STATE OF OHIO, Plaintiff-Appellee, v. ADAM D. CHASTEEN, Defendant-Appellant.
CASE NO. CA2012-12-247
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
8/19/2013
[Cite as State v. Chasteen, 2013-Ohio-3573.]
M. POWELL, J.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2007-06-1007
Adam D. Chasteen, P.O. Box 13531, Hamilton, Ohio 45013, defendant-appellant, pro se
M. POWELL, J.
{¶ 1} Defendant-appellant, Adam D. Chasteen, appeals a decision of the Butler County Court of Common Pleas denying his motion to vacate the imposition of postrelease control. For the reasons stated below, we reverse and vacate in part the decision of the trial court and remand for further proceedings.
{¶ 2} In an October 2007 bench trial, appellant was found guilty of kidnapping, intimidation of an attorney, victim, or witness in a criminal case, and assault. Appellant was
The court has notified the defendant that postrelease control is mandatory in this case up to a maximum of five (5) years, as well as the consequences for violating conditions of postrelease control imposed by the Parole Board under Revised Code 2967.28. The defendant is ordered to serve as part of this sentence any term of postrelease control imposed by the Parole Board and any prison term for violation of that postrelease control.
{¶ 3} Appellant was released from prison in September 2012 after having completed his prison sentence and was placed on postrelease control. Thereafter, appellant moved the trial court to vacate the imposition of postrelease control because the trial court did not properly notify him of postrelease control. The trial court denied appellant‘s motion.
{¶ 4} Appellant now appeals, asserting three assignments of error.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT FAILED TO COMPLY WITH OHIO CRIMINAL RULE 32(C).
{¶ 7} Assignment of Error No. 2:
{¶ 8} THE TRIAL COURT FAILED TO RESENTENCE THE APPELLANT PRIOR TO HIS RELEASE FROM PRISON.
{¶ 9} Assignment of Error No. 3:
{¶ 10} THE TRIAL COURT COMMITED REVERSIBLE ERROR WHEN IT DENIED APPELLANT‘S MOTION TO VACATE THE IMPOSITION OF [POSTRELEASE CONTROL].
{¶ 11} Appellant challenges the imposition of postrelease control on two bases. First,
I. Manner of Conviction
{¶ 12}
{¶ 13} In State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, the Ohio Supreme Court held that in order for a judgment entry of conviction to comply with
{¶ 14} Since Baker, courts have struggled with whether the omission of a defendant‘s manner of conviction affects the finality of a judgment entry of conviction. State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, ¶ 9. In Lester, the Supreme Court clarified “the substantive requirements that must be included within a judgment entry of conviction to make
Crim.R. 32(C) does not require a judgment entry of conviction to recite the manner of conviction as a matter of substance, but it does require the judgment entry of conviction to recite the manner of conviction as a matter of form. The identification of the particular method by which a defendant was convicted is merely a matter of orderly procedure rather than of substance. A guilty plea, a no-contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial explains how the fact of a conviction was effected. Consequently, the finality of a judgment entry of conviction is not affected by a trial court‘s failure to include a provision that indicates the manner by which the conviction was effected, because that language is required byCrim.R. 32(C) only as a matter of form, provided the entry includes all the substantive provisions ofCrim.R. 32(C) .
{¶ 15} The Supreme Court clarified and stated that “the fact that a defendant may be entitled to a revised order setting forth an inadvertently omitted term that is required by
{¶ 16} Appellant‘s 2007 sentencing entry incorrectly specifies that appellant was found guilty by a jury as opposed to a bench trial. Except for incorrectly stating the manner of conviction, the entry complied with the substantive requirements of
{¶ 17} The Rules of Criminal Procedure specifically permit the correction of clerical
II. Postrelease Control Notifications
{¶ 18} Next, we address the notifications appellant received regarding postrelease control in the sentencing entry and during the sentencing hearing. Appellant argues the judgment entry of conviction erroneously stated the duration of postrelease control as “up to” five years when he was required to serve a mandatory five-year term of postrelease control. Additionally, appellant contends the trial court failed to notify him at the sentencing hearing that violation of postrelease control may result in imprisonment for up to half his prison term. Appellant maintains that because he has completed his term of imprisonment, the trial court may not now correct these errors, and postrelease control must be vacated. The state responds by arguing that
A. Sentencing Entry and Hearing Notification Errors
{¶ 19} We find that the trial court failed to accurately advise appellant regarding postrelease control at the sentencing hearing. 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
{¶ 20} Additionally, appellant‘s sentencing entry also failed to properly advise him about the term of postrelease control. The entry stated he was subject to a mandatory term of postrelease control “up to” a maximum of five years. This improperly indicated that appellant could be subject to something less than the statutorily required term. State v. Gann, 12th Dist. Butler No. CA2010-07-153, 2011-Ohio-895, ¶ 19. See
{¶ 21} Therefore, the issue is whether the failure to notify an offender of postrelease supervision and of the consequences of violating postrelease control may be corrected and postrelease control imposed once an offender has been released from prison.
