State v. GreenState v. Green
{¶1} On September 1, 2000, the Stark County Grand Jury indicted appellant, Marcus Green, on one count of murder with a firearm specification in violation of
{¶2} On November 3, 2000, appellant pled guilty to both counts. By judgment entry filed November 8, 2000, the trial court sentenced appellant to a total term of seventeen years in prison.
{¶3} On June 16, 2010, appellant filed a motion to withdraw his guilty pleas and a motion to correct a void sentence and request for resentencing based upon a defect in the imposition of postrelease control. By judgment entries filed July 6, 2010, the trial court denied both motions.
{¶4} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I
{¶5} “THE TRIAL COURT ERRED BY DISMISSING DEFENDANT-APPELLANT‘S MOTION TO CORRECT A VOID SENTENCE AND REQUEST FOR RESENTENCING, WHERE THE TRIAL COURT INCORRECTLY STATED, AT DEFENDANT-APPELLANT‘S CHANGE OF PLEA AND SENTENCING HEARING AND RECORDED IN THE JUDGMENT ENTRY THAT POST-RELEASE CONTROL WAS A DISCRETIONARY PERIOD OF UP TO A MAXIMUM OF 5 YEARS CONTRARY TO THE PROVISIONS OF
{¶6} “THE TRIAL COURT ERRED IN DISMISSING DEFENDANT-APPELLANT‘S MOTION TO WITHDRAW GUILTY PLEA WHERE THE NEGOTIATED PLEA AGREEMENT WAS RENDERED NULL AND VOID, AS THE AGREED SENTENCE AS STATED IN THE NEGOTIATED PLEA AGREEMENT TERMS AND CONDITIONS WAS UNAUTHORIZED BY LAW AND THE SENTENCE IMPOSED BY THE TRIAL COURT WAS OUTSIDE OF THE TERMS AND CONDITIONS, AS WELL AS BEING UNAUTHORIZED BY LAW, IN ITSELF. THE PLEA AGREEMENT WOULD BE UNENFORCEABLE AND IN VIOLATION OF DEFENDANT-APPELLANT‘S RIGHTS OF DUE PROCESS AND EQUAL PROTECTION UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.”
I
{¶7} Appellant claims the trial court erred in denying his motion to correct a void sentence and request for resentencing. We agree.
{¶8} “In 1996, the General Assembly imposed a duty on trial courts to notify an offender at the sentencing hearing of the imposition of postrelease control and of the authority of the parole board to impose a prison term for a violation; the General Assembly also required that a court include any postrelease-control sanctions in its sentencing entry. See
{¶9} The Singleton court at paragraph one of the syllabus held, “[f]or criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose
{¶10} In his motion to correct a void sentence and request for resentencing filed June 16, 2010, appellant argued during his sentencing, the trial court erred in imposing postrelease control because he was informed postrelease control was mandatory “up to a maximum of 5 years” when in fact five years was the mandatory time:
{¶11} “The trial court in defendant‘s sentencing entry only journalized the post release control period for ‘maybe the Maximum term of five years.’ (sic) on page (2) of the sentencing entry. As required by
{¶12} In the trial court‘s judgment entry on sentencing filed November 8, 2000, postrelease control was imposed as follows:
{¶13} “The Court has further notified the defendant that post release control is mandatory in this case up to a maximum of 5 years, as well as the consequences for violating conditions of post release control imposed by the Parole Board under
{¶15} “I have been advised by my attorney and the court that in addition to my sentence, a period of control or supervision by the Adult Parole Authority after my release from prison is mandatory in this case. The control period may be a maximum term of five years. A violation of any post-release control rule or condition can result in a more restrictive sanction while released, an increased duration of supervision or control, up to the maximum set out above and/or re-imprisonment even though I have served the entire stated prison sentence imposed upon me by this court for all offenses set out above. Re-imprisonment can be imposed in segments of up to 9 months but cannot exceed a maximum of ½ of the total term imposed for all of the offenses set out above. If I commit another felony while subject to this period of control or supervision I may be subject to an additional prison term consisting of the maximum period of unserved time remaining on post release control as set out above or 12 months whichever is greater. This prison term must be served consecutively to any term imposed for the new felony I am convicted of committing.”
{¶16} There is no doubt that appellant was notified of mandatory postrelease control and assented to it. However, appellant argues his sentence is void because he was not informed that the mandatory term was five years as opposed to “up to” five years.
{¶17} Upon review, we find the trial court erred in denying appellant‘s motion to correct a void sentence and request for resentencing. Appellant is entitled to a de novo sentencing hearing as mandated in Singleton, supra. We note the new sentencing hearing “is limited to proper imposition of postrelease control.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph two of the syllabus.
{¶18} Assignment of Error I is granted.
II
{¶19} Appellant claims the trial court erred in denying his
{¶20}
{¶22} “In the instant case, the defendant‘s plea agreement (at pg. 2) states that ‘the control period may be a maximum of five years.’ (emphasis added). This notification in the agreed upon sentence constitutes a notification of a discretionary period of post release control for a period of 1, 2, 3, or 5, years of supervised released by the parole authority after defendant‘s release from incarceration.
{¶23} “In fact,
{¶24} “***
{¶25} “When defendant‘s agreed upon sentence only informed him of a discretionary period of post release control, it failed to comply with the mandates of
{¶26} In State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶30-32, the Supreme Court of Ohio explained the following:
{¶28} “When a trial judge fails to explain the constitutional rights set forth in
{¶29} “When the trial judge does not substantially comply with
{¶30} As cited under Assignment of Error I, postrelease control language was included in the plea agreement, albeit incorrectly. We note a transcript of the November 3, 2000 plea/sentencing hearing was not provided for our review.
{¶31} Appellant has not demonstrated that but for the trial court‘s error, he would not have entered the guilty plea and gone to trial instead. Appellant has not shown “a prejudicial effect.” We do not find a manifest injustice mandating a withdrawal of appellant‘s guilty plea.
{¶32} Upon review, we find the trial court did not abuse its discretion in denying appellant‘s
{¶33} Assignment of Error II is denied.
By Farmer, J.
Gwin, P.J. and
Edwards, J. concur.
s/ Sheila G. Farmer
s/ W. Scott Gwin
s/ Julie A. Edwards
JUDGES
SGF/sg 203
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio is affirmed in part and reversed in part, and the matter is remanded to said court for further proceedings consistent with this opinion. Costs to be divided equally between the parties.
s/ Sheila G. Farmer
s/ W. Scott Gwin
s/ Julie A. Edwards
JUDGES