STATE OF OHIO, Plaintiff-Appellee -vs- TERRANCE HENDERSON, Defendant-Appellant
Case No. 10-COA-012
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
April 8, 2011
2011-Ohio-1791
Julie A. Edwards, P.J.; W. Scott Gwin, J.; Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Criminal Appeal from Ashland County Court of Common Pleas Case No. 06-CRI-130; JUDGMENT: Reversed and Remanded
For Plaintiff-Appellee
RAMONA FRANCESCONI ROGERS
Ashland County Prosecutor’s Office
110 Cottage Street, Third Floor
Ashland, Ohio 44805
PAUL T. LANGE
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, Ohio 44805
For Defendant-Appellant
TERRANCE HENDERSON
Inmate No. A530688
Richland Correctional Institute
1001 Olivesburg Road
P.O. Box 8107
Mansfield, Ohio 44901-8107
O P I N I O N
{¶1} Defendant-appellant, Terrance Henderson, appeals from the April 27, 2010, Judgment Entry of the Ashland County Court of Common Pleas overruling his Motion to Correct Void Sentence. Plaintiff-appellеe is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 18, 2006, the Ashland County Grand Jury indicted appellant on one count of possession of marijuana in violation of
{¶3} Subsequently, a jury trial commenced on May 8, 2007. The jury found appellant guilty as charged. Pursuant to a Judgment Entry filed on Junе 8, 2007, the trial court sentenced appellant to five years in prison. The trial court also terminated appellant’s post-release control and ordered appellant to serve an additional six hundred fifty-nine (659) days consecutive to the five year sentence.
{¶4} Appellant then filed an appeal. Appellant, in his appeal, argued thаt the trial court erred in denying his Motion to Dismiss on speedy trial grounds, erred in denying his Motion to Suppress and that the verdict was against the manifest weight of the evidence. Pursuant to an Opinion filed on September 26, 2008, in State v. Henderson, Ashland Case No. 07COA031, 2008-Ohio-5007, this Court affirmed appellant’s conviction and sentence.
{¶5} Thereafter, on November 10, 2009, appellant filed a Motion to Correct Void Sentence. Appellant, in his motion, argued that the 659 days of post release control sanction time imposed by the trial court stemmed from a previous conviction that appellant had in Lorain County Case No. 01CR058507. In the Lorain County case,
{¶6} In turn, appellee, in its response to appellant’s motion, argued, in part, that apрellant was on post-release control in numerous criminal cases other than the Lorain County case at the time he was sentenced in the case sub judice, including another case from Lorain County and cases from Richland and Crawford Counties. In his reply, appellant argued that each of the sentencing orders issued prior to the case sub judice wеre nullities because appellant had not been properly advised of post-release control in the cases that appellee cited to and that the sentencing entries were, therefore, void.
{¶7} As memorialized in a Judgment Entry filed on April 27, 2010, the trial court overruled appellant’s motion.
{¶8} Appellant now raises the following assignment of error on appeal:
{¶9} “THE TRIAL COURT ERRED, CLAIMING THE CURRENT SENTENCING ORDER WAS PROPERLY ISSUED WITH POST RELEASE CONTROL SANCTION TIME.”
I
{¶10} Appellant, in his sole assignment of error, argues that the trial court erred in overruling his Motion to Correct Void Sentence. We agree.
{¶12}
{¶13} In State v. Jordan the Court further held that “[w]hen a trial court fails to notify an offender about post-release control at the sentencing hearing, but incorporates that notice into its journal entry imposing sentence, it fails to comply with the mandatory
{¶14} “[T]he effect of vacating the sentence places the parties in the same position as they were had there been no sentence.” State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, supra at paragraph 13 citing Romito v. Maxwell (1967), 10 Ohio St.2d 266, 267, 227 N.E.2d 223. Thus, the offender is entitled to a de novo sentencing hearing. Id.
{¶15} A trial court retains jurisdiction to correct a void sentence and is authorized to do so when its error is apparent. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864 at paragraph 23. Res Judicata does not act to bar a trial court from correcting the error. State v. Simpkins, 117 Ohio St.3d 402, 2008-Ohio-1197, 884 N.E.2d 568, citing State v. Ramey, Franklin App. No. 06AP-245, 2006-Ohio-6429, at paragraph 12.
{¶16} In State v. Fischer, --- N.E.2d ----, 2010-Ohio-6238, syllabus, the Supreme Court of Ohio limited the nature of the de novo hearing as follows: “2. The new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control. (State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus, modified).” Thus, as stated by the Fischer court in paragraph two of the syllabus, the new sentencing hearing is limited to the proper imposition of postrelease control.
{¶18} In the case sub judice, appellant was sentenced in July of 2002, in Richland County Case No. 01 CR 018OH after being convicted of illegal conveyance of drugs in violation of
{¶19} Appellant also was sentenced in April of 2002, in Crawford County Case No. 01-CR-0075 after being convicted of assault of a рolice officer in violation of
{¶20} In Lorain County Case No. 01CR057450, аppellant, in June of 2002, was sentenced for possession of cocaine in violation of
{¶21} Finally, appellant was sentenced in 2002, in Lоrain County Case No. 01CR058029 for domestic violence in violation of
{¶22} In short, we find that the trial courts’ entries in the above cases out of Richland, Lorain and Crawford Counties did not properly advise appellant regarding post-release control. The sentences in such cases were vоid as they relate to post-release control. The trial court, in the case sub judice, therefore, erred in imposing the remaining 659 days of post-release control time as additional prison time on appellant.