B. Legislative Remedies and Supreme Court Jurisprudence
{¶ 22}
{¶ 23} Over the years, the Ohio Supreme Court has stated that postrelease control
{¶ 24}
If a court imposes a sentence including a prison term on or after July 11, 2006, the failure of a court to notify the offender pursuant to [this subsection] that the parole board may impose a prison term as described in [this subsection] for a violation of that supervision or a condition of post-release control imposed under [R.C. 2967.131(B)] or to include in the judgment of conviction entered on the journal a statement to that effect does not negate, limit, or otherwise affect the authority of the parole board to so impose a prison term for a violation of that nature if, pursuant to [R.C. 2967.28(D)(1)], the parole board notifies the offender prior to the offender‘s release of the board‘s authority to so impose a prison term.
(Emphasis added.)
{¶ 25} In State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, the Court addressed the import of
Nothing in that division, however, provides that the executive branch may impose postrelease control if the sentencing court has not ordered it, nor does its language conflict with our precedent. However, a sentencing court must impose postrelease control before an offender completes the stated term of imprisonment.
{¶ 26} Notwithstanding
{¶ 27} The Court also addressed the parole board‘s authority in imposing postrelease control. The Court noted that “in the absence of a proper sentencing entry imposing postrelease control, the parole board‘s imposition of postrelease control cannot be enforced. Imposition of punishment is a function of the judicial branch of government.” Id. at ¶ 71.
{¶ 28} In State v. Williams, 7th Dist. Belmont No. 09 BE 11, 2010-Ohio-2702, the Seventh District commented concerning the efficacy of
{¶ 29} Recently, the Supreme Court noted that once a defendant has completed his original term of imprisonment, not all notification errors will require postrelease control to be vacated. State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111. In Qualls, the Supreme
Unless a sentencing entry that did not include notification of the imposition of postrelease control is corrected before the defendant completed the prison term for the offense for which postrelease control was to be imposed, postrelease control cannot be imposed. State v. Hernandez, 108 Ohio St.3d 395, 2006-Ohio-126, ¶ 28-20; compare Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, ¶ 48-51 (when a sentencing entry made some reference to postrelease control, any deficiencies in the entry could have been raised on appeal, and postrelease control can be imposed upon the defendant‘s release from prison).
(Emphasis added.) Id.
{¶ 30} These decisions indicate that the Supreme Court differentiates between the treatment of postrelease control notification errors depending upon whether a defendant has completed the term of imprisonment for which the postrelease control relates. Dicta in Qualls suggests that when a sentencing entry defectively provides notice of postrelease control, postrelease control need not be vacated. However, postrelease control notification errors occurring at the sentencing hearing or failure to include any notification of postrelease control in the sentencing entry will require vacation of postrelease control if the defendant has been released from his original term of imprisonment. See State v. Clark, 2d Dist. Montgomery No. 2012CA16, 2013-Ohio-299, ¶ 54. Under Qualls, this rationale also extends to the trial court‘s authority to correct a sentencing entry by issuing a nunc pro tunc entry, if the original sentencing entry contains no mention of postrelease control.
C. Remedy in this Case
{¶ 31} We find that appellant‘s postrelease control must be vacated. The
{¶ 32} Further, we find that because appellant has completed his original term of imprisonment, the error that occurred during his sentencing hearing is not subject to correction. The trial court‘s failure to notify appellant regarding the consequences of violating postrelease control at the sentencing hearing was in error. Qualls does not apply here as appellant received a faulty notification of postrelease control at the sentencing hearing. See State v. Perry, 12th Dist. Butler Nos. CA2011-01-008, CA2001-02-017, 2011-Ohio-3637; State v. McKissic, 8th Cuyahoga Dist. Nos. 92332, 92333, 2010-Ohio-62.
{¶ 33} Appellant‘s assignments of error are sustained in part and overruled in part. Appellant‘s judgment entry which incorrectly specifies the manner of his conviction is a final appealable order under
{¶ 34} Additionally, the imposition of postrelease control against appellant must be vacated because he was improperly notified of postrelease control during the sentencing hearing and he has completed his original term of imprisonment. The trial court is instructed to note on the record that because appellant has completed his prison sentence, he will not be subject to resentencing pursuant to law. Further, any supervision fees imposed by the Adult Parole Authority against appellant regarding postrelease control should be withdrawn and any fees paid by appellant are ordered to be refunded back to him. See State v. Simmons, 8th Dist. Cuyahoga No. 91628, 2008-Ohio-6291.
{¶ 35} Judgment reversed and vacated in part and remanded for further proceedings.
HENDRICKSON, P.J., and S. POWELL, J., concur.