.]
BEFORE: E.A. Gallagher, J., Jones, P.J., and Stewart, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-583254-A; RELEASED AND JOURNALIZED: March 12, 2015
Michael J. Goldberg
John J. Dowell
The Goldberg Law Firm
323 Lakeside Avenue, West
Suite 450
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Edward D. Brydle
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
Procedural and Factual Background
The 2010-2011 Cases
{¶2} In 2011, Bybee was convicted of felonies in three separate cases. In Case No. CR-10-543974, Bybee pled guilty to trafficking, a third-degree felony with forfeiture and juvenile specifications. He was sentenced to two years in prison, and postrelease control for up to three years. In Case No. CR-10-539923, Bybee pled guilty to attempted felonious assault, a third-degree felony, and was sentenced to one year in prison, to run concurrently to the sentence in CR-10-543974. Mandatory postrelease control of three years was also imposed. In Case No. CR-11-547880, Bybee pled guilty to a charge of attempted failure to comply with an order or signal of a police officer, a fourth-degree felony, and resisting arrest, a second-degree misdemeanor. He was sentenced to a year in prison on the first count, and 90 days on the
{¶3} In its sentencing entries in Case Nos. CR-10-543974 and CR-11-547880, the trial court provided the following notification with respect to postrelease control:
Post release control is part of this prison sentence for up to three years for the above felony(s) under
R.C. 2967.28 . Defendant advised that if post release control supervision is imposed following his/her release from prison and if he/she violates that supervision or condition of post release control underR.C. 2967.131(B) , parole board may impose a prison term as part of the sentence of up to one-half of the stated prison term originally imposed upon the offender.
In its sentencing entry in Case No. CR-10-539923, the trial court provided the following notification with respect to postrelease control:
Post release control is part of this prison sentence for three years mandatory for the above felony(s) under
R.C. 2967.28 . Defendant advised that if post release control supervision is imposed following his/her release from prison and if he/she violates that supervision or condition of post release control underR.C. 2967.131(B) , parole board may impose a prison term as part of the sentence of up to one-half of the stated prison term originally imposed upon the offender.
The 2014 Felony Conviction
{¶4} On March 17, 2014, the Cuyahoga County Grand Jury indicted Bybee on one count of drug possession, two counts of drug trafficking and one count of possessing criminal tools with various forfeiture specifications in Case No. CR-14-583254 (the “2014 case“) arising out of an incident that allegedly occurred on March 3, 2014. On May 28, 2014, Bybee pled guilty to one count of drug trafficking in violation of
{¶5} Prior to accepting Bybee‘s plea in the 2014 case, the trial court explained the ramifications of Bybee‘s new felony conviction on his postrelease control in the 2010-2011 cases as follows:
THE COURT: Do you understand pleading guilty in this case has the following effect on your post-release control: The parole board can sanction you with up to one half your originally entered into sentence. As a violation of your post-release control I can terminate your post-release control and impose the greater of one year or the remaining time period left on your post-release control period as a prison sanction; do you understand that?
DEFENDANT BYBEE: Yes.
THE COURT: That prison time would be in addition to the penalties that I‘m going to explain that you face in this case[,] which is again going to be [a] six to 12 months sentence. Do you understand that?
DEFENDANT BYBEE: I understand.
{¶6} On June 27, 2014, the trial court sentenced Bybee to one year in prison on the drug trafficking count in the 2014 case and postrelease control for up to three years. In addition, the trial court terminated postrelease control in the 2010-2011 cases and sentenced Bybee to a prison term equal to the greater of the remaining period of postrelease control or one year. At the time of the sentencing, approximately two years of postrelease control remained in the 2010-2011 cases. The one-year prison sentence in the 2014 case was imposed consecutively to the sentence for the violation of postrelease control in the 2010-2011 cases. Bybee timely appealed, raising the following assignment of error for review:
The trial court‘s imposition of a term of incarceration for the remaining period of defendant-appellant‘s post-release control is contrary to law and the sentence was void.
