State v. Jones, 06 Ma 17 (2-20-2009)State v. Jones, 06 Ma 17 (2-20-2009)
¶ {1} In a reopened appeal, defendant-appellant William Jones contests the post-release control portion of his sentence entered by thе Mahoning County Common Pleas Court. The issue presented is whether the trial court‘s language at the sentencing hearing and in the sentencing entry sufficiently fulfilled the court‘s duties regarding рost-release control. Appellant seeks remand for resentencing. For the following reasons, appellant‘s sentence is vacated and the casе is remanded for resentencing.
STATEMENT OF THE CASE
¶ {2} Appellant was convicted of four drug trafficking offenses: a second degree felony, a third degree felony and two fourth degree fеlonies. He was sentenced to a total of eleven and one-half years in prison. At the January 9, 2006 sentencing hearing, after announcing the sentences, the court stated, “Upon your release from the penitentiary you‘ll be ordered to serve an additional term of up to three years of post-release control.” (Tr. 34). The court then explained certain features of post-release control. (Tr. 34-35). On this topic, the January 13, 2006 sentencing entry stated merely, “Defendant was also advised pursuаnt to R.C.
¶ {3} Appellant filed timely notice of appeal, and this court affirmed his convictions in State v. Jones, 7th Dist. No. 06MA17, 2007-Ohio-7200. He then filed a timely application for reopening, which this court granted on June 26, 2008 as to the post-release control issue. We then appointed new appellate counsel. We accepted briefs from both appellant and counsel.
ARGUMENTS
¶ {4} Appellant notes that a sentence for a second degree felony shall include a requirement that the offender be subject to a period of “three years” of post-release control imposed by the parole board after the offender‘s release from imprisonment. See R.C.
¶ {6} The state believes that a court satisfies its duty if it either provides notice regarding post-release control at sentencing or in its judgment entry and that the notice need only generally advise the defendant that post-relеase control exists. The state alternatively argues that the remedy for a failure is not resentencing but is merely an order for the trial court to issue a corrected entry, even if the failure is not merely in the entry but occurred at sentencing as well.
LAW ANALYSIS
¶ {7} Pursuant to R.C.
¶ {8} We stop here to point out that contrary to the state‘s contention, this language does not provide the option of providing the notice imposing post-relеase control in the entry or doing so orally. Rather, it requires notice at sentencing and in the entry because it states that if the court fails to do either, then further action is required before post-release control is valid. As will be seen below, case law also requires notice both at sentencing and in the entry.
¶ {9} Even before the enаctment of these statutory provisions, the trial court has been permitted to sua sponte or at the urging of the state recall the prisoner for resentencing where it is discovered that sentencing was lacking in this regard as long
¶ {10} There is also a standard procedure for those cases with faulty post-release control notifications that are pending on direct appeal. Specifically, where post-release control issues are raised on appeal and where the defendant has not yet been released from the relevant term of imprisonment, the reviewing court can remand for resеntencing. See id. at ¶ 27, 40. See, also, State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, ¶ 16.
¶ {11} Contrary to the state‘s argument, the newly codified procedures in the aforementioned statutes for use when the trial court wishes to correct pоst-release control problems do not preclude remand for resentencing by a reviewing court in a direct appeal of that sentence. See id. The existence of R.C.
¶ {12} As aforementioned, the court‘s oral language of “up to three years” is a statement that appellant may be subject to less than three years, pоssibly even no years, of post-release control. However, three years is a mandatory term of post-release control for the second degree felony. R.C.
¶ {13} The Supreme Court‘s Osborne case is also enlightening. There, the Eighth District refused to vacate a sentence in a direct appeal of a case where (as here) the trial court had advised the defendant that he would subject to “up to three years” of post-release control rather than advising that he would be subject to the entire three years of post-release control. State v. Osborne, 8th Dist. No. 88453, 2007-Ohio-3267, ¶ 39, citing Watkins, 111 Ohio St.3d 425. However, the Supreme Court summarily rеversed that appellate decision under Bezak and remanded the case. State v. Osborne, 116 Ohio St.3d 1228, 2008-Ohio-261, ¶ 2.
¶ {14} Besides the problem with the erroneous notice provided at the sentencing hearing, there is also an issue here with the sentencing entry, and as aforementioned, resentencing is warranted where either the oral advice or the written advice is lacking. It has been held that a vague statement in a sentencing entry that the defendant understood the possibility of post-release control was not sufficient incorporation of this sentencing term. See Watkins, 11 Ohio St.3d 425 at ¶ 48, citing State v. Gensley, 110 Ohio St.3d 1474, 2006-Ohio-4474. Here the sentencing entry merely stated that appellant “was advised pursuant to R.C.
¶ {15} For the foregoing reasons, appellant‘s sentence is vacated and this case is remanded to the trial court for resentencing.
Waite, J., concurs.
DeGenaro, J., concurs.