{¶24} Accordingly, the judgment of the Ashland County Court of Common Pleas is reversed and this matter is remanded for resentencing.
By: Edwards, P.J.
Delaney, J. concurs and
Gwin, J. dissents
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JUDGES
JAE/d1119
{¶25} I respectfully dissent from the majority’s opinion and would affirm the judgment of the Ashland County Court of Common Pleas, but for different reasons.
{¶26} I begin my analysis by noting a reviewing court is not authorized to reverse a correct judgment merely because it was reached for the wrong reason. State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty, 121 Ohio St.3d 507, 905 N.E.2d 1192, 2009 -Ohio- 1523 at ¶ 21; State v. Lozier (2004), 101 Ohio St.3d 161, 166, 2004-Ohio-732 at ¶46, 803 N.E.2d 770, 775. [Citing State ex rel. McGinty v. Cleveland City School Dist. Bd. of Edn. (1998), 81 Ohio St.3d 283, 290, 690 N.E.2d 1273]; Helvering v. Gowranus (1937), 302 U.S. 238, 245, 58 S.Ct. 154, 158.
{¶27} The Supreme Court explained the difference between a sentence that is “void” from one that is “voidable.” “A void sentence is one that a court imposes despite lacking subject-matter jurisdiction or the authority to act. State v. Wilson (1995), 73 Ohio St.3d 40, 44. Conversely, a voidable sentence is one that a court has jurisdiction to impose, but was imposed irregularly or erroneously. State v. Filiaggi (1999), 86 Ohio St.3d 230, 240.” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642 at ¶20.
{¶28} In the case at bar, the Ashland County Court of Common Pleas had subject matter jurisdiction and personal jurisdiction over appellant in order to impose post release control when sentencing him. By statute the Ashland County Court of Common Pleas was authorized tо impose the unexpired term of appellant’s post release control even though the post release control had been imposed by a court outside of Ashland County.
{¶30} “(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 thаt 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 сontrol for the earlier felony.
{¶31} “* * *.” (Emphasis added).
{¶32} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph one of the syllabus, the Ohio Supreme Court recently held that “[f]or criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose post release control, trial courts shall conduct a de novo sentencing hearing in accordance with decisions of the Supreme Cоurt of Ohio.”
{¶33} In reviewing decisions where post release control was lacking, the Singleton court noted:
{¶35} “We again confronted a sentencing court‘s failure to notify or incorporate post release control into its sentencing entry in Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301; however, in that case, discovery of the sentencing error did not occur until after the offender had been relеased from prison, placed on post release control by the parole board, and re-imprisoned for violating the terms of post release control. Id. at ¶ 4-7, 844 N.E.2d 301. There, we granted a writ of habeas corpus in conformity with our decisions in Jordan and [Woods v. Telb, 89 Ohio St.3d 504, 2000-Ohio-171, 733 N.E.2d 1103], holding that the parole board lacked authority to impose post release control because thе trial court had failed to notify the offender of post release control or to incorporate it into the sentencing entry and because Hernandez had completed serving that sentence when the error was discovered. Id. at ¶ 32, 844 N.E.2d 301.
{¶36} “* * *
{¶37} “In State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, we concluded that an offender is entitled to a de novo sentencing hearing for the trial
{¶38} “ * * *
{¶39} “Most recently, in State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, we * * * held that when a court fails to impose post release control before an offender completes the stated term of imprisonment, under either our case law or
{¶40} Finally, the Ohio Supreme Court in State v. Fischer, Slip Opinion No. 2010-Ohio-6238, limited its holding in Bezak and concluded that the defendant is only entitled to a hearing for the proper imposition of post release control. Accordingly, appellant may not raise new issues, or issues he had previously raised on his direct appeal. See also, State v. Ketterer, 126 Ohio St.3d 448, 935 N.E.2d 9, 2010-Ohio-3831.
{¶41} According to the Supreme Court’s line of cases, appellant’s remedy for not being properly advised concerning post-release controls would be to vacate and remanded the cases for resentencing. The sentencing decision from which appellant has filed this appeal was rendered by the Ashland County Court of Common Pleas on June 8, 2007. But, appellant is, in reality, collaterally attacking the judgments of the Court of Common Pleas of Richland, Crawford and Lorain Counties.
{¶43} Additionally, the Ohio Constitution grants courts of appeals “such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district.”
{¶44} The Ashland County Court of Common Pleas was therefore without jurisdiction to declаre the judgments of the Courts of Common Pleas of Crawford, Lorain and Richland Counties void. I likewise note that, since Crawford and Lorain Counties do not lie within our territorial jurisdiction, this Court does not have the ability to review a final judgment of the Crawford or Lorain County Court of Common Pleas.
{¶45} Appellant’s remedy for any sentence he claims lacks the proper imposition оf post release control is to request from the trial court that issued the sentence either:
{¶46} Accordingly, I would affirm the judgment of the Ashland County Court of Common Pleas, albeit for different reasons.
HON. W. SCOTT GWIN
STATE OF OHIO, Plaintiff-Appellee -vs- TERRANCE HENDERSON, Defendant-Appellant
CASE NO. 10-COA-012
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
2011-Ohio-1791
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Ashland County Court of Common Pleas is reversed and this matter is remanded for resentencing. Costs assessed to appellee.
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JUDGES