Law and Analysis
{¶7} In his sole assignment of error, Bybee argues that his consecutive sentence equal to the greater of the remaining period of postrelease control or one year for committing a felony while on postrelease control is void because the trial court failed to notify him in the sentencing entries in the 2010-2011 cases that, should he commit a felony while on post release control, his postrelease control could be terminated and he could be sentenced to an additional term of imprisonment equal to the greater of the remaining period of postrelease control or one year for committing a felony while on postrelease control. Based on the trial court‘s alleged improper postrelease control notification in the 2010-2011 cases, Bybee contends his sentences in those cases were void. Bybee further contends that because he had already served his full prison terms in the 2010-2011 cases at the time he committed the new felony in 2014, the sentencing errors in the 2010-2011 cases could not be fixed and that, therefore, he was not subject to postrelease control upon the expiration of his prison terms in the 2010-2011 cases. Bybee goes on to argue that because he was not properly subject to postrelease control at the time of he committed the 2014 felony, the trial court lacked authority to sentence him to an additional term of imprisonment based on his commission of that felony and that his consecutive sentence equal to the greater of the remaining period of postrelease control or one year for committing a new felony while on postrelease control should, therefore, be vacated and the case remanded for resentencing.
{¶9}
if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following: * * *
(e) Notify the offender that, if a period of supervision is imposed following the offender‘s release from prison, as described in division (B)(3)(c) or (d) of this section, and if the offender violates that supervision or a condition of post-release control imposed under division (B) of section 2967.131 of the Revised Code, the parole board may impose a prison term, as part of the sentence, of up to one-half of the stated prison term originally imposed upon the offender. * * *
{¶10} In addition to the authority provided the parole board to impose sanctions for violations of postrelease control under
(A) Upon the conviction of or plea of guilty to a felony by a person on post-release control at the time of the commission of the felony, the court may terminate the term of post-release control, and the court may do either of the following regardless of whether the sentencing court or another court of this state imposed the original prison term for which the person is on post-release control:
(1) In addition to any prison term for the new felony, impose a prison term for the post-release control violation. The maximum prison term for the violation shall be the greater of twelve months or the period of post-release control for the earlier felony minus any time the person has spent under post-release control for the earlier felony. In all cases, any prison term imposed for the violation shall be reduced by any prison term that is administratively imposed by the parole board as a post-release control sanction. A prison term imposed for the violation shall be served consecutively to any prison term imposed for the new felony. The imposition of a prison term for the post-release control violation shall terminate the period of post-release control for the earlier felony.
(2) Impose a sanction under sections 2929.15 to 2929.18 of the Revised Code for the violation that shall be served concurrently or consecutively, as specified by the court, with any community control sanctions for the new felony.
{¶11} Bybee does not dispute that the trial court complied with the notification requirements of former
{¶12} This court, and several others, have previously rejected similar arguments. In Witherspoon, this court held that postrelease control was properly imposed where the trial court advised the defendant at his sentencing hearing (and thereafter incorporated the notification in its sentencing entry) that he could receive up to three years of postrelease control and that if he violated the conditions of postrelease control, the parole authority could impose a further term of incarceration up to one half of his original sentence. Id. at ¶ 3, 19. In so ruling, the court rejected the defendant‘s argument that the trial court was also required to notify him, as part of the postrelease control notification regarding the “consequences” of violating postrelease control, that violation of postrelease control could result in an “additional charge,” i.e., that he could be convicted of escape for failing to report as required under the terms of his postrelease control.
