STATE OF OHIO, Plаintiff-Appellee v. MICHAEL A. DEAN, Defendant-Appellant
Appellate Case No. 2013-CA-17
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
January 10, 2014
2014-Ohio-50
Trial Court Case No. 2012-CR-349 (Criminal Appeal from Common Pleas Court)
Rendered on the 10th day of January, 2014.
JENNIFER E. GELLER, Atty. Reg. No. 0088855, Champaign County Assistant Prosecuting Attorney, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Apрellee
THOMAS W. KIDD, JR., Atty. Reg. No. 0066359, P.O. Box 231, Harveysburg, Ohio 45032 Attorney for Defendant-Appellant
WELBAUM, J.
{¶ 2} Whеn the trial court in the prior 2006 case sentenced Dean to serve “up to” three years of post-release control, it was insufficient to impose the mandatory three- year term of рost-release control. Therefore, the post-release control sentence is void. The trial court in the present case erred when it imposed a 24-month prison sentence fоr violation of the void post-release control supervision. Because the sentence of post-release control in the 2006 case is void, it may be collaterally attacked in this case.
I. Statement of Facts and Procedural History
{¶ 3} On November 21, 2012, police were called to a bar, “Little Nashville“, in Urbana, Ohio, on a report from an off-duty police officer that a man holding a gun was outside the bar. As the poliсe responded, they heard the sound of a gunshot. Defendant-Appellant, Michael Dean, had accidently dropped a gun, and when he picked the gun up, it discharged. The off-duty police оfficer pointed a pistol at Dean and instructed him to drop the gun. Instead, Dean fled.
{¶ 4} Multiple law enforcement officers searched for Dean. He was later located, and again rаn from a pursuing deputy sheriff. When Dean tripped, the deputy handcuffed him. A .45 caliber bullet was located under Dean‘s head, and two bullets were found in his pocket. The .45 caliber handgun was later found under a pile of sticks in an alley. Near the bar where the pistol was fired, police found seven bullets on a cement block wall, along with sunglasses and half a
{¶ 5} Dean‘s girlfriend, Canda Green, told policе that she had observed Dean steal a red cell phone, sunglasses, and a pistol from a white Honda. Canda possessed the red cell phone. After a search warrant was authorized, thе examination revealed that Dean‘s personal cell phone contained text messages referring to shooting the pistol.
{¶ 6} On December 10, 2012, the Champaign County Grand Jury returned an indictment against Dean for five felony counts, all with one-year firearm specifications.
{¶ 7} On January 16, 2013, Dean entered a plea of guilty to two counts as part of a negotiated plea. In exchange for Dean‘s guilty plea to illegal possession of a firearm in a permit premises and tampering with evidence, both third degree felonies, the State dismissed three counts and all five firearm specifications. The State also recommended a prison sentence, but less than the maximum.
{¶ 8} On February 27, 2013, Dean was sentenced to two 18-month terms, to be served consecutively. At the time of his offensе, Dean was being supervised on post-release control in Champaign County Case No. 2006-TR-176, and had 30.5 months remaining on the supervision. The trial court imposed a consecutive 24-month prison sentenсe for the post-release control violation, making the total sentence five years. Dean appeals from this conviction and sentence.
II. Legal Analysis
{¶ 9} On November 12, 2013, we permitted Dean to amend his brief. He presents two assignments of error. Dean‘s first assignment of error states:
The trial court erred when it imposed a judicial-sanction sentence based upon void post release control.
{¶ 11} Dean is correct. As a result, the trial court erred when it imposed a 24-month prison sentence for violation of a void post-release control supervision-sentence.
{¶ 12} In the 2006 case, Dean was convicted and sentenced for a felony of the second degree. This required the trial court in the prior case to sentence Dean to three yеars of mandatory post-release control. The court was also required to inform Dean of this at sentencing, and to include such language in the sentencing entry.
{¶ 13} However, the trial court clearly intended to not sentence Dean to a mandatory three-year term of post-release control. At the change of plea hearing in the 2006 case, the trial court told Dean that “Post-release control can last for three years. The current trend is to actively supervise for one, but it can last for three.” Transcript of September 12, 2006 Plea Hearing in Case No. 2006-CR-176, p. 12.
{¶ 14} Likеwise, the trial court erred at the 2006 sentencing hearing when it informed Dean that:
After you are released from your prison sentence, you are subject to post-release control for a period of up to three years. Currently the post-release control is only actively supervised for one, but it can last for three. Transcript of October 10, 2006 Sentencing Hearing in Case No. 2006-CR-176, р. 13.
{¶ 15} Finally, the sentencing entry in the 2006 case stated that “After release from
{¶ 16} We have repeatedly held that the “up to” language as found in the 2006 case is insufficient when the post-release control is mandatory. Such error causes the post-release control portion of the sentence to be void. See, e.g., State v. Fleming, 2013-Ohio-503, 990 N.E.2d 145, ¶ 21-24 (2d Dist.), citing State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 12, and State v. Adkins, 2d Dist. Greene No. 2010-CA-69, 2011-Ohio-2819, ¶ 11 and 14.
{¶ 17} In Adkins, the defendant was told that he was subject to mandatory post release control for “up to” five years. Id. at ¶ 6. We noted that:
[I]n reality, Adkins was subject to mandatory post-release control for the entire five years. Logically, ” ‘up to’ ” five years also included five years and could not conceivably prejudice the defendant. But, the case law is to the contrary. Therefore, the post-release control portion of Adkins‘s sentence is void. (Citation omitted). Id.
{¶ 18} Under the procedure set forth in
{¶ 19} The law relating to this issue is well settled. We conclude that the trial court in the 2006 case erred when it sentenced Dean to “up to” three years of post-release control when a
{¶ 20} Since the sentence of post-release control in the 2006 case is void, it may be collaterally attacked in this case. In this regard, the Supreme Court of Ohio has stressed that:
As we have consistently stated, if a trial court imposes a sentence that is unauthorized by law, the sentence is void. ” ‘The effect of determining that a judgment is void is well established. It is 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.’ ” (Citations omitted). * * * We said in Fischer thаt a void post-release-control sentence ” ‘is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or collateral attack.’ ” Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 10, quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus.
{¶ 21} Accordingly, we sustain the first assignment of error.
{¶ 22} Dean‘s Second Assignment of Error states as follows:
Michael Dean was deprived of his constitutional right to the effective assistance of counsel.
{¶ 23} Dean argues under this assignment of error that his trial counsel was ineffective because counsel failed to challenge the judicial sanction-sentence based on void post-release control. We find Dean‘s second assignment of error moot in light of our disposition of the first assignment of error in his favor.
{¶ 24} The portion of the trial court‘s 2006 sentencing entry imposing post-release control is vаcated. Also, the 24-month prison sentence in this case for violation of post-release control is vacated. Otherwise, the judgment is affirmed. The cause is remanded to the trial court to notify the Adult Parole Authority about the vacation of the post-release control in the 2006 case and the Department of Rehabilitation and Correction concerning the vacation of the 24-month prison sentence for Dean‘s violation of post release control. {¶ 25} We reverse in part, and affirm in part, and remand for further proceedings.
FROELICH and HALL, JJ., concur.
Copies mailed to:
Jennifer E. Geller
Thomas W. Kidd, Jr.
Hon. Nick A. Selvaggio