2008 Ohio 4463 | Ohio Ct. App. | 2008
{¶ 2} In 2004, a grand jury indicted Downing on one count of rape, a felony of the first degree, three counts of gross sexual imposition, felonies of the third degree, and two counts of disseminating matter harmful to juveniles, felonies of the fourth degree. Downing entered an Alford plea to the count of rape and one count of gross sexual imposition. The State agreed to dismiss the other counts. The plea form indicated that Downing "may" be subject to five years of post-release control. The trial court did not personally advise Downing about post-release control, but the judgment entry noted that Downing would be subject to post-release control. The court sentenced Downing to three years of imprisonment on Count 4 and five years of imprisonment on Count 1. The court ordered the two sentences to run consecutively, for a total of eight years.
{¶ 3} Downing filed a motion for re-sentencing, pursuant to State v.Bezak,
{¶ 4} The State appeals the trial court's judgment and asserts the following assignment of error:
THE TRIAL COURT HAD NO AUTHORITY TO RECONSIDER THE LENGTHS OF DEFENDANT'S VALID PRISON TERMS.
{¶ 5} The State contends in its sole assignment of error that the trial court had no authority at the re-sentencing hearing to reconsider the length of Downing's prison terms, but only had the authority to inform him about post-release control.
{¶ 6} We undertake a de novo review to answer this legal question. See, e.g., Stuller v. Price, Franklin App. No. 03AP-30,
{¶ 7} In Jordan, supra, the trial court failed to notify the defendant about post-release control at the sentencing hearing, but included it in the sentencing entry. The Supreme Court of Ohio held in the syllabus that:
1. When 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.
2. When 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 R.C.
2929.19 (B)(3)(c) and (d), and, therefore, the sentence must be vacated and the matter remanded to the trial court for resentencing.
{¶ 8} Here, the State agrees that the trial court failed to inform Downing about post-release control at his original sentencing hearing. However, the State asserts that *4
Downing had proper notification of post-release control because the prosecutor informed Downing that he was subject to post-release control and the guilty plea form indicated the same. Because the plain words ofJordan and R.C.
{¶ 9} The State claims that, even if the trial court erred at the original sentencing hearing, it only had the authority at the re-sentencing hearing to properly notify Downing about post-release control. The State maintains that the court did not have the authority to reduce Downing's prison terms because the original sentence was voidable, not void.
{¶ 10} However, "[w]hen a defendant is convicted of or pleads guilty to one or more offenses and postrelease control is not properly included in a sentence for a particular offense, the sentence for that offense is void. The offender is entitled to a new sentencing hearing for that particular offense." Bezak, supra, at syllabus. "`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.)" Id. at ¶ 12, quoting Romito v. Maxwell (1967), 10 Ohio St. 2d 266, 267-268.
{¶ 11} This court examined the difference between void and voidable inState v. Peeks, Franklin App. No. 05AP-1370,
A void judgment is one rendered by a court lacking subject-matter jurisdiction or the authority to act. * * * A voidable judgment, on the other hand, is a judgment rendered by a court having jurisdiction/authority and, although seemingly valid, is irregular and erroneous. * * *
We distinguished Jordan, finding that the trial court in Jordan
disregarded a statutory requirement in its sentencing and thereby acted outside its authority, which resulted in a *5
void sentence. The same is true here, because the trial court disregarded the statutory requirement to inform Downing regarding post-release control. Further, we reached the same result in State v.Ramey, Franklin App. No. 06AP-245,
{¶ 12} Nevertheless, the State claims that the trial court should have followed R.C.
{¶ 13} Therefore, because the trial court failed to notify Downing about post-release control, we find that his sentence was void. Consequently, the trial court had the authority at re-sentencing to reduce Downing's original sentence.
{¶ 14} Accordingly, we overrule the State's sole assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and KLATT, JJ., concur.
KLINE, J., of the Fourth Appellate District, sitting by assignment in the Tenth Appellate District. *1
