THE STATE OF OHIO, APPELLEE, v. JORDAN, APPELLANT.
Nos. 2008-2119 and 2008-2172
Supreme Court of Ohio
Submitted October 21, 2009—Decided February 4, 2010.
124 Ohio St.3d 397, 2010-Ohio-281
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and John A. Cumming, Assistant Prosecuting Attorney, for appellee Montgomery County Board of County Commissioners.
Moore & Associates and Joseph P. Moore, for appellee city of Union.
Rinehart & Rishel, Ltd., and Christopher A. Rinehart; and Brown Law, Ltd., and Stephen D. Brown, urging reversal for amicus curiae Berlin Township Board of Trustees.
Loveland & Brosius, L.L.C., Donald F. Brosius, and Peter N. Griggs, urging reversal for amici curiae Ohio Township Association and the Coalition of Large Ohio Urban Townships.
John E. Gotherman, urging affirmance for amicus curiae Ohio Municipal League.
I
{¶ 1} The Third District Court of Appeals certified the following issue pursuant to Section 3(B)(4), Article IV of the Ohio Constitution and App.R. 25: “If a defendant is under actual detention, can the defendant be convicted of escape under
{¶ 2} The determinative issue in this case is more narrow than the question certified by the court of appeals. We have previously held that the version of
II
{¶ 3} Rusty Jordan, appellant, pleaded guilty to several felonies in 2006. In its entry, the sentencing court imposed a three-year term of postrelease control. Jordan complied with the terms of his postrelease control for several months, reporting regularly to his parole officer. Jordan eventually failed to report for scheduled meetings with his parole officer, and it was determined that he had abandoned his approved residence. Eventually, Jordan was located, arrested, and charged with escape under
{¶ 4} On appeal, Jordan argued that the state had not proven that he was “under detention” for purposes of
{¶ 5} The court of appeals certified that its judgment conflicted with the judgment of the Ninth District Court of Appeals in State v. North (Oct. 9, 2007), Lorain App. No. 06CA009063, 2007-Ohio-5383, 2007 WL 2916133. We recognized the conflict, accepted Jordan‘s appeal, and consolidated the cases. State v. Jordan, 120 Ohio St.3d 1484 and 1486, 2009-Ohio-278, 900 N.E.2d 196, 197.
III
{¶ 6} Jordan‘s argument can be divided into the following components. The criminal escape statute,
{¶ 8} The state provided ample evidence that Jordan was under the supervision of the Department of Rehabilitation and Correction. The relevant sentencing entry states that Jordan “may be subject to a period of three (3) years of postrelease control.” Jordan was also advised of his postrelease control two weeks before his release from prison.
{¶ 9} Jordan signed a document detailing the conditions of his monitored time (one type of postrelease control) on the day after his release from prison. This document stated: “I understand if I am a releasee and abscond supervision, I may be prosecuted for the crime of escape, under
{¶ 10} When he was placed on basic supervision, his parole officer met with him, explained the terms of basic supervision, and provided him with a document entitled “Conditions of Supervision.” This document also included the statement “I understand that if I am a releasee and abscond supervision, I may be prosecuted for the crime of escape, under
{¶ 11} Based on this evidence, we hold that the state proved beyond a reasonable doubt that Jordan was subject to supervision by the Department of Rehabilitation and Correction. The evidence shows that Jordan was “under detention” as “detention” is defined in
{¶ 12} Jordan directs us to the lack of proof in the record that the court orally advised him during sentencing that he would be subject to postrelease control. He directs us to cases in which we held that oral notification of postrelease
{¶ 13} A reviewing court need not dwell on the question whether the sentencing court advised the defendant of postrelease control at the sentencing hearing when the record is silent in that regard and there is uncontroverted evidence that the accused was indeed subject to supervision by the Department of Rehabilitation and Correction. Of course, it would be better practice for trial courts to note in the written sentencing entry that the defendant was orally advised of postrelease control on the record, and it may be advisable for the state to introduce transcripts or testimony, when available, to that effect. But when, as here, the evidence sufficiently proves that the defendant was under detention, such silence in the record is not fatal to the state‘s case. To obtain a conviction for escape under
{¶ 14} Our holding today does not reach the question whether a defendant can be convicted of escape when the evidence affirmatively demonstrates that the Department of Rehabilitation and Correction lacked the authority to supervise the accused. In North—the case that was cited by the court of appeals as being in conflict with this case—the evidence established that the sentencing court failed or declined to impose postrelease control upon the defendant. North, 2007-Ohio-5383, 2007 WL 2916133, at ¶ 7-8. The provision of North‘s sentencing entry that imposed postrelease control had been struck through by the sentencing court. Id. at ¶ 7. Citing Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, the court of appeals held that the Adult Parole Authority lacked authority to impose postrelease control on North. Id. Consequently, the court held, North could not be convicted of escape, because he was never legally under supervision. Id.