{¶13} The Twelfth District reached a similar conclusion in Mullins, supra, distinguishing
[A]ppellant argues that the 12-month consecutive sentence imposed by the trial court is void because he was never informed of such a possibility when he was sentenced on his original felony conviction for receiving stolen property. Appellant asks this court to amend the sentence from the trial court to vacate the 12 consecutive months imposed pursuant to
R.C. 2929.141 .Ohio case law is clear that when sentencing a felony offender to [a] term of imprisonment, the 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, paragraph two of the syllabus. A court is required to notify an offender both that he may be subject to postrelease control, and where applicable, that failure to comply with the conditions of postrelease control could result in imposition of a prison term of up to one-half of the stated prison term originally imposed. 2004-Ohio-6085 at ¶ 15. These requirements have been incorporated into Ohio‘s sentencing statute at
R.C. 2929.19(B)(3)(c) -(e). “Any attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void.” Id. It is not disputed that the trial court complied with both of these requirements in this case.Appellant argues, however, that the trial court was also required to inform him of the potential consequences of committing a new felony while on postrelease control, as articulated in
R.C. 2929.141 . * * * Appellant argues that because the trial court failed to notify him of the potential implications ofR.C. 2929.141 at his sentencing hearing on the original felony conviction, the court was barred from imposing the consecutive sentence upon conviction of the new felony. * * * While appellant attempts to extend the postrelease control notification requirements identified in Jordan and codified inR.C. 2929.19 , hefails to point to any statutory requirement that the trial court notify an offender of the implications of R.C. 2929.141 . This issue was very recently examined in State v. Susany, 7th Dist. Mahoning No. 07 MA 7, 2008-Ohio-1543. In that case, the Seventh District Court of Appeals noted that “the preeminent purpose ofR.C. 2967.28 was to ensure that defendants know at their sentencing that, ‘their liberty could continue to be restrained after serving their initial sentences.‘” Id., quoting Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78.The court went on to find that there is no requirement that a defendant be advised that upon the commission of a new offense, a defendant is subject to additional prison time for any felony committed while on postrelease control. 2008-Ohio-1543 at ¶ 95.
We find Susany to be persuasive and similarly find no error in the trial court‘s failure, at appellant‘s sentencing on his original offense, to inform him of the potential sentence for committing a new felony while on postrelease control. We therefore find the court properly exercised its jurisdiction and discretion pursuant to
R.C. 2929.141 to impose the 12-month consecutive sentence when sentencing appellant on his conviction for attempted escape in this case.
Id. at ¶ 6-13; see also Susany, 2008-Ohio-1543 at ¶ 91, 95 (finding no error in the trial court‘s failure, at the defendant‘s original sentencing hearing, to inform him of the potential sentence for committing a new felony while on postrelease control, stating “[a]ppellant fails to direct our attention to any holding which states that a defendant must be advised that upon the commission of a new offense, a defendant is subject to additional prison time for any felony committed while on postrelease control. There is no such requirement * * *“); State v. Burgett, 3d Dist. Marion No. 9-10-37, 2010-Ohio-5945, ¶ 27-31 (reasoning that because “possible consequences of the commission of a felony under
{¶14} We are aware of two recent cases that have reached contrary conclusions. In State v. Pippen, 4th Dist. Scioto No. 14CA3595, 2014-Ohio-4454, the Fourth District held that the portion of the defendant‘s sentence that addressed postrelease control was void where the trial court failed to notify the defendant at the sentencing hearing of “all the consequences of violating
As the Pippen court explained:
The Supreme Court of Ohio addressed the “importance of notification” in State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶18, as follows:
“* * * in order to comply with separation-of-powers concerns and to fulfill the requirements of the post release-control-sentencing statutes, especially
R.C. 2929.19(B) and2967.28 , a trial court must provide statutorily compliant notification to a defendant regarding postrelease control at the time of sentencing, including notifying the defendant of the details of the postrelease control and the consequences of violating postrelease control. [Woods v. Telb, 89 Ohio St.3d 504, 2000-Ohio-171, 733 N.E.2d 1103 (2000), at paragraphs one and two of the syllabus; State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at paragraph one of the syllabus; State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, at ¶2.]” (Emphasis added).As recently noted in State v. Chasteen, 12th Dist. Butler No. CA2012-12-247, 2013-Ohio-3573, ¶19: “When a court imposes a sentence that includes postrelease control, it must notify the offender at the sentencing hearing that he will be supervised pursuant to
R.C. 2967.28 and that upon violating a condition of postrelease control, the parole board may impose a prison term of up to one-half of the prison term originally imposed upon the offender.R.C. 2929.19(B)(3)(c) and (e); State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, ¶ 2, 909 N.E.2d 1254.”
(First emphasis added; second emphasis sic.)
{¶16} Qualls and Jordan address the requirements for “statutorily compliant notification.” Qualls at ¶ 18, 23. While we recognize that the trial court had a duty, pursuant to former
{¶17} Accordingly, we find no error in the trial court‘s failure, in the journal entries sentencing Bybee on his offenses in the 2010-2011 cases, to advise Bybee of the potential
{¶18} The trial court‘s judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
____________________________________
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
MELODY J. STEWART, J., CONCUR