{¶ 15} In this case, there was no evidence that postrelease control was improperly imposed or that the Department of Rehabilitation and Correction
IV
{¶ 16} For the foregoing reasons, we answer the narrowed issue in the affirmative and affirm the judgment of the court of appeals.
Judgment affirmed.
LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, and CUPP, JJ., concur.
PFEIFER and LANZINGER, JJ., dissent.
LANZINGER, J., dissenting.
{¶ 17} I respectfully dissent because the majority opinion relieves the state of its obligation to prove detention as an element of escape under
{¶ 18} Jordan argues that to prove that he was under detention for purposes of escape, the state must show that the court properly advised him of postrelease control when he was sentenced. This argument is persuasive, considering a line of decisions of this court. We have ruled that unless the defendant is advised of postrelease control both at the sentencing hearing and in the judgment entry, the Adult Parole Authority is without authority to impose it. Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, at ¶ 20, quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 9. Although in this case there is a sentencing entry that includes three years of postrelease control, the state has not provided evidence that the defendant was orally notified of postrelease control at the sentencing hearing.
{¶ 19} The majority holds that “the state may prove that an accused was under detention for purposes of a prosecution for escape under
{¶ 20} In failing to require the state to show proper oral notification to the defendant, the majority retreats from the idea that unless a defendant is notified of postrelease control at sentencing, the sentence is void. See State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961; Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864. “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.) Romito v. Maxwell (1967), 10 Ohio
{¶ 21} The majority opinion distinguishes Bezak and Jordan because in those cases, the defendants directly appealed the validity of postrelease control as part of their sentence. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 3-4; Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 2-3. It states that Bezak and Jordan would control if this case had arisen “as a direct challenge to Jordan‘s postrelease control via an appeal of his sentence.” Majority opinion at ¶ 12. However, cases such as State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, show that a void sentence need not be challenged on direct appeal.
{¶ 22} From now on, apparently, the following will be sufficient proof of “detention“: postrelease control in the sentencing entry, the defendant‘s knowledge of postrelease control before release from prison, the defendant‘s signature on a form detailing monitored-time conditions, or the defendant‘s contact with his or her parole officer. However, permitting these forms of proof contradicts precedent by allowing a defendant serving a void sentence, one that has “no effect,” to be convicted of a new crime of escape, even though the underlying sentence that allegedly imposed the detention is void. The majority concludes, “Our holding today does not reach the question whether a defendant can be convicted of escape when the evidence affirmatively demonstrates that the Department of Rehabilitation and Correction lacked the authority to supervise the accused.” (Emphasis added.) Majority opinion at ¶ 14. Nevertheless, the state need not provide affirmative evidence of a valid detention as an element of escape by showing that there is a valid sentence allowing postrelease control of the accused. Thus, the state receives the benefit of the doubt on an element of the offense, even though a missing notification renders void a sentence for which postrelease control was imposed in the sentencing entry.
{¶ 23} I would require the state to prove that a defendant was notified of postrelease control at sentencing to show that the defendant was under valid detention for purposes of escape. I respectfully dissent and would reverse the defendant‘s conviction.
PFEIFER, J., concurs in the foregoing opinion.
Brent W. Yager, Marion County Prosecuting Attorney, and Denise M. Martin, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for appellant.